Merits Positions and Supreme Court Voting on Stays and Injunctions, by Greg Goelzhauser (also the author of The Applications Docket). “This paper presents empirical evidence that Supreme Court voting on stays and injunctions is associated with justices' expected preferences for resolving the merits. This result is especially pronounced when the merits remain pending before a lower court.”

The Interim Docket, by me. My take on the transformation of the Shadow Docket, both in name and substance, with some suggestions about what has been lost and might be recovered. Still waiting on SSRN approval, but you can download the PDF here.

The Court’s latest Voting Rights Act decision, Louisiana v. Callais, narrows Section 2 in a way that could reshape redistricting, weaken majority-minority districts, and intensify the fight over how race and partisanship interact in elections. … We walk through the statutory text, the long-running collision between the Voting Rights Act and the Court’s racial gerrymandering cases, and the practical consequences for future election-law litigation. … The conversation also covers the Court’s emergency procedural move after judgment, Justice Kagan’s forceful dissent, and the broader question of whether the decision is likely to help one party more than the other in the short run.

Comments welcome!

What explains the difficulty of converging on a name for this, well, unnamable docket? And what does the answer to that question tell us about how best to proceed in the naming wars? These questions strike at some of the central difficulties in our legal system at present – difficulties that are more cultural than procedural, and that stretch far beyond the marble palace at One First Street.

I. Explanations

The key question is descriptive: Why in fact is it so hard to agree on a name for this docket or set of judicial practices?

1. Different practices

Part of the difficulty is that we are trying to apply a single name to an evolving set of practices. When Will Baude coined the term “shadow docket” in 2015, he was talking primarily about summary reversals, which at the time were a significant if somewhat obscure feature of the justices’ work. These relatively marginal rulings typically involved a short opinion published without briefing or oral argument on the court’s “orders list.”

Although focused on summary reversals, Baude defined “shadow docket” very broadly, essentially encompassing anything other than plenary (full) review, even including certiorari denials. And so, that broad term came to cover an emergent set of practices over the last decade that it is worth disaggregating. There may be a need for more than a few names; the relevant docket, we might say, is a “they” not an “it.”

Before splitting the bundle, we might start with what could unify the set of practices to which these terms often refer. One potentially unifying characteristic is speed. Sometimes the justices have to act within days or even hours or lose jurisdiction, making the “emergency docket” seem apt; “lightning docket” or “expedited docket” have been used when the justices rush to decide the merits of the case before full proceedings. (Rocket docket is, regrettably, taken).

But speed alone fails to meaningfully capture some portion of what the court is doing. For one thing, not all the decisions on the docket are equally fast: the stay ruling in Trump v. CASA, which limited courts’ abilities to issue nationwide injunctions, involved oral argument and opinion-writing (though still no regular briefing). For another, focusing on speed alone misses important substantive dimensions of the court’s practice. Stay decisions, for instance, are doing something qualitatively different, not just faster than, the plenary docket – as evidenced by their distinctive standards of review and unclear precedential effect.

Two other candidates – lack of visibility and deviation from normal practice – suffer from similar problems. While perhaps the unnamable docket was once shadowy and behind-the-scenes, some decisions – like CASA – involved publication of a full opinion in the U.S. Reporter and at least as much attention as any other ruling that term. And while deviation from normal practice led one of us to see appeal in “irregular docket,” are these practices really still irregular, as they have become increasingly commonplace?

These issues could be a sign that we need not one name, but varied names for diverse dockets. For example, the “interim docket” by its terms seems to apply only to interim relief such as stays, and so is a narrower category. Perhaps certiorari, summary review, and stay practice are three distinct categories, tracking different procedures. Along those lines, the “equity docket” might aptly describe cases, including CASA, in which parties are seeking equitable remedies like injunctions or stays. This narrower framing isolates a discrete doctrinal question: how the equitable principles governing the various actions within the docket have become unclear or have shifted, at least according to many of the docket’s critics.

2. Different inquiries

Different names have different framing effects, helping indicate what practices should or should not be tolerated. Of course, people have divergent prescriptive reasons to favor one frame or another.

For example, calling it the “emergency docket” may make us assume the existence of an emergency. Proponents of the court’s behavior have sometimes desired that favorable framing. Justice Samuel Alito promoted that label several years ago, prompting critics to argue that he was inappropriately helping himself to a legitimate-sounding name. Who, after all, could be against handling emergencies?

Recently, however, Justice Ketanji Brown Jackson, a staunch critic of the court’s practices, gave a speech using the “emergency docket” term and asserting that there is no such thing as an “interim docket.” Her aspirational use of the term “emergency docket” supported her claim that the justices should issue the relevant type of relief only when there is a true emergency – not simply to override lower courts.

Or again consider the “shadow docket.” To be connected with shadows sounds spooky, nefarious, and exciting. Indeed, Baude picked the name partly to connote those sorts of qualities. His originally planned title was “Paying Attention to the Orders List,” but savvy advice from fellow scholar Justin Driver moved him toward a zippier moniker. Alas, branding, even (or especially) when brilliant, can also be misleading. Or so critics, including Justice Alito, have complained.

The “interim docket” label aspires to be more clinical and precise. Certain modes of relief do indeed relate to interim orders, as contrasted with final judgments on the merits. But whether to adopt a bland or technical approach is itself controversial. Critics of that term object that supposedly “interim” relief can be effectively conclusive. And they may be averse to bloodless discussion of lamentable rulings.

3. Different goals

Finally, it is a truism that different commentators and legal practitioners have sharply different legal and political opinions about these practices. It is hard to get consensus on anything in a polarized environment, and the naming issue bears out that problem.

The term “supreme Court” appears in the Constitution and so has been settled for a long time. But if we had to identify a name for the Supreme Court today, could we come up with one by consensus? Or would many people complain that “supreme” is either inaccurate or inappropriately laudatory – and is it even really a “Court”?

Some people might want to organize political movements around one or another term. Use of language can then mark people as belonging to opposing camps. Think for example of the difference between “undocumented immigrant” and “illegal alien.” Even our vocabulary may divide us. And how can there be compromise or consensus when the divisions are built into the very terms of conversation?

Some people may also have professional, reputational, or commercial interests in preserving certain terms, or in unsettling those terms in favor of others. Here too the logic of branding comes into play.

These dynamics are perhaps most obvious in connection with the justices themselves, who have an interest in either defending (if they are in the majority) or criticizing (if not) the court’s own work. Some years ago, for example, Justice Elena Kagan got on and then off the “shadow docket” bandwagon. Alito opposed that term and favored “emergency docket.” Justice Brett Kavanaugh just last year began to push the “interim docket.” And Jackson has recently sided with Alito and against both Kagan and Kavanaugh by embracing “the emergency docket.”

Perhaps the justices will hold a vote on the proper terminology.

II. A modest proposal: vive la différence!

Is there anything actionable to do, now that we have a better grip on why this set of practices is in fact so hard to name?

Perhaps we should be resigned to unnameability. Nobody can “make fetch happen,” and language may be above any of our pay grades.

Yet the natural drift of language has special costs in this context. First, if the mere choice of term reinforces team or tribal allegiances, it can obscure common ground or shared interest in compromise. More generally, the costs of imprecision and tribalism here may be inhibiting our capacity to see like cases alike or to clearly identify aberrations. Can we assess how discrete features of Supreme Court practices and standards are changing if our data set is so muddled?

To address that concern, we might try to avoid linguistic indicators of tribal allegiance. That is, we might construe the various “docket” terms as nonredundant and specialized, such that the various options can and should be used by anyone. If we endeavor to use many terms to mean discrete things, then perhaps we can reduce the odds of tribal organization around the use of language.

Accuracy and precision likewise point toward nominal pluralism and even fluidity. As we have seen, the court is doing several distinct things, its practices are in flux, and its activities can be assessed according to different criteria. In this context, it makes sense to embrace terminological diversity and dynamism.

For instance, “the shadow docket” may still work for some purposes, but it does not make sense as the one and only label for what we are talking about. The biggest problem with that singular term, in other words, is that it implicitly claims exclusivity – and so invites competing claims to terminological hegemony. That problem dissipates if we can remember that there are several overlapping “dockets.”

