Trump judges, all around
Whether it be religious claims, Texas laws, or classified documents kept at Mar-a-Lago long after Trump's presidency ended, Trump's judicial appointees are everywhere. As are the ones who came before.
It was a rather dramatic week, legally speaking.
It was a week that highlighted the many ways in which Trump-appointed judges are affecting all levels of our federal judiciary in all areas of the law and in all areas of our lives. And yet, it also bore reminders that the effort to turn the judiciary toward what it has become began long before Donald Trump took the oath of office in 2017.
The state of the federal judiciary, as seen at all three levels, in three cases.
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MAD SAM: Justice Samuel Alito, a George W. Bush appointee, is very upset about the fact that Yeshiva University might have to recognize a club it doesn’t agree with — even if only for a few months.
The would-be club is YU Pride Alliance, an LGBTQ group. A New York state trial court judge had ordered, under New York nondiscrimination law, that the university recognize the group. Five justices (Chief Justice Roberts and Justices Sonia Sotomayor, Elena Kagan, Brett Kavanaugh, and Ketanji Brown Jackson) agreed on Sept. 14 that the time wasn’t right for the Supreme Court to step into the case; the school had to go through all of the state-court process first. (Yeshiva University, for its part, has now said it is ending clubs altogether until this is resolved to avoid having to recognize YU Pride Alliance.)
Alito, often mad even when on the winning side of a case, was particularly mad in his dissenting opinion to the court’s decision — as temporary as it might be.
“The loss of First Amendment rights for even a short period constitutes irreparable harm, and the appellate process in the state courts could easily drag on for many months,” Alito wrote, joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett. “And as for the interests of Alliance members and the general public, while a stay would deprive the Alliance of the statement it wishes to obtain, Alliance members would not be prevented from socializing and conducting activities that do not require official recognition.”
In short: Very worried about the school’s claimed religious rights. Not so concerned about the students’ claimed civil rights.
At the same time, perhaps unsurprisingly, Alito and the same conservatives (plus Kavanaugh) have no problem with Black people having their votes illegally diluted for a year.
In February, a conservative majority put on hold a lower court ruling that had found Alabama’s redistricting violated the Voting Rights Act by doing just that — diluting the votes of Black voters. All three Trump appointees joined Thomas and Alito in the decision, giving them the same five-justice majority that would reverse Roe v. Wade in June.
Kavanaugh wrote a brief opinion explaining why he joined the majority, and Alito joined that opinion. In it, the pair insisted that the move “simply stays the District Court’s injunction pending a ruling on the merits.”
Allowing Black people’s voting rights — as determined by a trial court judge — to be put on hold for a year is a “simpl[e]” thing for Alito. He, however, would insist that a religious school’s claimed First Amendment rights must be vindicated immediately.
In both cases, Roberts — who has regularly undermined voting rights and upheld religious claims in his time on the court — thought Alito was going too far, at least for the moment. As to the majority’s action in the Alabama case, Roberts wrote, “the District Court properly applied existing law in an extensive opinion with no apparent errors for our correction.”
Ironically, though perhaps not surprisingly, in both cases, the only consistency from Alito — as well as Thomas, Gorsuch, and Barrett — is their wanting to take control of the outcome of cases sooner — even though the speed with which they want to grant relief to the parties appears to depend on who’s asking.
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THEN, THERE’S THE 5TH CIRCUIT: The US Court of Appeals for the 5th Circuit covers, and is often thought of due to its oversight of, Texas cases, but it also hears appeals out of Louisiana and Mississippi.
And yet, it is so often the Texas cases.
That was no different this week. On Friday afternoon, Sept. 16, the 5th Circuit upheld the constitutionality of Texas’s law barring what it calls “viewpoint-based censorship” of Texans by super-large social media companies like Twitter, Facebook, and Youtube and requiring those companies to issue various transparency reports.
The prohibition on “viewpoint-based censorship” — Section 7 of the Texas law — is the most dramatic First Amendment portion of the ruling. Section 7 is going to be allowed, the 2-1 majority states in part, because it “is plainly unrelated to the suppression of free speech because at most it curtails the Platforms’ censorship—which they call speech—and only to the extent necessary to allow Texans to speak without suffering viewpoint discrimination.”
Yes, it’s a complicated sentence, but — as with much of the majority opinion — it comes back to this magical power that the 5th Circuit claims to have to deem something “censorship” and therefore not need to address how it is not actually “speech.” The court states that the provision is “plainly” not trying to suppress speech, but then it has to add three caveats: “at most” it suppresses something that the court has decided is of marginal value, the platforms “call” that something “speech,” but whatever it is the law “only” does that to help Texans.
Jameel Jaffer, the director of the Knight First Amendment Institute at Columbia University, went through the whole opinion — stating that there are “some very difficult questions” presented by the law. He nonetheless pointed out the many ways in which the court doesn’t even get to those difficult questions because it fails at far more basic steps.
Judge Andrew Oldham — a Trump appointee confirmed to the 5th Circuit with no Democratic support — wrote the court’s opinion. Judge Edith Jones, a Reagan appointee who has been on the court since 1985, joined almost all of Oldham’s opinion.
Judge Leslie Southwick, a George W. Bush appointee, essentially said that the opinion went too far and eventually lost him. As he began his opinion:
The central question in this case is whether social media platforms engage in First Amendment-protected expression when they moderate their users’ content. The erudite opinion of my colleagues in the majority says no. Although there are parts of the opinion I join, I write separately because, fundamentally, I conclude the answer to the question is yes.
The US Court of Appeals for the 11th Circuit took Southwick’s view, striking down a similar law out of Florida.
The dueling decisions set up a circuit split — which means the Supreme Court is more likely to take on the issue if any of the parties ask them to hear an appeal. (Notably, the deadline for Florida to file a cert petition in the case out of the 11th Circuit is this Wednesday.)
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COME ON, AILEEN1: US District Judge Aileen Cannon, on Sept. 15, formally appointed a special master — Senior US District Judge Raymond Dearie — to review Donald Trump’s challenges related to the items seized in the Aug. 8 Mar-a-Lago search.
Cannon, a too-well-known Trump appointee at this point, also denied the Justice Department’s request that she exclude the documents that contained classified markings from the special master review and allow the department to continue using those documents in its related criminal investigation.
I’ve written previously about the complications inherent in Cannon’s earlier order allowing the national security review related to the documents to continue while saying the use of the documents in the criminal investigation must be halted. Cannon’s denial of DOJ’s request did nothing to clear up those complications.
In general, this went over no better than Cannon’s prior rulings. To give just one example, former longtime DOJ prosecutor Andrew Weissmann called the decision “stupid” and “profoundly partisan.”
DOJ has already gone to the US Court of Appeals for the 11th Circuit to appeal the judge’s ruling on the use of the documents with classified markings and on those documents’ exclusion from the special master review process. Read more on the appellate efforts from Bloomberg’s Zoe Tillman and Emptywheel’s Marcy Wheeler.
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Yes, I am borrowing this heading from 50 or more people on Twitter, and I think one or two messages from friends, but I don’t recall where or from whom I saw it first.