PrawfsBlawg

The Pentagon’s proposal to livestream an execution by firing squad may have First Amendment implications. Courts have steadfastly rejected claims by the media that they have a constitutional right to broadcast executions. But they have done so in part with the argument that public executions were a relic of the past. (The 7th Circuit used this rationale just last year.) If they are not, then it’s not clear to me why the Government gets to choose which ones get televised and which ones don’t.

UPDATE: You could also imagine an 8th Amendment claim here that might delay the execution.

I’m reading through the transcripts of the Bayh Subcommittee’s hearings on Roe v. Wade. The legal and moral arguments on abortion are similar to today. What is different is the state of medical knowledge.

For example, one question that came up repeatedly was whether IUDs would be prohibited by an abortion ban that began at conception. The answer was “We don’t know,” because at that time doctors were unclear about whether IUDs prevented conception, implantation, or both. That made framing a ban with that definition of life very tricky.

Likewise, there was a discussion at one point about pregnant women using DES and how that might play into the debate. Mass torts scholars know, of course, that DES was later taken off the market due to horrible side effects that led to the “market share theory” of liability in Sindell.

Finally, some of the claims about pre-natal development then strike me as incorrect given what we know now. Not to mention advances in care for premature births and genetic testing.

Bluesky user William B. Fuckley offers this: “the last time a team pulled off a World Series threepeat the incumbent party lost the White House next presidential election….if you value democracy you must root for the dodgers.”

He is referring to the 1998-2000 Yankees, after which Republican W. succeeded Democrat Clinton. But this got me thinking: There have been four three-peats and here are the results of the next presidential election after the three-peat:

• 1972-’75 A’s: Democrat Carter succeeds Republican Ford in 1976, after getting rid of what was at the time the most corrupt criminal to occupy the Oval House.

• 1949-’51 Yankees (which continued through ’52 and ’53): Republican Ike succeeds Democrat Truman.

• 1936-’38 Yankees (continued through ’39):Democrat FDR retaining office in 1940. But he had to ignore the two-term tradition to do it. Maybe Republican Charles Lindbergh wins if he would have been able to run against someone other than FDR.

Someone responded to Fuckley’s post with the following gem: “Not unlike how it turns out the Curse of the Billy Goat was a load-bearing structure in the soul of America.”

I like this, especially if we describe Trump as destroying the post-World War II settlement and order. The Curse began in 1945, when William Sianis, owner of Chicago’s Billy Goat Tavern,¹ was denied entry to a game (in a Series the Cubs lost, meaning the problem in 2016 was the Cubs merely reaching the Series, not even winning it). That was a few months after the war ended and as the Allies were beginning to imagine, design, and implement what became that order. So breaking the Curse broke the world that rose from the rubble of World War II, returning us to some version of what came before.

1. Because I can’t resist. ↩︎

A word about Fifth Circuit nominee Todd Butler–well, a few words, with the reassurance that this won’t turn into a deluge of posts.

I found one piece of Josh Blackman’s ongoing series of posts lamenting Butler’s nomination odd. (And I was surprised that his commenters, who do not seem to think much of those posts, didn’t pick up on it.) One item in Blackman’s bill of particulars arguing that Butler is insufficiently “conservative”–with “conservative” serving in this case more as a kind of floating placeholder than a term with a fixed and useful meaning–is Butler’s academic writings. Blackman lists six articles written by Butler. Four were published during the years 2008 to 2009 or 2010. (Blackman lists one article as published in 2009; Westlaw lists it as a 2010 publication.) The other two are more recent, appearing in 2018 and 2021. He writes that “one through line” in those articles “seems to be a criticism of Justice Scalia.”

As lines go, this one neither very long nor especially “through.” Scalia is mentioned in two of the six articles. Both date to the dawn of Butler’s legal career. One was his student note; the other was published a year or two after graduation. Scalia does not come up at all in the two recent articles, both of which are pretty standard fluff. (As someone going through an epic dry spell as an academic writer, I’m not sneering. Would that I could produce some fluff! I happen to like tributes and other occasional pieces, as the genre is known, in law reviews. But they are what they are.)