We might say that there are shadow dockets – plural – pertaining to certiorari, stays, injunctions, and other matters. And that there are also equitable dockets pertaining to stays and injunctions. And also emergency dockets regarding capital cases, certain stays, certiorari before judgment, and plenary rulings issued on an expedited schedule. No one choice of labels is categorically right or wrong.

These different terms might also help us separate different aspects or dimensions of what we are interested in. Are we focused on a decision’s speed, lack of visibility, deviation from settled practice, legal effect, procedural demands, or precedential import? (Perhaps there are still other types of “docket” yet to be coined.)

True, we may sometimes want a catchall term, for expressive convenience if nothing else. And for those occasions, we should choose a phrase that is a bit unstable and a tad self-aware. How about – “the unnamable docket”?

Cross-posted from SCOTUSBlog.

How the Gentry Won: Property’s Law Embrace of Stasis, by Rick Hills and David Schleicher. A critique of the past half-century of land use law, through the lens of The Wire: “We used to make shit in this country, build shit.”

There is also of course my Abuse of Power in the Second Trump Administration, linked yesterday.

And Supreme Court’s Gutting of Voting Rights Provision Was a Long Time Coming: Rick Pildes on Louisiana v. Callais. Many fascinating claims in this piece, including that the success of post-2020 redistricting litigation was a catalyst for the SCOTUS backlash; that the long-term partisan consequences of Callais are hard to predict; and that the best Congressional response would be to move beyond "[t]he race-discrimination model” in favor of “the model of strong universal protection for the voting rights of all citizens.”

Here’s how the piece begins:

I’m going to begin with the question that Mike Paulsen asked me when he first invited me to this symposium: “Aren’t the law firm executive orders the most unconstitutional thing this administration has done so far?”

My immediate answer was “no, that’s the birthright citizenship executive order.” The birthright citizenship order directly contravenes an explicit provision of the Constitution—that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The order contravenes the original meaning of that Clause of the Fourteenth Amendment, and also liquidated constitutional practice. And it does so on a subject where the President has no authority anyway. The President has no authority over naturalization or over national jurisdiction.

Or perhaps I could have said the executive suspension of the TikTok Ban. There the administration announced the suspension of a law passed by bipartisan majorities of Congress and upheld as constitutional by the U.S. Supreme Court. Without even purporting to find that the law is unconstitutional, the administration announced that it just wasn’t going to enforce it, which violated the constitutional obligation to “take care that the laws be faithfully executed.” And worse, the administration also promised that nobody could be penalized or held liable for their actions during the period of the purported suspension. While there is plenty of debate about the scope of enforcement discretion generally, and federal enforcement discretion specifically, a categorical and prospective waiver of a civil law, accompanied by get-out-of-penalty-free cards is the opposite of the constitutional obligation.

The law firm executive orders are in important respects not like the birthright citizenship order or the TikTok Ban suspension. They involve the use – and abuse – of real executive powers, rather than the assertion of non-existent powers. And in this sense they are more emblematic, more representative, of the constitutional questions raised by this administration.

Indeed, one of the distinctive patterns of the Trump Administration is the use – and abuse – of a broad range of constitutional and statutory powers to reward the friends and punish the enemies of the regime. . . .

You can read the whole (short) thing here.

We open with reporting on leaked internal Supreme Court memoranda related to the 2016 stay of the Clean Power Plan, including what the documents may reveal, why the leak itself is so unusual, and whether timing and incomplete records change the story. We also discuss Justice Sotomayor’s public apology after comments about Justice Kavanaugh, and what that moment says about judicial professionalism and public exchange.

From there, we turn to some shadow docket happenings: a one-line summary reversal in a Texas redistricting case and a Fourth Amendment summary reversal out of the D.C. courts. Finally, we move to the merits docket and consider Hencely v. Fluor Corporation (24-924), a case involving federal contractor preemption and a terrorist attack in Afghanistan, where the Court narrows a (possibly infamous) Scalia opinion.

As always, comments welcome!

Here is American Fragmentation and American Law, some timely remarks by Sam Bray: “This paper considers whether cultural and moral fragmentation in American society is a challenge for American law, and it advances three theses. First, the United States is morally fragmented, but that is tolerable, because a liberal legal order can exist without a consensus about moral norms. Second, there are two preconditions for a liberal legal order that are fading in the United States: a culture of persuasion and a shared expectation of our society as a going concern. Third, we have been here before, and sometimes it ended well.“

And continuing (and perhaps winding down) the conversation on the Clean Power Plan memos, I was in the New York Times on Friday titled Don’t Blame John Roberts for the Shadow Docket. (I was hoping for “the shadow docket has put the conflicts on superspeed.”) Meanwhile, Michael McConnell is in the Washington Post, with The Supreme Court’s not-so-sinister shadow docket.

I. Irreparable Injury and the Government’s Interests

Several eminent commentators have made the criticism that the memos reflect a specific instance of hypocrisy: Whereas the Court now routinely affords the government automatic irreparable injury when its laws or policies are obstructed by court order, that precept went unmentioned in the leaked memos.

The problem with criticisms like these is that they conflate two different legal doctrines. The Court has stated a rule that the government faces irreparable injury when its policies are blocked. But that is a rule that applies to the moving party. That is, when the government seeks to have a lower court order lifted, it is almost axiomatic that the lower court order injures the government, so the Court focuses on other factors, such as the merits of the case.

This rule had no application in the Clean Power Plan case because the Obama Administration was not the moving party. Instead, the challengers to Clean Power Plan were the moving party: they were the ones seeking a stay.

Now one could instead make a different, more nuanced and less doctrinal claim, that regardless of the technical doctrines at issue, the Court should exhibit a consistent level of concern for the interests of the federal executive branch. The Court should not favor the interests of preferred presidents or executive branch policies. This is, we emphasize, a different point. And it would have been much harder for critics to show that the Court failed to live up to that standard in the Clean Power Plan case.

For instance, the Chief Justice’s memo did explicitly consider it appropriate, based on case law, to balance the equities, but only if the case were close. Presumably consideration of the government’s interest could come into play at that stage. However, he argued in effect that the case was not relevantly close. Additionally, it is hard to compare the various cases across administrations without considering the way they are driven – perhaps appropriately – by the justices’ views of the merits.

The Court’s critics could of course argue for doctrinal reform. Perhaps the standards for interim and preliminary relief should be less merits-focused, or less focused on the movant’s injury and more focused on a more general form of equitable balancing. In a recent lecture, Justice Jackson argued for something like this kind of reform—though even she asked rhetorically in the Q&A (at 1:09): “How could you be harmed from being stopped from doing something you’re not allowed to do?”

We might favor some related reforms ourselves. But that possibility provides little reason to criticize the by-the-book treatment of the issue in the leaked memos; and still less reason for confusing the public about how this area of the law works.

2. The Overall Standard of Review

Another criticism is that the Chief Justice’s memo clearly applied the wrong standard of review. Here, too, the critics are at best overstating their case. The factors applied by the Chief Justice were sensible ones drawn from prior cases and the briefing before the Court.

And, notably, for all of the internal pushback from the dissenting justices, they did not push back on the standard of review. Perhaps this is because the details of the standard of review do not matter so much. In a somewhat novel case, any relevant substantive points can be channeled into the plausible alternative standards of review as well.

In our view, the proper legal analysis for cases like this one is not entirely clear—either at the time that the Court decided or today. Even the relevant legal authority for the Court’s action is unclear. Is it the All Writs Act? The stay provision of the Administrative Procedure Act? Something else?

Some authorities indicate that the test ought to be indisputable clarity. But it is not clear, so to speak, that the Court had adopted that test, and the justices had already seemed to dispense with it in an earlier ruling. One of us wrote a blog post on this topic back in 2014; and the other of us repeated the point in a 2015 article (called … “The Supreme Court’s Shadow Docket”)—both published well before the Clean Power Plan ruling in 2016.

Instead, the Court applied its normal equitable inquiry, citing both the general standard for a stay pending appeal and the standard for stays of administrative action set out in Nken v. Holder. These two standards are really applications of the same underlying principles. Both standards focus on a likelihood of success (which in this context includes an assessment of certworthiness) and irreparable injury to the moving party. The Chief Justice squarely addressed those critical points. When the government is a party, these standards also allow consideration of the balance of the equities in close cases. And the Chief Justice not only noted that point, but also had a clear view as to how it applied, particularly given the threat that he perceived to the Court’s authority.

