Waiting on the Supreme Court.

Following the live chat at SCOTUSblog: "The cases still to be decided: birthright citizenship; the president’s power to fire the heads of independent agencies; the transgender athletes cases; two election law disputes; and whether a geofence warrant violated the 4th Amendment."

The full text of new opinions will be available here, at the Court's website.

ADDED: We have Watson v. RNC:  "The federal election-day statutes do not prevent Mississippi from counting absentee ballots postmarked by election day but received up to five days thereafter; nothing in the federal election-day statutes requires ballots to be received by election day." That's written by Justice Barrett and joined by the Chief and Justices Sotomayor, Kagan, and Jackson. Dissenting are Justices Alito, Thomas, Gorsuch, and Kavanaugh.

Next is Chatrie v. United States: "Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information. Justice Kagan writes the majority opinion, joined by the Chief and Justices Sotomayor, Kagan, Kavanaugh, and Jackson. Justice Gorsuch writes a concurring opinion, and Justice Alito has a dissent joined by Thomas and Barrett. From the Kagan opinion:

Consider just a few trips that a person is apt to think “indisputably private”: to “the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, [or] the by-the-hour motel.” And unlike a GPS device, Location History enables police officers to focus on precisely those sites—to see, in a given time block, who shows up. Similarly, Location History—even two hours of it—allows officers to target one-off events of potential interest: a gun show, say, or a political rally....

From the Gorsuch concurrence:

I might have hoped that the Court would have pursued a more traditional approach to the Fourth Amendment today. But look carefully and you will see hints of it at work even in the Court’s opinion. Why is the Court so protective of Location History data, email, and electronically stored photos and calendars? Because, it turns out, “a user reasonably understands” all those things “as his own.” Put another way, they are his effects. And why does the Court hold Mr. Chatrie’s effects protected by the Fourth Amendment even though a third party stores them? Because, the Court says, those effects remain his “even though [they are] stored on Google’s servers.” Put another way, entrusting your effects to a third party for certain agreed purposes doesn’t mean they are no longer yours....

Now, we get the last opinions of the day, Cook and Slaughter, the cases about the President's power to fire heads of independent agencies. David Lat at SCOTUSblog: "In terms of their bottom lines at least, Slaughter and Cook came out as many expected. 'The Fed is different' carried the day."

"As some of you might recall, earlier this year I had an AI oopsie of my own..."

Writes David Lat, in "An AI Screw-Up By... Sullivan & Cromwell? There are multiple ironies involved in this unfortunate incident."

I’ll simply repeat my two signature quips, urging you to extend grace when it comes to AI fails:

   • “In the future, everyone will be world-famous for 15 minutes… for an AI screw-up.”

   • “The next time you hear about an epic AI fail, instead of (or at least after) laughing your ass off, perhaps have the humility to say this to yourself: ‘There but for the grace of God go (A)I.’”

Or, if you prefer, here are some bon mots from Claude, which it generated after I fed it my two sayings and asked for more along the same lines:

"Key Justices Skeptical of Limiting Birthright Citizenship."

The NYT opines.

A majority of the Supreme Court appeared skeptical of President Trump’s efforts to limit birthright citizenship during arguments on Wednesday. Key conservative justices raised doubts about the constitutionality of the president’s executive order that would end automatic citizenship for children born on U.S. soil to undocumented immigrants and some temporary foreign visitors.

But in an argument that lasted more than two hours, several of the court’s conservative justices also asked tough questions of a lawyer for the American Civil Liberties Union, which brought the legal challenge, making the outcome of the legally complicated and hugely consequential case not fully clear....

Here's the live chat that happened on SCOTUSblog. Excerpt from the end:

"After hearing all of you talk about this, I'm even less sure of how this case will come out than I went in."

"I felt far more confident before I heard the oral arguments. I felt less confident, but still, you know, I was where I was going into this conversation and now I'm leaving, throwing my hands in the air. I do think, however, in that big picture part that when you think about Chevron doctrine... that the executive branch agencies are going to have less power to define their own scope of power.... And at the same time, I think they will give the President more power over his personnel that you don't want sort of complete vertical power in an executive branch that then also has a lot of horizontal power to get extra legislative power.... So, Mr. President, you have complete control of your executive branch and also we've taken away some of the powers of the executive branch — I think would be the best outcome of this term...."

Said Sarah Isgur at the end of the Advisory Opinions podcast yesterday, summing up after moderating a high-quality conversation about the oral argument in the tariffs case.

"My guess is that regardless of what happens in Tom’s criminal case, SCOTUSblog will endure."

"Tom scaled down his involvement with the site years ago—if the indictment is to be believed, he had a lot of other things on his plate—and today SCOTUSblog is really run by Amy Howe, its main courtroom reporter, and Ellena Erskine, its editor. I see no reason why Amy, Ellena, and SCOTUSblog’s nine regular contributors can’t continue their excellent and invaluable work. I don’t know—and can’t imagine—what’s going on in Tom and Amy’s marriage right now... If Tom and Amy go their separate ways (or even if they don’t), they should squarely place all ownership and control of SCOTUSblog in Amy’s hands.... And as a loyal reader of SCOTUSblog pretty much since its inception, I hereby volunteer to do anything in my power to keep it up and running...."