To write that Butler, as a tyro, was critical of Scalia in two articles would be fair criticism, albeit it would also be pretty weak sauce. But it strikes me that given the timeline, it is rather unfair of Blackman to actively–I would say aggressively–frame his post describing the articles in the present tense. He uses it some fifteen times in a 350-word post (not counting the list of articles and the quotes from Butler’s writings). One might accidentally get the impression from this that Butler’s writings actually show a “through line” in his views that extends all the way to the present, instead of one running from a long time ago to a marginally less long time ago.

Perhaps the use of the present tense was just a matter of prose style. But, although Blackman was a signatory of the 2016 “Originalists Against Trump” letter whose text I drew from in the title of this post, as a writer I would not normally describe his views about Trump in the present tense based on something he signed on to a decade ago. The title may be accurate, but it is also unfair.

One may note that 2016 is some six years after the last of Butler’s publications mentioning Scalia, and of course Blackman was not a recent law school graduate at the time. Indeed, the 2016 letter is stronger evidence of Blackman’s current views than Butler’s 2008-2010 writings are of his. But I still wouldn’t use the language he subscribed to a decade ago in a way that might lead casual readers to believe that Blackman demonstrably feels the same way about Trump today. I have no idea what Blackman thinks about Trump today. Indeed, on the whole I would say that, at least in the things I have read since 2025 (and keeping in mind, in all fairness, that I don’t listen to podcasts, watch YouTube interviews, or traffic in other such crap), he appears to have been pretty scrupulous about focusing on the minutiae of the federal courts rather than the conduct of the executive branch, and generally seems to avoid discussion of Trump, Trump’s actions, Trump’s policies, Trump’s choice of officers, Trump’s style of administration, Trump’s view of law and the rule of law, and so on. He may love all of it, or he may view all of it with contempt and dismay, or the mix may be 90 percent contempt and 10 percent admiration. I just don’t know.

“Can’t someone change his mind?” has become a common social-media defense in discourse criticizing Trump, his regime associates, and his supporters. It is a popular reply, for instance, when someone points out that J.D. Vance at one time described Donald Trump as an idiot who is unfit for office, called his rhetoric reprehensible, and wrote privately that he might turn out to be “America’s Hitler,” and uses these statements to suggest that Vance may just possibly be a hypocrite, or have no real beliefs at all, or view collaboration with “America’s Hitler” as a small price to pay for personal advancement. As the example and the social-media context suggest, it is mostly used not as a serious appeal to the possibility of genuine reflection, but as a form of rhetorical bullshit. Like “cry more” and “fuck off jew,” it’s well-suited to a world of character limits and appears frequently in the mob’s responses to posts by actual conservatives who have committed the sin of remaining conservative. 

But that doesn’t mean it’s untrue. Of course someone may change his mind. I don’t feel the same way about the current Trump regime that I did about the first. Blackman may not feel the same way about Trump that he did in 2016. And Butler may not have the same views about “conservatism,” again allowing for the use of the word as a loose signifier, or about Scalia that he did when he first emerged from law school. Maybe Trump’s decision to make American refugee policy openly white-nationalist, his flagrant corruption, or his fawning admiration for Vladimir Putin made a believer out of him. How could I say? All I know for sure is that describing Butler’s youthful writings from two decades ago in the present tense does not seem a terribly fair or sound way of proceeding.

I should make clear that I have no particular brief for or against Butler. He seems like a qualified nominee now, and will probably disqualify himself from judicial office by the time his confirmation hearing is over.* And, as it turns out, I’m not crazy about judges grooming their former clerks as successors or colleagues either–although, especially in what is purportedly a unitary executive, it should be clear that since the nomination came from Trump, Blackman should be openly criticizing Trump first and Judge Southwick a distant second. In this case, the buck stops with the person making the nomination. The fact that we have very bad boyars shouldn’t obscure the even greater certainty that we have a terrible, terrible czar.