If anything, the fact that the applicable standard of review was not entirely clear probably supported the justices’ decision not to publish their opinion. As often happens, the justices were still working out legal questions. That circumstance frequently counsels caution about elaborating seemingly firm legal principles or conclusions.

Perhaps the Court was wrong to rely so much on the likelihood of success, especially at such an early stage of the proceedings, and to be so concerned about the executive branch’s efforts to circumvent the judiciary. At the same time, those considerations are hardly unique to the Clean Power Plan case and they have reemerged when the justices faced other cases of fast-moving executive branch overreach. Take AARP v. Trump or the Illinois National Guard case.

Or perhaps critics simply disagree with the ultimate judgments the majority reached. That is fine, but a very different point from whether the memos reveal basic doctrinal errors or hypocrisies, which we doubt.

* * *

There is plenty of fodder to criticize in the Court’s shadow docket rulings over time and even the ultimate result as to the Clean Power Plan application. But what we learned from the memos was some insight into the Justices’ reasoning in this specific case, and frankly, that reasoning makes the Court look better than many of its critics.

Sometimes a case is meta. The Fifth Circuit’s recent Ten Commandments case, Nathan v. Alamo Heights Independent School District, aptly captures how deep into the wilderness our religious liberty doctrine is—out of the unpredictability and incoherence of the three-part Lemon v. Kurtzman test and the one-size-fits-all stricture of Employment Division v. Smith, but not yet into the promised land of doctrinal clarity. Unfortunately, the Fifth Circuit chose a path that leads to religious conformity. This is especially ironic since one of the principal critiques of Lemon and Smith was that they stacked the deck against freedom of conscience and religious pluralism. Hopefully the Supreme Court will use the case as an opportunity to reaffirm the historical principle that the First Amendment forbids coerced instruction in piety.

In Nathan v. Alamo Heights Independent School District, the court upheld a Texas law that requires every public school classroom to display the Ten Commandments on a poster at least 16 x 20” in size. The parents challenging the law are from an array of religious traditions, many holding the Ten Commandments sacred but disagreeing about their religious meaning. They argued that the displays violate the Establishment and Free Exercise Clauses of the First Amendment. The doctrines for both clauses are in flux, but the strongest claims under either rely on the same feature of the Texas law: it coerces children into an instructional setting that includes the Ten Commandments alongside other instructional materials. The walls of school classrooms are festooned with “stuff we expect you to learn,” like the state capitals, the cursive alphabet, the periodic table, and, in Texas, the Ten Commandments.

The fact that there is no “generic” or religiously de minimis version of the Ten Commandments—unlike, say, “In God We Trust” on U.S. coins--compounds the problem. The first five commandments require honoring a particular God. The version adopted by Texas is the one most frequently acceptable to Protestants, for they have used its prohibition on graven images to denounce Catholic and Orthodox iconography and Marian devotion. Similarly, the presentation is shorn from the narrative context so vital to Jews. As a Protestant, it is precisely because I consider the Ten Commandments to be sacred that I would strongly object to my children being daily exposed to a version that does not fully identify the God to be worshipped, especially when it is entrusted to the instructional authority of a replacement-level third-grade teacher.

How did the Fifth Circuit lose the plot? The court said it was following the Supreme Court’s instruction to apply the “historical practices and understanding” of religious liberty, but its reasoning is inconsistent not only with that history but also with the Supreme Court’s most recent decisions on point. Rightly eschewing Lemon’s three-part test, the Court first considered whether the law is tantamount to a founding-era “hallmark” of a religious establishment. One such hallmark, the court acknowledges, was “legal compulsion to attend church or engage in a formal religious exercise.” Op. 22 (quotation marks omitted). There is no question that students are compelled to attend public school; that schools ordinarily put instructional materials on the wall of public school classrooms; that the Ten Commandments, without a contextual framework that effectively objectifies them, instructs people in a particular form of religious piety; that one of the chief activities in Founding-era churches (as now) was instruction in religious piety; that the Ten Commandments were frequently posted on the wall of Founding-era churches—for the purpose of pious instruction. It does not take a logical guru to conclude that the law enjoins compulsory instruction in religious piety akin to the compulsory church attendance and religious exercise plainly forbidden by the original understanding of the Establishment Clause.

There are perhaps two counter-arguments. The first is that the posters are not instructional. This is where the Fifth Circuit judges’ imagination failed them. If not instructional, what are they, exactly? The other is that compulsory instruction in religious piety was only one feature of compelled religious exercise at the founding. Does that mean that compulsory baptism—without more—would not violate the clause? Really?

But the Fifth Circuit needn’t have gone back to first principles for this insight. The Supreme Court’s non-Lemon precedent captures it well. As recently as Kennedy v. Bremerton School District, in which the Court (finally?) abandoned Lemon, it simultaneously cited cases holding that prayer that is attributable to a public school violates the Establishment Clause because it pressures students into conforming. Furthermore, Kennedy carefully avoided addressing the constitutionality of the prayers offered by the football coach before the school district had disavowed them, tacitly suggesting that some members of the majority, at least, were (rightly) worried about their coerciveness. In short, all of the Court’s prayer and bible reading-in-school cases are good law, and for good reason: they protect against the government’s use of force to impose religious conformity.

But unlike a prayer, one might say, the Ten Commandments are just a passive symbol, one that features in many government buildings, including the frieze of the U.S. Supreme Court. That isn’t quite right. The image on the walls of Texas schoolrooms is not a portrayal of two tablets held by a berobed, hirsute fellow dodging lightning bolts. It is just a list of ten rules, the first five of which are blatantly religious. It isn’t a symbol, it’s a text. This is the feature of the law the Fifth Circuit somehow overlooked: the rules on a wall of a public school classroom are no less the commands of the state than the words out of a teacher’s mouth. The Ten Commandments are commands to religious piety, delivered to an audience made captive by threat of punishment.

This makes it easy to understand why the law also violates the Free Exercise Clause. Just last year, the Supreme Court held in Mahmoud v. Taylor that a public school could not oblige students to hear a teacher read pro-LGBT books contrary to their parents’ religious beliefs. A burden on a parent’s right to control the religious education of children, the Court held, is always subject to strict scrutiny. It is difficult to see how the state’s posting of the Ten Commandments in every classroom would not burden an objecting parent’s religious exercise. Unlike Mahmoud, kids can’t opt out because the poster will follow them into every room in the school. Would the Fifth Circuit really conclude that the Free Exercise Clause forbids the readings in Mahmoud but would permit City of Austin to require all public school classrooms to display a 16 x 20” poster of a same-sex couple exchanging vows? Or a large poster declaring in simple, straightforward prose the wholesomeness of gender fluidity?

The Fifth Circuit faced a test of constitutional judgment. After decades of turmoil, religious liberty doctrine is starting to settle into steady grooves, but cases like Kennedy have left some questions unanswered. Lemon no longer supplies the answer, but that does not mean that all the cases that relied on or anticipated Lemon were wrongly decided. The Fifth Circuit was right to turn to history, but wrong to so badly misread what the Texas law is all about: religious conformity. The decision is a step in the opposite direction of the original understanding of equal religious liberty toward which the Supreme Court has, however fitfully and controversially, been headed for the past generation.

Here, I would like to remark on one specific feature of the commentary—namely, the idea that the justices didn’t devote enough of their decisional resources to this case.

Different NYT articles maintain that the leaked documents reflected “nothing like the court’s usual painstaking work” and that they contain a “blizzard of memos” spanning five days and authored by six justices. These descriptions are in tension with one another, and they also fail to acknowledge that important judicial decisions are frequently made under a wide range of procedures and circumstances.

Start with the memos themselves. Even some Supreme Court opinions on the plenary merits docket are shorter than the total of the published memos, see eg here, and such opinions often issue without the internal circulation of significant legal correspondence.

In addition, the memos hardly represent the sum of the justices’ deliberations. We do not even know that we have all the memos. And surely there were additional conversations, internal chambers memos, and so forth. There was also substantial, high-quality briefing before the justices, as the Chief Justice noted.

The deliberations must also be considered in light of the conspicuous fact that the Court declined to issue a precedential opinion. Much of the effort that goes into judging involves the crafting of precedent, especially at the Supreme Court. That work does not arise when there is no published opinion.

