The leak

I wish I could give the stunning leak of Justice Alito’s draft opinion in Dobbs its due today. For now, I will note that I agree with Bari Weiss’s take in its entirety, especially this part:

To my mind, though, the question of what this leak means for the institution of the Supreme Court is the most profound one. That is because it captures, in a single act, what I believe is the most important story of our moment: the story of how American institutions became a casualty in the culture war. The story of how no institution is immune. Not our universities, not our medical schools, not legacy media, not technology behemoths, not the federal bureaucracy. Not even the highest court in the land.

The Supreme Court was always the most cloistered governmental institution in America—the one where wisdom and precedent and reverence for our great constitutional tradition outweighed everything else. If there was something sacred that remained, this was it. Yes, there have been leaks from the Court before. But as Politico pointed out, last night’s leak was historic, and not in a good way: “No draft decision in the modern history of the court has been disclosed publicly while a case was still pending.”

I called up one of the smartest professors I know at one of the top law schools in the country, and he echoed that: “To my knowledge, it’s never happened before in the modern history of the court. It is the most serious possible breach.”

Serious, severe, shocking, he said. But in the end, not surprising. Why not? Here’s how he put it: “To me, the leak is not surprising because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing.”

What did he mean by that? “They think that everything is violence. And so everything is permitted.”

He went on: “I’m sure this person sees themselves as a whistleblower. What they don’t understand is that, by leaking this, they violate the trust that is necessary to maintain the institution.”

The Chief Justice has directed the U.S. Marshal to launch an investigation. This is a pivotal moment for the Court, as it works to quickly eradicate this source of institutional rot.

First Circuit rejects state judge’s criminal appeal as premature

The First Circuit Court of Appeals has rejected an appeal by Massachusetts state judge Shelley Joseph, claiming that it is premature. Readers will recall that in 2019, Judge Joseph was charged in federal court with obstruction of justice, after she allegedly helped an illegal immigrant avoid an ICE agent who was waiting in her courtroom to arrest him.

In federal district court, Joseph moved the dismiss the charges on the grounds of “absolute judicial immunity.” The district judge declined to dismiss, and Joseph appealed. But the First Circuit held that the appeal was premature because the trial court’s ruling did not operate as a final decision on the merits.

Interlocutory appeals — those taken up before the substance of a case is decided — are rarely granted, and there is no particular reason why this case should be an exception. As the First Circuit noted, even if Joseph can invoke judicial immunity as a defense, such immunity “does not provide a right not to be tried.” The case will return to the district court for further proceedings.

Judge, Jury, and … Defendant?

A former public defender sued the federal judiciary’s lead administrative institutions for mishandling a harassment claim. Can those same institutions select the judges who hear the case?

Next week, the Fourth Circuit Court of Appeals is scheduled to hear argument in Roe v. United States, a case involving allegations that federal court officials — including those in the Administrative Office of the U.S. Courts (AO) — mishandled a workplace harassment claim. But none of the judges hearing the Fourth Circuit appeal are actually from the Fourth Circuit, just as the judge who heard the original case in the Western District of North Carolina was not from that district. Nearly two years ago, Chief Justice John Roberts reassigned the case to a district judge in Massachusetts and a “Fourth Circuit” panel composed of judges from other circuits.

From the courts’ perspective, this reassignment of the case was ordinary and ministerial, a way of avoiding the appearance of partiality or bias by taking the case away from judges in the district and circuit where the key events took place. But the plaintiff, whose case was eventually  dismissed, suggests that the process of reassignment was itself so flawed as to create “blatant conflicts of interest” and a “severe appearance of impropriety.” Accordingly, she is seeking to vacate the judgment of dismissal. 

The controversial reassignment process involved the Chief Justice, the Judicial Conference Intercircuit Assignment Committee, and staff from the AO and the Fourth Circuit. The judiciary’s brief recounts that a Fourth Circuit staffer informed an AO staffer about about the need for an intercircuit assignment — both for the district court and appellate proceedings. The AO staffer then consulted a roster of judges who had previously indicated their willingness and availability to serve on panels in cases in which one or more judges had been recused. The AO staffer then contacted each of the judges to confirm availability and willingness to serve on the case. Once the judges were confirmed, the staffer notified the Chair of the Intercircuit Assignment Committee, who finalized the necessary administrative paperwork for the Chief Justice’s signature.

The court system (represented, interestingly enough, by the Department of Justice) repeatedly characterizes this process as “routine,” noting that none of the individuals involved in the reassignment had any stake in the outcome of the case. Still, the plaintiff is unsatisfied. Although she does not claim that any of the reassigned judges are actually biased against her, the mere fact that individuals from the Judicial Conference and AO were involved in their selection is a glaring red flag. As plaintiff’s brief puts it, “[w]here following a routine process would create a conflict of interest in a particular case, the routine is supposed to yield–through proper recusal–in order to avoid the conflict of interest.”