My interest has less to do with Butler himself and more to do with fairness, and with the academic role and its liberating constraints. The great thing about being an academic–and, in my view, it carries over to all public writings by academics on subjects within their remit–is that you don’t have to be exciting or clever or rhetorically calculating, and you do have to be scrupulously fair. And because your salary doesn’t depend on writing on spec or scrabbling for subscribers, you can and must keep on being fair and unexciting for an entire career. This changes the stakes of our writing in useful and important ways. Butler is a lawyer with a long and active career in practice and will probably become a federal judge, and that, for better or worse, may affect what he has or hasn’t said or written and how it will be treated.

By contrast, people like Blackman–or me–eschewed practice for the academic vocation, and neither of us will ever become federal judges. That frees us to say what we believe. At the same time, it imposes on us a strict duty of carefulness and fairness, and removes any excuse for remaining prudently or calculatedly silent about matters within the scope of our academic interests.

By that standard, and because of those low stakes and high obligations, it seems to me that Blackman ought to have been much clearer about the ancient and temporally limited nature of Butler’s “through line.”

* This on the view that federal judicial office is an honor; that it should be filled by honorable people; that judicial office in particular demands qualities of independence and courage, properly defined; that these qualities include the ability to speak honestly and straightforwardly, even while facing the Senate and even at the cost of displeasing the temperamental president who made the nomination; and that offering a canned, insincere, cowardly, blindingly-obvious-truth-evading, bullshit answer to the softball question “Who won the 2020 presidential election?” is so dishonorable and so lacking in either courage or independence as to disqualify that nominee from holding any office, let alone federal judicial office.

It is perhaps unusual that we find ourselves in a situation in which, although Trump has nominated many qualified people to the federal courts, in this term there have been close to zero qualified judicial confirmations, the qualified individuals having voluntarily disqualified themselves as fit judicial candidates on the very brink of donning the robe. But then, as we are so often reminded, Trump himself is unusual, and this can be counted as the cost of capitulating to a cult of personality and the fantasies such a cult inevitably first breeds and then uses as loyalty tests. In any event, Butler has not yet faced his crucible; and although it’s morally irrelevant, perhaps the shift in the prevailing winds will be such that by the time he faces it, it will be less costly for him to pass that test by simply answering the question honestly.

I’m reading through the Senate’s Report on the 1968 Omnibus Crime Act. One part of this law purported to set aside Miranda in federal criminal cases. (This was held invalid by the Court in 2000). Another portion imposed various gun control measures. Here was the Report’s punchline about the 2nd Amendment:

“It is clear, for example, that a State law prohibiting the carrying of revolvers without a license, or forbidding possession of concealed weapons, does not violate either the Federal or that State’s constitution. And it is clear that no body of citizens other than the organized State militia, or other military organization provided for by law, may be said to have a constitutional right to bear arms.”

The new Courts Law essay comes from Allan Erbsen (Minnesota) reviewing Aderson Bellegarde François & Helen Hershkoff, Pennoyer, Due Process, and the End of Reconstruction, __ N.Y.U. L. Rev. __ (forthcoming), which places Pennoyer in the jurisprudential and constitutional debates of the late 1870s.

I started listening to the oral argument in Frontiero v. Richardson. In those days, the argument audio picked up some of the chit-chat among the Justices on the bench. At the start, you can clearly hear someone (most likely Chief Justice Burger) saying “short skirt” repeatedly. Here is the link

I can’t say for sure to what or who this comment refers. But Ruth Bader Ginsburg was sitting at counsel’s table and would soon make her argument. In any event, it’s a rather odd kickoff to an argument on sex discrimination.

The Sixth Circuit affirmed an injunction prohibiting Tennessee from enforcing a law prohibiting “recruiting” minors (i.e., providing truthful information about how) to obtain lawful abortions outside of Tennessee. The majority affirmed a universal injunction for two reasons–the law was overbroad and it raised concerns of interstate federalism (one state infringing on the power of another) rather than horizontal separation of powers as in CASA. Chief Judge Sutton dissented on the merits (he argued that plaintiffs’ speech does not violate the law, properly construed) and on scope..