By declining to issue an explanatory opinion, the justices reduced the importance and even the meaning of what they had done. They left themselves more room for changing course or doubling back. And they made it harder for litigants or lower courts to invoke the Court’s ruling.

The Court’s lack of explanation, in other words, is self-empowering in some ways but self-disempowering in other ways. Here is another example of that duality: by withholding reasons, the justices made it harder to pick apart their rationale; but they also ceded to critics the ability to characterize a salient ruling.

A serious effort at criticizing the Court’s decision would consider unexplained interim decisions that cut in favor of different policy preferences. Did injunctions against the second Trump administration always exhibit a superior deliberative process? Stays in capital cases? Orders to block deportations? Consider for example that the justices acted in an even more rapid fashion last year in A.A.R.P v. Trump.

To push that comparison a bit further, critical commentators ought to grapple with perhaps the central point that motivated the Court’s action. As the memos relate, Obama administration officials at least arguably stated that, in both this case and a prior case, the executive branch was moving too fast for the justices to stop them. Today, in the era of Trump 2.0, how many people would seriously deny that that consideration is powerful?

* * *

There are at least two theories under which Liptak may have violated the ethics rules.

First, Liptak may have violated Rule 8.4(f) of Professional Conduct, which provides that a “lawyer or law firm shall not * * * knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.” If a Supreme Court employee provided memoranda to the Times in the hope of making them public, and if Liptak assisted in that effort—both questions of fact, which would have to be answered through a careful inquiry—he may have violated this provision. Section 320, Canon 3.D.3, of the Judicial Conference’s Code of Conduct for Judicial Employees provides that a current or former judicial employee “should never disclose any confidential information received in the course of official duties except as required in the performance of such duties.” That Code doesn’t apply to “employees of the United States Supreme Court,” id. § 310.10(a), but it’s widely known that the Court has adopted similar rules that do.

Or, if the memoranda had been provided to the Times by one of the Justices themselves, Liptak’s assistance with that effort might have violated Rule 8.4(f), which extends to rules violations by “a judge.” Canon 2.A of the Code of Conduct for Justices of the Supreme Court of the United States provides that “[a] Justice should respect and comply with the law and act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” And Canon 4.D.4, though placed in a section devoted to financial activities, states generally that “[a] Justice should not disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the Justice’s official duties”—which disclosing internal memoranda to the Times would plainly be.

Or, if Liptak didn’t play any role in obtaining the memos directly, he might still have assisted the leaker’s violation by taking part in the process of making them public—aiding and abetting that effort, and violating the Rules “through the acts of another” per Rule 8.4(a). Commenting on now-public memos, the way that Adler, Blackman, Baude, and Goldsmith have, is very different from playing a role in making them public—akin to the difference between an attorney’s advising a defendant who has already committed a crime and an attorney advising a client on how to commit a crime without detection. An attorney who coauthored Closed Chambers with the infamous ex-Supreme-Court-clerk Edward Lazarus could hardly claim that the nonpublic information printed in the book was all Lazarus’s fault, and that all he did was help write it. According to Jodi Kantor, the article’s coauthor, she and Liptak “spent many weeks anticipating your reactions to these memos, which allow us to hear what the justices sound like in private”—suggesting active participation in the publication process on Liptak’s part. In any case, this is something a disciplinary investigation could clear up.

(Note: Last night I sent a draft version of this post to Liptak for his comments or corrections, asking for any “facts about your role that would cast the analysis below in a different light.” Today I received the following statement from a Times spokesperson: “The New York Times’s reporting on the Supreme Court, including the recent article by Jodi Kantor and Adam Liptak on the court’s ‘shadow docket’ rulings on presidential power, brings to light vital information for the public to understand how the court carries out its duties in governing the lives of millions of Americans. We are confident that Adam Liptak acted consistently with his professional obligations both as a lawyer and a journalist.”)

Second, regardless of how the Times obtained the memos, Liptak may also have violated Rule 8.4(d), which forbids a lawyer to “engage in conduct that is prejudicial to the administration of justice.” Courts may act in public—releasing their judgments and opinions as a matter of routine—but judges have to think in private. And multimember courts can’t deliberate effectively, much less administer justice effectively, if their judges can’t write anything down for fear of seeing it in the next day’s Times. As a 2022 discussion in the New York State Bar Journal suggested, releasing nonpublic information—in that case, a draft opinion—”is prejudicial to the administration of justice, as it compromises and disrupts the deliberative process, the most essential function of the court. The sanctity of the deliberative process is the cornerstone of the judicial system and such a violation can lead to a host of problems.” If the administration of justice is prejudiced by an attorney’s refusing to cooperate in individual discipline proceedings (as per Rule 8.4 cmt. 3), how much more so would it be prejudiced by the public release of judges’ nonpublic deliberations?

* * *

Nothing about this analysis is changed by Liptak’s role at the Times.

Claims about there being a public interest in the memos, for example, don’t make their publication any less prejudicial to the administration of justice. Judges don’t run for reelection, and they’re supposed to operate without outside political pressure, so the argument that “the public needs to know” is at its minimum. If the public interest really requires disclosure of internal memoranda from the Supreme Court (or, for that matter, internal memoranda from the New York Supreme Court, Appellate Division, First Judicial Department), then those courts can revise their rules, officially releasing their internal memoranda for public review. But if those courts choose instead to keep some of their confidential deliberations confidential—as indeed they have, and as the proper functioning of a court usually requires—then no individual employee or officer of the court, whether the leaker or Liptak, can claim the power to overrule that decision on his or her own. The public interest isn’t advanced by releasing only those memoranda that individual leakers choose to release for their own purposes.

Nor does it matter that Liptak is a journalist as well as an attorney. For example, if a Times journalist were also a licensed New York social worker, he might be required to act as a mandatory reporter and to inform the Office of Children and Family Services of suspected child abuse discovered in his professional capacity—even if he might prefer to keep that information confidential and to develop a source for news articles about the abuse instead. The additional role carries with it additional duties (even conflicting duties), whether they involve communicating information or keeping it confidential.

Nor does Liptak necessarily have any First Amendment right to violate the Rules of Professional Conduct. If, for example, the nonpublic material described in the article had arrived at the Times unsolicited, it’s possible that the First Amendment (as construed in Bartnicki v. Vopper) would restrict state interference with its publication. But attorneys are often under confidentiality obligations that the First Amendment doesn’t impose on others. (A lawyer who receives unsolicited material accidentally produced by the other side sometimes has to give it back.) And were an investigation to show that Liptak solicited or took part in soliciting a violation of court-imposed confidentiality rules, that solicitation wouldn’t be protected by the First Amendment, any more than any other speech that serves as an “integral part of conduct in violation of a valid” legal-ethics rule. Either way, a First Amendment defense on Liptak’s part requires a fact-intensive inquiry, which the First Department’s Attorney Grievance Committee could conduct.

More importantly, the First Amendment isn’t reserved for professional journalists—applying equally to the “lone pamphleteer[] or street corner orator[] in the Tom Paine mold” or to “someone who spends substantial amounts of money in order to communicate [his] political ideas through sophisticated means.” If an attorney were to hand out sealed filings on the street corner, if a current law clerk were to publish draft opinions on Instagram, or if I were to post smuggled memoranda on this blog or on my personal X account, each of us would be no less entitled to First Amendment protection—and no less subject to professional discipline—than those attorneys fortunate enough to have jobs at the New York Times. Either the professional conduct rules restrict the violation of court-imposed confidentiality requirements or they don’t.

* * *

Enforcing state rules of professional conduct against attorney-journalists won’t end leaks like this. Maybe some attorneys in Liptak’s position would rather just be journalists, giving up their licenses to practice law; and maybe other journalists who aren’t attorneys (perhaps including Kantor) will end up being the ones to publish such leaks instead. Courts don’t have the same tools to regulate the conduct of those who don’t claim a right to practice before them. But publications like the Times use licensed attorneys as journalists for a reason, namely to have the benefit of their practical expertise. You don’t have to be a lawyer to work for the Times; but those who want to keep the right to practice law—and to keep the status of an officer of the court—have to shoulder its responsibilities too.