This is a matter of substantial organizational complexity. Taken at face value, the plaintiff’s position suggests that any lawsuit naming the Judicial Conference or AO as a party would necessarily invalidate any reassignment, unless a completely different administrative apparatus is tasked with that responsibility. That could be accomplished only with considerable inefficiency. Even if the AO were to hand over its files on available judges to another office within the federal court system so as to wash its hands of the decision, the files themselves might arguably be tainted by having come from the AO. And, of course, the mechanism for selecting new judges would be placed into the hands of individuals and institutions who are not readily equipped to perform that function. 

Unfortunately, the plaintiff does not offer any clear solutions here, other than blanket vacatur of the lower court decision. That is her right, and perhaps it is good strategy. But it is hard to see how the current panel would simply throw the reassignment process into disarray without some idea of how the challenge could be met in the future.

The administrative responsibilities of chief judges

This is an interesting primer on the administrative and public-facing roles that are expected of chief justices in Australia. As in the United States and other common law countries, the chief justice not only has ordinary adjudicative responsibilities, but also a wide range of administrative duties and an obligation to speak publicly in support of (and sometimes defense of) the court system.

None of this is particularly new or earth-shattering, but it is an excellent reminder of the organizational nature of a court system, and the organizational responsibilities that fall upon court leaders above and beyond their ordinary roles.

Newly elected judges swap courts to minimize conflicts of interest

Two recently elected judges in upstate New York have been assigned to each other’s courthouses in an effort to minimize potential conflicts. Both judges were long-time legal aid attorneys and developed extensive relationships with lawyers and other actors in their respective courts. Recognizing that the likelihood of a conflict of interest — real or perceived — was too high, the state court administrator had the judges swap courts for a year.

This is a rather elegant solution, and seems to be in the best interests of all involved. The judges can get accustomed to the bench without the constant specter of conflicts, and soon enough will return to the jurisdictions that elected them. In the meantime, the public can have more confidence that the judges’ decisions are not based on old professional relationships, and the court system will have fewer conflicts to manage.

CBO puts $43 million price tag on federal courtroom cameras

The Congressional Budget Office (CBO) has issued its estimate of the cost for implementing S. 818, the Sunshine in the Courtroom Act of 2021. That bill would authorize federal judges to record and broadcast court proceedings as long as doing so would not violate the parties’ due process rights. The authorization would last for three years.

Recognizing that the vast majority of federal judges would likely decline the bill’s invitation to record proceedings, the CBO estimates that only 10% of courtrooms nationwide (about 200 courtrooms total) would be fitted with modern video equipment. Still, the CBO expects that it will cost about $75,000 to set up each courtroom, and another $50,000 annually to administer the program. In all, a rough estimate of $43 million would have to be expended between now and 2026, when the program would automatically sunset.

Forty-three million dollars is a staggering number to most people, especially since ordinary video recording technology is now relatively cheap and accessible. To be sure, there are security and privacy issues, but wow, that’s a lot of money for a program that doesn’t even have staying power.*

* Of course, the federal government once spent $100 million on unused plane tickets in a six-year stretch, so your perceptions may vary.

Belva Lockwood and the admission of women to the federal bar

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On this day in 1879, President Hayes signed into law a bill permitting women to practice before all federal courts, including the Supreme Court of the United States. The legislation was largely the handiwork of Belva Lockwood, a pioneering attorney who had lobbied Congress on the matter for years.

Lockwood fought tenaciously to advance her legal career, as well as that of others. When the National University School of Law (now George Washington University) refused to give her a diploma upon completion of her studies, she appealed directly to President Ulysses S. Grant. (She received her diploma a week later.) Even though local judges professed to have no confidence in her, she built a successful law practice in Washington, DC. And when she was rejected for admission to the Supreme Court bar on account of her gender in 1876, she worked to pass legislation that, three years later, opened the Court to all qualified women. Lockwood would argue her first case before the Supreme Court in 1880, and later sponsored for admission Samuel R. Lowery, the first black lawyer to argue a case before the Court.

The landmark 1879 legislation did not open all doors for women in the legal profession. It would be many more decades before most law schools would admit women, and even then on largely unequal terms.* And, of course, the push to create a fully equal workplace (in and out of court) continues today. But Belva Lockwood played a central role in creating a path for so many successful female lawyers over the past 150 years, and it is fitting that we remember her today.

* Here I once more have to kvell about the honor of teaching at New England Law Boston, which in 1908 became the first law school exclusively for women.

New Mexico advances legislation to criminalize threats against state judges

The New Mexico House of Representatives overwhelmingly passed legislation that would impose criminal penalties on anyone who threatens a judge or the judge’s family members. The bill, which passed the House by a vote of 59-7, now heads to the state senate.

The proposed law would make it a misdemeanor to “doxx” any judge by sharing his or her personal information. Under the same law, it would be a fourth-degree felony to threaten a judge or the judge’s family with the intent of causing fear of great harm, disrupting the judge’s official duties, or retaliating for work done in court.