Unsurprisingly, I believe Sutton (pp. 69-72) has the better of the exchange than the majority (pp. 40-45)

Adopting universal (rather than nationwide) recognizes that party particularity and complete relief apply to all injunctions in constitutional cases, not only challenges to federal law. Universality captures all beyond-the-plaintiff injunctions, with variance only in the size of the universe. But the principle of party particularity should not vary with the targeted law. I am amazed a court could go a different direction on this point in the face of CASA‘s categorical language.

Overbreadth goes to the merits. It allows a party to prevail on a First Amendment challenge to a law even where the party’s speech is unprotected where the law regulates a wide range of other people’s protected speech. And it may create binding precedent that makes obvious the outcome of future enforcement efforts. But the remedy–stopping enforcement of the law–remains particularized to the plaintiff. That should be obvious from United States v. Stevens (which the majority emphasized in discussing overbreadth); although Stevens’ animal-crush videos might have been unprotected, he could get the Court to rule that the law was constitutionally invalid because it could have reached other people’s hunting videos. But the remedy was singular to Stevens–dismissing his prosecution. The rest was a matter of precedent applied to future enforcement efforts.

Here’s another way in which the “ceremonial civic space” has shrunk. The Vice-President used to be someone who did very little. He was therefore useful for presiding at formal events or (in the cliche) representing the United States at funerals.

This came to an end with Richard Nixon and/or the Cold War. Since then, Vice-Presidents have been important partisan and administrative officials.

Complete information here. For those who graduated law school between 2023-2028. Sponsored by Judicature and the Bolch Judicial Institute.

In October 1972, Birch Bayh published an article in the Notre Dame Law Review entitled “The Need For the Equal Rights Amendment.” Note the date. This was after the ERA was sent to the states for ratification but before Roe and Frontiero. What you see through this window is a different view of what constitutional law could have looked like.

While Senator Bayh repeated many of the standard arguments for the ERA, he made two points that startled me. Here is #1:

“[A] law which bases legal consequences on a characteristic unique to only one sex (e.g., the ability to bear children) would be fully constitutional.”

This was saying that state abortion bans would be valid under the ERA, though Bayh never used the word “abortion” in the article. T

#2 involved “the rights to privacy established in Griswold v. Connecticut. As the House and Senate Committee Reports on the Amendment both stated, ‘[T]his right [to privacy] would . . . permit a separation of the sexes with respect to such places as public toilets, as well as sleeping quarters of public institutions.”

This right to privacy is very different from the one that we learned in school. Abortion is not included, but other issues that are still considered valid sex distinctions (bathrooms in public buildings) are. It’s not hard to see how Roe pulled the rug out from under Bayh’s arguments. I don’t know, though, to what extent he anticipated Roe. The Bayh Subcommittee did hold many hearings on that case (more than on any other, which is telling) but the ERA rarely came up.

A side note to my prior posts on the unitary executive. The Senate is our only institution that has a different ceremonial and functional head. The Majority Leader runs the Senate. But the President Pro Tempore is the leader who is mentioned multiple times in the Constitution. (The Majority leader is not mentioned). The President Pro Tempore is now just the most senior Senator in the majority, though that isn’t always how the post worked.

What does the President Pro Tempore do? Receive special communications (say, under the Twenty-Fifth Amendment). Preside over the Senate for some ceremonies when the VP cannot or will not. And so on.

Now why not have the Majority Leader do this? The Senate could, of course, make the President Pro Tempore the Majority Leader. Presumably they think that there is some value in separating these roles in a way that the House and the Executive do not. (The House could, of course, follow the British tradition and make the Speaker someone who is not in the party leadership, but we’ve never really done that.)

What about the Chief Justice and the Supreme Court? That’s another post.