Regardless of what one thinks of the “emergency docket” or the Clean Power Plan, leaking confidential court materials poses a real danger to the integrity of the justice system. That’s why licensed attorneys usually fear to touch such leaks with a ten-foot pole. The leak of a draft opinion in Dobbs, for example, led directly to an assassination attempt on Justice Brett Kavanaugh, aimed at preventing that draft opinion from obtaining his vote for the necessary majority. It’s only a longstanding culture of respect, fidelity, and trust among attorneys and court personnel that prevents these leaks from becoming a daily occurrence—and that allows courts to deliberate effectively on the law. It can only undermine that culture further for the disciplinary system to overlook a decision by a licensed attorney and officer of the court to make these leaks more effective weapons against any judge with whom the leaker disagrees.

For all I know, Liptak is otherwise an upstanding guy, and he’s well thought of by people I trust. But we don’t want a world where every internal judicial memo serves as a potential weapon in a political fight, one available to whoever’s willing to violate the ethics rules first. And one way to help forestall that world is for the discipline system to treat with seriousness the lawyers and judicial employees whose actions would otherwise speed its arrival.

(Cross-posted at The Volokh Conspiracy.)

Why Courts Should Not Discipline Trump’s Lawyers, by Rebecca Roiphe. The other side of the coin, in some ways: “This Article draws on [John] Eastman's case to argue that disciplinary charges in politically charged cases are often unconstitutional and even when they are not, they are unwise and counterproductive because they chill useful advocacy and threaten democratic values.” I have conflicted feelings about this, but “unwise and counterproductive” might well be right! See also Some Thoughts on John Eastman’s Disbarment by Brad Wendel.

The Presidential Records Act is Constitutional, by Chris Fonzone, a critique of the shocking recent OLC memo on the unconstitutionality of the Act. I find the memo’s Necessary and Proper arguments ambitious and tricky, but Fonzone’s point about the need to discuss the Property Clause seems very important — the counter argument would be that the papers are not in fact government property, but the question is whether that is right and how the Property Clause affects Congress’s ability to answer it.

The Ex Parte Young Cause of Action: A Riddle, Wrapped in a Mystery, Inside an Enigma, by Judge Andrew Oldham, Adam Steene, and John Tienken. “The Ex parte Young cause of action would not have been recognized at the Founding and was instead the product of a gradually developing equitable common law. What’s more, the Article argues, Young fits uncomfortably with modern federal courts jurisprudence, which tends to view non-statutory causes of action (like the one announced by the Young Court) with considerable skepticism.” An important piece of Ex Parte Young criticism, especially for anybody who has read their Bray and their Harrison.

The Military Officer’s Oath to Disobey Lawful But Unethical Orders, by Joshua Braver. For several years I have been wondering, what are the explicit or implicit theories of constitutional authority held by our soldiers? If you ultimately believe, per John Harrison, that constitutional power comes from the barrel of a gun, this could be (or become) a foundational question of our constitutional law. Enter Braver, with “a six-month ethnography at a military college, interviews with writers of Army doctrine, a first-person account from an Army officer who defied an order regarding transgender service members, and an analysis of conflicts between Donald Trump and the Chairman of the Joint Chiefs of Staff.” I still need to ponder the results of this analysis, but I am so glad to read a study of this. Great research project.

First, it’s true that the Clean Power Plan stay was something of a big deal at the time, and that with the benefit of hindsight it can be seen as something of an inflection point for the shadow docket. This is partly for boring technical reasons (the difference between staying an executive action directly versus staying a lower court decision), partly because the Clean Power Plan was a consequential policy, and partly because as things turned out, the Court did not end up ruling directly on the merits of the Obama Administration plan, so the stay ended up being the last word. But we basically knew all of this at the time. Here’s Lisa Heinzerling in 2016, The Supreme Court’s Clean-Power Power Grab.

Second, the Court’s reasoning — while perfectly debatable — is basically what the parties and others had argued at the time. The Court thought the administration’s legal interpretation was implausible, especially in light of the novelty and magnitude of the executive action at issue. It was also troubled by the fact that its earlier ruling in Michigan v. EPA had proved to be largely ineffective because the Court had waited too long to rule. Again, my memory is this is what careful observers believed was happening at the time.

It is somewhat interesting to have it confirmed and see exactly what the Justices said, and again there is plenty of room to argue that the major questions doctrine is wrong, that the Court should have been more passive, etc. (I don’t necessarily disagree.) But it doesn’t seem to me that we’ve acquired much new information, and nothing new that is especially troubling.

Third, some people seem to be scandalized somehow by Chief Justice Roberts’s role in this. But he is the circuit justice for the D.C. Circuit, so he would normally be the first person to circulate his views about the application and propose a resolution. And we have already known for over a decade that the Chief Justice supported granting the application. The fact that he wrote a memo saying so, for the somewhat obvious reasons, isn’t that much of a revelation.

Relatedly, while everybody likes to describe Chief Justice Roberts as a committed “institutionalist,” I think people regularly overread their own label, or at least misunderstand what it means. Institutionalism does not necessarily mean foregoing one’s own view of the law, and it certainly does not mean adopting the readers’ and the critics’ views instead of one’s own. And in any event, surely acting on the concern that the executive branch is openly circumventing the federal courts should count as institutionalist.

Fourth, it is worth remembering that this all happened ten years ago, and that the authors of the memos did not have the benefit of our hindsight. When the Clean Power Plan memos were written, Antonin Scalia was alive, Barack Obama was President, and the last two years of the Obama administration seemed as if they had marked an unprecedented rise in unilateral executive lawmaking which the Court was responding to. We now know that First Trump Administration, Biden Administration, and Second Trump Administration would each make the late Obama years look placid in comparison. We now know that the federal courts would get sucked (or willingly jump) into a cycle of litigation against the executive branch, for better or worse. But it is unclear whether all of this was foreseen or foreseeable in February 2016.

Fifth, the biggest scandal here is in fact the leaks themselves. Supreme Court leaks like these — including copies of confidential work product — are becoming more common. In my view, this is a bad thing. It will damage the institutional culture of the Court and do little good. But Jodi Kantor is a super-powered investigative reporter, determined to break through some of the Court’s norms of confidentiality, and I would bet on her succeeding. If so, we will have to become skilled at figuring out what these documents really tell us, and what they do not.

The Fugitive Slave Act of 1850: A Public-Rights Paradox, by Scott Jones. Another interesting student note. (But I should clarify that I think there were quite plausible arguments that the Fugitive Slave Act of 1850 violated Article III, as I noted in Adjudication Outside Article III p. 1555).

Epistemic Discovery, Psychedelic Drugs, and the First Amendment, by Jeremy Kessler and David Pozen. Is this a doctrinal exploration of the constitutional right to freedom of thought, or a paper about the constitutional right to take psychedelics? Very interesting.

What Really Happens on the Emergency Docket, by Taraleigh Davis. A deep dive into the emergency/interim docket proceedings in Wisconsin v. Moeck in 2005. Very much worth reading as a 20-year-old case study, but I don’t think we can be confident in the post’s claim that “there is no reason to believe this process has changed significantly” since then. I just don’t think we know that much about the modern internal process.

We recap and reflect on the oral arguments in Trump v. Barbara (the birthright citizenship case) and then analyze the Court's recent decision in Chiles v. Salazar, about the First Amendment limits on Colorado's conversion therapy ban. We also confront the taboo question: Are judicial opinions too long?

The Law of Certiorari, another(!) one from Tyler Lindley: “When Congress initially granted the Court discretionary certiorari power, it did so against the backdrop of common-law constraints on judges’ discretion to issue or deny the writ. Indeed, the legislative history explicitly acknowledges these common-law rules, suggesting that Congress was aware of and intended to impose meaningful limits on the Court’s certiorari discretion.”

“Subject to the Jurisdiction” as Legal Text, by Keith Whittington and James Heilpern. “Drawing on mid-nineteenth-century legal and legislative sources, the Article demonstrates that "subject to the jurisdiction" was a conventional legal term of art signifying that an individual was within the governing authority and protection of the sovereign. The Article concludes that the original meaning of the Fourteenth Amendment reinforces a broad, territorial rule of birthright citizenship that is independent of parental allegiance or immigration status.”

Will: Gentlemen, thanks for sitting down with me today to talk about your work! Before we get into points of agreement and disagreement, can I start by asking each of you to summarize the core contribution of your article in a sentence or two?