Some House members expressed concern that the bill criminalizes free speech. I am sympathetic to the concern that political speech be open, but the issue here is altogether different. Every ordered society limits the permissibility of threatening language. Here, threat to judges place a substantial risk of undermining the efficacy and legitimacy of the judicial system. Judges are prepared to have people upset with their decisions, but it is altogether different to ask them to serve when they are physically threatened.

We have seen too much of this behavior in recent years, including the recent threats to the young children of the judge in the Kyle Rittenhouse criminal trial. Criminalizing such malfeasance is long overdue.

Tunisian president clamps down on independent judiciary

This past weekend, Tunisian President Kais Saied issued a decree dissolving the country’s High Judicial Council and replacing it with a handpicked “Temporary Supreme Judicial Council.” The move gives Saied the power to remove any judge for “failing to do his professional duties” — i.e., any reason Saied comes up with — and further prohibits the judiciary from going on strike in protest of the changes.

Middle East Eye explains:

Saied’s relations with the judiciary have been on edge since he consolidated power last summer.

In July 2021, Saied, who won the presidential election in 2019 as an independent candidate, suspended parliament, dismissed the prime minister and assumed vast executive powers. He has been ruling the country by decree for months, bypassing the powers granted to him in the constitution. His power grab measures were labelled as a coup by critics and opposition groups, a charge that Saied rejects.  

The CSM – a body meant to remain free from political interference – was one of the last institutions in the country to remain outside his control. The council was established in 2016, after independent members were elected to it; their role is to oversee the appointment of judges, promotions, and disciplinary proceedings.

But over the past few months they have come under increasing scrutiny from the president. 

On multiple occasions, Saied has accused the council of failing to resolve high-profile cases, including the political assassination of left-wing leaders in 2013.

Saied accused the council of appeasing political forces within the country, namely Islamist-leaning factions like Ennahda, the biggest party in the suspended parliament.

In December, the Tunisian Association of Judges raised the alarm, saying the president’s ongoing campaign against the judiciary was turning the public against them. At the same time, cases accusing judges of wrongdoing started to emerge. At least a dozen judges were placed under house arrest as a result. 

Among them is Bechir Akremi, former general prosecutor of the Tunis Court of First Instance, who was placed under house arrest days after Saied announced his power grab in July. 

Akremi was accused of deliberately concealing important files regarding the 2013 assassinations of Tunisian leftist leaders Chokri Belaid and Mohamed Brahmi. He was also accused of being heavily influenced by the Ennahda party. In January, Akremi’s case was dropped on appeal, over technicalities, much to the displeasure of Saied.

“Unfortunately, some judges in the courts have manipulated this case,” Saied said last week. “This is not the first trial where they have tried to hide the truth for years.”

Judge Akremi’s case has become emblematic of the clash of power between Saied and the judiciary. Opposition groups warned Saied was trying to use the high-profile cases of political assassination as a guise to expand his powers and crush opponents. 

The move in Tunisia is reminiscent of the recent attacks on judicial independence by authoritarian regimes in Poland and Romania. And the moves are drawing thousands to protest in favor of judicial independence. Many fear the decree will open the door to sacking judges for purely political reasons.

This does not look good. It will be worth watching carefully.

Two federal bankruptcy courts move to combat forum shopping

Mayer Brown’s blog, Real Bankruptcy Intel, explains:

Following the controversy surrounding Purdue[‘s careful filing of a bankruptcy petition designed to land specifically with Judge Robert Drain], as well as a lull in filings nationwide, in November, the SDNY elected to adopt a random case assignment system. Specifically, subdivision (f) of Local Bankruptcy Rule 1073-1 now states:

    1. Mega Chapter 11 Cases. Notwithstanding subdivision (a) of this rule, the Clerk shall assign a mega chapter 11 case to a Judge in the District by random selection irrespective of the courthouse in which the case is filed. A chapter 11 case qualifies as a mega chapter 11 case if the assets or liabilities of the debtor are equal to or greater than $100 million. A multi-debtor chapter 11 case qualifies as a mega chapter 11 case if the cumulative assets or cumulative liabilities of the filing debtors are equal to or greater than $100 million.[5]

Therefore, as of December 1, cases filed in the SDNY are to be assigned on a random basis to judges irrespective of the courthouse in which they are filed. As part of this rule, any SDNY judge can preside over a case in a courthouse where he or she is not usually assigned. Chief Judge Cecelia G. Morris explained that she hopes the adoption of this system will result in a more balanced utilization of judicial resources.[6] Judge Drain himself also commented that he “supported the change unanimously.”[7] Such adaptation now places the SDNY on par with the District of Delaware—another longstanding hotspot for mega chapter 11 cases—which already had a random assignment system in place. This move is likely to prevent debtors from “judge shopping” within the district.

Within a month of the SDNY’s announcement, the Bankruptcy Court for the Eastern District of Virginia (the district that contains Richmond and Alexandria) also implemented a similar rule.[8]