Jonathan: Thanks for having us Will, and sure. My paper is about the role that custom played in delimiting the scope of fundamental rights at common law in the eighteenth-century English courts. One of my central claims – perhaps most relevant for our discussion today – is that where a statute codified a fundamental, preexisting right in writing, that statute didn’t change the right’s character, which meant that if the right’s outer limits were defined by some body of custom or practice before the statute’s passage, then they were after too. If that’s right, and if parts of our Constitution were declaratory of preexisting customary rights, then presumably for an originalist post-enactment practice would be relevant for locating the limits of those rights today. At the same time, how interpreters were supposed to read the customary law – what “tradition” was, where it was to be found, and so on – became contested across the late-eighteenth century, and so my piece gets into some of those interpretive and jurisprudential puzzles too.

Christian: Thanks to Will for organizing this, and to Ryan and Jonathan for joining. My article asks how common-law courts traditionally handled erroneous statutory precedents. (In other words, when courts or other actors interpreted a statute incorrectly, what should later courts do about that?) I argue that Founding-era courts in England and the United States were sharply divided on that score. Some judges adhered to a maxim, communis error facit ius (“common error makes law”), that effectively allowed a course of precedent to amend a statute. But other courts adopted a more textualist position, insisting that precedents could clarify but never alter a statute’s original meaning. My article is primarily a work of legal history, but it also offers some suggestions for how this history might influence how we think about statutory stare decisis today.

Ryan: Thanks Will, it’s great to be here with Christian, Jonathan, and you. My article examines how Founding-era courts used historical practice—that is, the actions that people take to implement or comply with a law after its adoption. The basic claim is that courts used historical practice as a tool for discovering the law’s original meaning, rather than a tool for updating the law over time.

Will: Thanks! I see a lot of overlap and common ground between these articles – that historical practice and the common law were an important part of legal interpretation at and before the Founding. But I also notice some differences in emphasis and maybe disagreements about exactly what to make of the history. Ryan, broadly speaking I see you as the most skeptical about giving a role to historical practice that might be inconsistent with what we would otherwise read the text to do; and Christian, I see you as perhaps finding the most potential room for practice; Jonathan, I see you as sort of in between. Do I have that right?

Christian: That sounds right to me. I certainly find much more evidence than Ryan that some eighteenth- and nineteenth-century lawyers thought that practice could sometimes trump text. I’m probably closer to Jonathan’s view, although we emphasize different fault lines within the common-law tradition.

Ryan: I agree that Will’s description is broadly right. But part of that difference comes from the fact that Christian and I are asking somewhat different questions. As I understand his article, he’s primarily focused on the ability of judicial precedent to trump the text, while I’m looking mostly at the practices of the political branches.

Christian: I think one of the deeper disagreements among the three of us concerns the precise relationship between “practice” and “precedent.” As I read the sources, “precedent” in the eighteenth century incorporated both on-the-ground practice and prior judicial decisions. It was only later that those two categories really diverged as a matter of legal theory.

Jonathan: I don’t know that my position is all that different from Christian’s. Judicial precedents about the sort of “declaratory” statutes I’m focused on – ones that simply restated preexisting rules of common law – don’t really present the kind of communis error dynamic he’s interested in. A statute that cross references and codifies a customary right can’t really be contradicted by a later body of practice defining or delimiting the right’s scope. But outside the declaratory context, my strong sense is that both pre- and post-enactment custom mattered for construing lots of “remedial” statutes as well.

Will: Thanks. I want to ask more about how these questions play out for modern debates on the Court in a minute, but first I would like to ask you all about a couple of English cases.

On the one hand, there’s Sheppard v. Gosnold (1672), which involved the collection of customs duties. Chief Justice Vaughan argued that the practice of customs officers seizing goods under pretextual claims of authority couldn’t count as meaningful “usage” because merchants acquiesced out of economic coercion, not genuine agreement. Meanwhile, R. v. Bewdley (1712) concerned whether a statute requiring jury venires to be drawn from particular localities applied to Crown cases; the court declined to enforce the statute’s apparently broad terms because the “constant practice, ever since the making of the act” had been to draw juries locally in Crown cases anyway. It seems like one of these cuts in favor of the relevance of practice, and one against. How should we reconcile them and what should we make of them?

Jonathan: Since I think Christian and I are going to agree here, Ryan do you want to go first?

Ryan: Sure! Sheppard v. Gosnold was a foundational case when it came to the role that historical practice played in interpretation. The case actually explained the value of pre-enactment practice when interpreting a statute, but courts quickly applied its logic to post-enactment practice. Chief Justice Vaughan’s basic point was that, when language is unclear, the way that people acted before the statute was passed could be good evidence of what the text meant. In particular, the Crown argued that it had a longstanding practice of collecting customs duties on shipwrecked goods that had washed up on shore, and that the court should interpret the statute in light of that practice. But the court rejected the alleged practice on several grounds, including that it conflicted with the statute’s ordinary meaning and that it probably didn’t reflect a good-faith attempt to interpret the law correctly. For more than 150 years after Sheppard was decided, English and American courts cited it for the proposition that post-enactment practice was valuable evidence of the statute’s original meaning.

R. v. Bewdley stands for the proposition that, in certain circumstances, a course of judicial practice can overcome the text of a statute. The court basically treats its own practice as if it established a judicial precedent that the court was bound to follow. Bewdley is clearly the strongest case against my position, although there are some problems with it. First, it was controversial: an editor of Blackstone’s Commentaries called it “notorious,” another treatise said its “singular doctrine is clearly not tenable,” and later courts felt the need to shore up its reasoning. Second, Bewdley is an outlier: After 1600 or so, it’s the only case I’ve seen that actually holds that practice can overcome the statutory text.

Jonathan: I agree with you, Ryan, that Sheppard gets cited frequently across the eighteenth century for the proposition that statutes, especially old ones, should be read in light of how they’d “constantly been receive’d to be by common acceptation.” And it’s also right, and a little weird, that in Sheppard itself, Vaughan chose to disregard the body of official practice that the government’s lawyers pointed to, and to enforce what he called the statute’s “obvious meaning” instead. But to my mind, the reason Vaughan chose to disregard practice in that case actually illustrates why, under different circumstances, it might’ve mattered quite a bit. The first half of Vaughan’s opinion in Sheppard is an attempt to show that the tax statute at issue was a remedial one – it wasn’t just declaratory of some inherent, preexisting authority that the Crown had to tax imports – and that, further, it was in derogation of the common law: if this statute had never been passed, importers wouldn’t have to part with any of the value of their imports. For that kind of a statute, ordinary rules of interpretation counselled a strict construction, unless (1) there was persuasive evidence of a settled course of official practice that presupposed a broader interpretation, and (2) there was reason to think the English people had affirmatively assented to that course of official practice. In Shepard, custom didn’t trump the presumption in favor of a strict reading of the text; but that’s not to say it never could. In fact, Vaughan himself says the opposite!

Christian, do you want to take a stab at Bewdley?

Christian: Gladly! First, I’ll note briefly that I generally agree with Jonathan about Sheppard. That case is about when, not whether, usage can trump text. There, the usage in question—the collection of customs duties without statutory authority—was liable to abuse. If an official exacted a duty illegally, the victim would usually find it cheaper to pay and move on, rather than contest the illegal duty in court. Chief Justice Vaughn wanted to make sure that this kind of repeated abuse, which didn’t really reflect the custom or consent of the English people, didn’t acquire the force of law, particularly against an act of Parliament.

As for Bewdley: Ryan, Jonathan, and I agree that the case allowed a course of practice to overcome the plain text of an act of Parliament. (Indeed, all 12 of England’s senior judges—basically, the English judiciary sitting en banc—agreed about that.) The only question is whether Bewdley was an outlier. I don’t think it was. Lawyers cited it in arguments, and judges cited it in opinions. Here’s one representative post-Bewdley statement: “a series of precedents against the plain words of an act of Parliament have made a law.” That was by Lord Hardwicke, arguably the most important judge of his generation, in 1737. To be sure, Bewdley later became controversial, as Ryan rightly notes. But that’s a later view, which became prominent only after the 1760s.

That gets to another possible fissure between Ryan, on one hand, and Jonathan and me, on the other. I understand Ryan’s project to be reconstructing a single Founding-era view of practice. Jonathan and I, in contrast, focus much more on disagreements among courts and lawyers, and on change over time. So I think that Ryan’s account, which is skeptical that practice can overcome text, absolutely captures one view of things. But I don’t think it’s the whole picture.

Jonathan: I’d second all that. In a legal culture in which most law was unwritten, and in which statutes were conceptualized as discrete interventions into a preexisting body of customary law, the idea that practice could bend statutory language beyond what it would have originally meant wouldn’t have seemed all that strange. One thing that changes across the eighteenth century is the gradual arrival of a more positivistic understanding of legislation. That gives rise to the kind of skepticism about reading statutes in light of subsequent practice that Ryan’s observing, and to the deeper jurisprudential fissures within common law interpretive theory that Christian and I are trying to illustrate.

Ryan: Regarding Sheppard, Chief Justice Vaughan says that practice can’t trump the statute’s ordinary meaning: “if usage hath been against the obvious meaning of an Act of Parliament, by the vulgar and common acceptation of the words, then it is rather an oppression of those concern’d.” On the contrary, he says that practice is valuable evidence of ordinary meaning: “Where the penning of a statute is dubious, long usage is a just medium to expound it by; for jus & norma loquendi is govern’d by usage.” (In my paper, I go into much more detail about what this phrase means than we have time for here.) Sheppard simply can’t stand for the proposition that post-enactment practice can overcome the text, because the case didn’t involve post-enactment practice at all. Moreover, English courts and treatises routinely describe Sheppard as I do: to my knowledge, no one ever understood Sheppard in the way that Christian and Jonathan have described here.

As for Bewdley, it’s true that a few courts cited it in dicta. But I’ve never seen another case that holds that practice can trump the text. And people started questioning Bewdley long before the 1760s: For example, in R. v. Harman (1739) and Att’y Gen v. Allgood (1743), English judges tried to explain Bewdley, not as allowing practice to trump the text, but instead as an application of the interpretive principle that statutes didn’t bind the Crown unless they did so expressly. That shows that, pretty quickly, people found Bewdley’s logic troubling and tried to shore it up.

Lastly, I actually agree that there were multiple perspectives on the relationship between practice and statutory text. From the Middle Ages through the sixteenth century, it’s absolutely true that English courts were willing to allow practice to trump text. The main difference between me and Christian is when we think courts started to reject that view. I think they started to do so much earlier and had rejected it almost entirely by the time of the Founding.

Will: Thank you all!

Now if I can beg your patience with one more historical case, this time under the American Constitution, what should we make of Stuart v. Laird (1803)? As you all know, this case was decided six days after Marbury v. Madison and upheld the practice of circuit riding, which dated back to the Judiciary Act of 1789 — based on practice. Or as the Court put it, “a contemporary interpretation of the most forcible nature,” a “practical exposition . . . too strong and obstinate to be shaken or controlled.” This is the strongest example I know of where the Supreme Court seemed to credit practice without even examining the meaning of the text. But there’s a lot about the case that is weird, including the overwhelming political dynamic and the absence of John Marshall. What should I make of it?

Christian: It’s not obvious what Stuart should mean. On the one hand, it’s been described as an outlier and an act of judicial “self-preservation”, where the Justices were desperate to uphold circuit-riding in order to avoid provoking a crisis. On the other hand, as you note, the Court seemed to decide the case based on practice alone, regardless of what the Constitution’s text might have said. That looks a lot like communis error. At least, that was how some early commentators understood it: “it is too late to disturb the decision, even if it was originally incorrect,” in the words of one antebellum lawyer. For me, that’s enough to suggest that we need to take seriously the possibility that some lawyers in the early Republic thought that a course of practice might sometimes trump the Constitution’s original meaning. But I don’t think we can yet say how widely that view was shared.

Ryan: I think it’s dangerous to put too much weight on Stuart. The Republican Party had basically declared war on the justices and threatened to impeach them if they decided the case incorrectly. The brief and cryptic opinion suggests that they were trying to find an off ramp that got them out of the case as quickly as possible. That’s the best explanation for why they spent only five brief sentences on the issue.

That said, it’s not even obvious what the Court was saying precisely. At the Founding, courts and treatises repeatedly said that a practice that started shortly after a law was adopted and continued for a long period of time after that was good evidence of the law’s original meaning. There are lines in Stuart that seem to be drawing on that reasoning: For example, the Court refers to the longstanding practice of circuit riding as “a contemporary interpretation of the most forcible nature.” And the Court never said that the practice contradicted the Constitution’s text, like the King’s Bench did in Bewdley. So the opinion in Stuart is consistent with the idea that practice is evidence of original meaning, although that’s certainly not the only way to interpret it.

Jonathan: I agree, Stuart is tricky. One way of domesticating that case is to read it as an early example of constitutional liquidation. I can’t recall whether you discuss Stuart in your article on that subject, Will, but it’s plausible to read the Court as saying, effectively, “The Constitution’s text is just underdetermined on this question, and we’ve got a settled course of judicial practice that doesn’t contradict anything in the text. So let’s go with that.” Looking to practice (judicial, executive, or popular) to give specification to semantically underdetermined statutes wasn’t at all controversial in the eighteenth century, as Christian’s article nicely illustrates. But it’s also plausible to read Stuart as an example of the communis error move: that is, as a case where the Court is using practice to trump the constitutional text – text that’s not declaratory. If that’s what’s going on, Stuart has implications for contemporary originalists that are far more radical than have been registered to date.

Will: Now thinking about where things stand today, the Court is having its own version of these disputes, including the recent separate opinions on precedent, history, and tradition by Justices Kavanaugh, Gorsuch, and Barrett in United States v. Rahimi. Which of those Justices (or another Justice?) gets this issue closest to right?

Jonathan: To my mind, there are really two questions here. First, why should an originalist judge today be looking to “tradition” to figure out how broad or narrow the Second Amendment is? How might the constitutional understandings of political actors in the decades after 1791 possibly illuminate what the text originally meant in 1791? In my view, Justice Barrett has been the most effective in flagging this basic question, and I think it’s a very serious objection to the kind of traditionalism that the Court adopted in Bruen. I think there are good originalist answers, but Barrett’s asking the right question here.

Then there’s the question of method: even if an originalist has good reasons to care about “tradition” in theory, we still need to know how to “read” a body of post-enactment practice. And this is where debates about levels of generality, about evidentiary sources, come into play. My own view is that by the latter-eighteenth century, English judges were pretty unsure about a lot of these same questions. (In fact, it’s not clear how a legal community could reach consensus, in the abstract, about the level of generality at which a legal tradition should be interrogated.) So it’s unsurprising that the Justices today are wrestling with them too, and I’m not sure that mining the eighteenth-century sources for answers is going to help all that much.

Christian: I don’t think my paper resolves the methodological disputes in Rahimi. But here’s one thought: Justice Gorsuch insists that courts must look to specific historical analogues, rather than extrapolating from abstract “values” or “purposes,” when cabining the scope of broad textual guarantees like the Confrontation Clause of the Sixth Amendment. That reminds me a lot of the Founding-era debate Jonathan notes between Lord Mansfield, who generally saw the common law as a body of “principles” that transcended individual cases, and Lord Camden and William Blackstone, who both hewed more closely to specific precedents. In other words, Justice Gorsuch seems to favor one side of a divided common-law tradition. That’s a methodological choice that future work should examine (and which a coauthor and I have started to explore elsewhere). Justice Kavanaugh gestures in that direction, too, when he cautions against unthinking reliance on pre-ratification English law.

More generally, I agree with Jonathan that the separate opinions in Rahimi suggest that originalists and tradition-minded lawyers need to develop tools for making principled choices about whose tradition matters, or which part of the tradition deserves continuing force. I might be more optimistic than Jonathan about the possibility of doing so. But I agree that it’s a crucial project.

Ryan: In my view, historical practice can be a valuable tool for discovering the original meaning of the Constitution, as long as it’s the right kind of practice. For example, at the Founding, courts would rely only on practices that started shortly after a law’s enactment and that continued for a long time after that; they wouldn’t rely on practices that started a long time later. In recent years, however, the Court has increasingly relied on such late-arising practices.

Justice Barrett has been the main exception to that. She has consistently looked for the original meaning of the Constitution and recognized that post-enactment practices that started shortly after the Constitution’s ratification can be valuable evidence of that meaning. But she has consistently questioned the relevance of late-arising practices on the ground that they don’t tell us much, if anything, about how people would have understood the text when it was adopted. I think that’s the correct approach.

Will: I think this is a great place to wrap up. Thank you all for taking the time to engage

!

To wit, the CASA dissenters suggested that universal relief was necessary both to prevent the executive from breaking the law and to generate a case on the merits for the Court to review. In fact, however, the EO has effectively been enjoined nationwide during its entire existence, and Trump v. Barbara is now before the justices.

These events afford an opportunity to consider the “dissenter’s dilemma,” that is, a dissenting judge’s desire both to “fuel outrage over a decision’s potential reach and to minimize the same decision’s actual consequences.” Did the CASA dissenters resolve that dilemma well?

First, the CASA dissenters repeatedly suggested that relief would be practically unavailable, at least for many affected individuals, if universal relief were disallowed. The dissenters asserted, for example, that the “Court’s decision is nothing less than an open invitation for the Government to bypass the Constitution.” And they continued: “The Executive Branch can now enforce policies that flout settled law and violate countless individuals’ constitutional rights, and the federal courts will be hamstrung to stop its actions fully.”

One practical response to this argument was that class action relief would be available. The dissenters seemed of two minds about this possibility, worrying about “cumbersome class-action litigation” while also noting that plaintiffs would be “well advised to file promptly class-action suits” and that “lower courts would be wise to act swiftly.” As it happened, the EO was swiftly enjoined and so has yet to go into effect. Moreover, that outcome was not only foreseeable but foreseen by at least some justices and commentators.

Notably, the CASA majority did quite a bit to facilitate the EO’s being continuously enjoined. Perhaps most importantly, the justices had made class action equity more readily available in A.A.R.P. v. Trump. And the Court implicitly viewed that case as a companion to CASA. Though the Court’s expedited relief to a “putative class” had already issued, the justices waited until after the CASA oral argument to publish opinions explaining what they had done in A.A.R.P. And the CASA oral argument was substantially concerned with how to understand A.A.R.P.

Second, the CASA dissenters, especially Justice Kagan at oral argument, worried that the merits of the birthright citizenship EO would never reach the Supreme Court. Plaintiffs would always win in the lower courts, the dissenters argued, and the Solicitor General “has no incentive to file a petition [for certiorari] either.” Thus, there was “a serious question … whether this Court will ever get the chance to rule on the constitutionality of a policy like the Citizenship Order.”

To some degree, this second worry was parasitic on the first one, for a lack of SCOTUS review might not be a problem if the relevant executive action were still expeditiously enjoined via class action. At any rate, the oral argument resulted in a promise from the SG that he would in fact seek certiorari on the merits, and that is of course what happened.

Now, it is standard practice for dissenters to engage in doomsaying. Sometimes they are right, but usually they are wrong. And even when they are right, the reason for that might be that the dissent itself was taken too seriously, yielding a self-fulfilling prophecy. Justice Scalia’s dissent in US v. Windsor, predicting same-sex marriage rights, is often viewed as an example of a self-fulfilling dissent, as lower courts went on to quote it. In CASA, Justice Kagan’s worrying about the merits never reaching SCOTUS might have helped secure the SG’s promise to seek cert. So doomsaying can have an effect, even when—or because—it is inaccurate.

In CASA, the dissenters raised concerns that were unusually immediate and specific. Perhaps they left enough wiggle room for plausible deniability. But to the extent that the dissenters made testable claims, those claims have not been borne out. The dissenters’ doomsaying, in other words, can be viewed as both falsifiable and falsified. One might remember this example when considering other assertions in dissenting opinions.

From the archives, In Memoriam Edward H. Levi, in the 2000 University of Chicago Law Review (on JSTOR). Scholar, Teacher, Dean, President, Attorney General — it’s hard to think of another person who had Levi’s three-way combination of intellectual ability, integrity, and political savvy.

On Scholarly Engagement, by Keith Whittington. A blog post by Keith Whittington explaining why he decided to engage on the merits with the meritless legal arguments in defense of the birthright citizenship executive order. As Keith says “There are an endless number of bad ideas in the world, and I do not have the time and energy to explain why all of them are bad,” but sometimes an idea gets enough objective traction that people need to explain what it is wrong with it. The contrary argument, made in a series of blog posts by Pranjal Drall & Samuel Moyn, seems to have learned exactly the wrong lesson from the road to NFIB v. Sebelius.

On Friday, the Merit Systems Protection Board held that statutory removal protections for immigration judges violated Article II on an as-applied basis. The merits issue is high-profile. But this post will examine why the MSPB’s threshold determination that it has power to decide the challenge is only half-right. The MSPB did have the power to reach the constitutional issue, despite the IJs’ objections. But the MSPB continues to unpersuasively limit its power to decide other constitutional challenges. As I discuss in a forthcoming article, federal agencies can—and should—address all constitutional challenges to statutory provisions.

The MSPB, like most agencies, has long limited its power to address constitutional challenges. The MSPB’s predecessor, the Civil Service Commission, did so in 1943 without explanation.[1] In 1955, the CSC called that limitation “too well recognized to require citations.”[2] The MSPB adhered to that position after its creation, although it has carved out exceptions for “as-applied” arguments regarding particular actions. As recently as March 2024, the MSPB declined to consider a challenge to the constitutionality of an administrative judge’s removal protections because it implicated the protections of all MSPB administrative judges.

The decision last week in Jackler v. Department of Justice weakly distinguishes the 2024 decision. The MSPB reasoned that DOJ “argues only that the specific nature of the [IJs’] positions and duties elevate them to a status where these protections cannot constitutionally be applied to them.” By contrast, the MSPB wrote, the 2024 challenger “argu[ed] that the statutory removal protections provided to Board administrative judges made its entire adjudication structure constitutionally deficient.” But in both cases, the challenge depended on statutory and regulatory provisions that apply to an entire category of officers.

Either way, there should be no need for these fine-grained distinctions. As this decision illustrates, agencies can interpret the Constitution. As it further illustrates, agencies can then decline to act within the full scope of what a statute would otherwise permit them to do. And the only practical difference between an “as-applied” and a “facial” holding seems to be that the MSPB and lower-level adjudicators will have to re-decide the issue in every case that comes before them.

That piecemeal approach defeats one of the fundamental purposes of having agency adjudication at all. Unlike courts, agencies are not limited by justiciability doctrines and other restraints on Article III courts. They instead have the ability to systematically address legal questions in their area of administrative responsibility. Doing so creates greater predictability for regulated parties and lower-level adjudicators, on constitutional issues no less than statutory ones.

Some might have concerns about allowing MSPB members to adjudicate the constitutionality of limitations on the president who appointed them. But as the course of this litigation is likely to confirm, judicial review will often be available. The MSPB’s decision is a final agency action subject to review in the Federal Circuit. If the Federal Circuit agrees with the MSPB, the IJs can petition the Supreme Court for certiorari. And Supreme Court review is meaningfully more likely when a statute has been held unconstitutional.

In fact, if the concern is preventing executive abuse, it seems preferable for agencies to address all constitutional challenges. Most cases raising constitutional challenges restrict executive power. For instance, individuals (including civil servants) often raise First Amendment, due process, Seventh Amendment, or other arguments. Moreover, the government will almost always have the resources and incentive to litigate these cases on an as-applied basis, but individual civil servants and other private parties may not.

Finally, in an administration that purports to follow the original meaning of the Constitution, the continued refusal to decide some challenges is puzzling. Many originalists recognize that the president generally has a power and duty to disregard unconstitutional statutes. If agencies also exercise executive power and take an oath to the Constitution, it seems to follow that they have the same power and duty. Indeed, some agencies took exactly that view in the late nineteenth and early twentieth centuries. It was only the Interstate Commerce Commission that appears to have established a contrary consensus in the early twentieth century. Originalists in agencies might take a future opportunity to return to first principles and decide all constitutional challenges to statutes, whether broad or narrow in scope.

[1] In the Matter of Herbert C. Bright, 2 P.A.R. 65, 66 (Civ. Serv. Comm’n 1943).

[2] In the Matter of Curtis C. Wilson, 5 P. & F. (2d) 247, 249 (Civ. Serv. Comm’n 1955).