Writes David Lat, in "SCOTUSblog Founder Tom Goldstein Hit With 22-Count Federal Indictment/A lengthy indictment accuses the once high-flying Supreme Court lawyer of massive tax evasion—tied to multimillion-dollar poker losses and multiple affairs" (Substack).

Lat thinks Goldstein's future is not all used up: "He’s only 54, and he still has the intelligence, hard work, and hustle that allowed him to launch a leading Supreme Court website and become one of the nation’s top SCOTUS advocates, even though he never clerked for the Court or graduated from an elite law school. And if the allegations are true, Tom has an unimaginable amount of energy: he was somehow able to argue before the Supreme Court, run a law firm, win and lose tens of millions in high-stakes poker, juggle a dozen women, oversee SCOTUSblog, and raise two kids... He also helped develop a pitch for a television show based on his life and career, which got picked up for development by NBC in 2009. The program, tentatively called Tommy Supreme, never made it to the screen...."

But now the story is far more exciting — especially if he's guilty. Lat sketches out possible futures for Goldstein — including "a pardon from Trump." And, interestingly, Goldstein published "End the Criminal Cases Against Trump" in the NYT (last November, just after the election). But if the idea is to produce a great redemption story —  worthy of that TV show — it can't end with a presidential pardon.

"Usha and J.D. made a memorable pair. The legal writer David Lat remembers attending a poker night with the couple in 2011..."

"... at the neo-Gothic home of [Amy] Chua and her husband, fellow Yale law professor Jed Rubenfeld.... At the time, Chua was mainly known for her book Battle Hymn of the Tiger Mother, a gaily provocative paean to achievement-oriented parenting. Chua was a kind of den mother to certain student protégés, known on campus as 'Chua pets,' and J.D. was central among them. According to another former friend of the pair, Chua was not a fan of Usha. 'Probably because she didn’t engage in her bullshit,' the former friend said. 'You have to gossip and drink. J.D. loved that shit.' Usha did not. Lat happened to ride the Metro-North up from New York for the poker game with the soon-to-be Vances. He told his husband later that night that they’d reminded him of another famous Yale Law couple, Bill and Hillary Clinton. 'They had a kind of energy to them,' Lat said. 'They seemed very confident and successful. One thing that struck me as Hillary-esque was that Usha seemed to have more polish than J.D.'"

From "What Is Usha Vance Thinking? The veep candidate’s wife is the child of immigrants, a former Democrat, a highly skilled lawyer — and a total mystery" (NY Magazine).

"The significant ideological gap between Justices Thomas and Alito, on the one hand, and the Trump nominees, on the other, can be seen in their Martin-Quinn scores..."

"... a measure of judicial ideology developed by political scientists. Based on their rulings during the court’s last term, Justices Thomas and Alito earn scores of 2.949 and 2.458, the higher number signifying greater conservatism. Justices Gorsuch, Kavanaugh and Barrett earn scores of 1.019, 0.791 and 1.318, respectively — fairly close to one another, but markedly different from the two scores of the staunch conservatives anchoring the right wing of the court. Nor do the Trump justices march in lockstep with one another. In fact, Justices Gorsuch and Kavanaugh disagreed more with each other in their first term together than any other pairing of justices appointed by the same president since the Kennedy administration.... They have found themselves on opposite sides of such issues as the death penalty, defendants’ rights, immigration law and Indian law.... 'The conservative wing of the court is not a monolith.'... And understanding these nuances is critical, especially for lawyers and legal organizations on the left who are 'playing defense'...."  

From "Trump’s Supreme Court Picks Are Not Quite What You Think" by David Lat and Zachary B. Shemtob (NYT).

"... Professor Dan Epps... hypothesized that Yale plans to make major changes to admissions in the wake of the expected Supreme Court affirmative action rulings, 'and they are doing this proactively'..."

"'... rather than dealing with any rankings implications later.' [Some] students [agreed and] speculated... that not having to worry about LSAT and GPA data dragging down its U.S. News rank will allow YLS to either (a) continue to use racial preferences in admissions or (b) water down its academic credentials. Furthermore... some sources suggested that Dean Gerken withdrew from the rankings because she feared that YLS was about to lose the #1 spot it has held for more than three decades—and she didn’t want that to happen on her watch.... One professor told me that... there was no sense within the faculty that YLS’s #1 ranking was at imminent risk. Instead... 'This is clearly part of a larger and deeper commitment on her part toward leadership in the law school industry when it comes to fairness, welfare, and equity.'"

From "Yale And Harvard Law To U.S. News: Drop Dead/Two leading law schools have withdrawn from the influential law school rankings; will others follow?" by David Lat (Substack).

I remember when U.S. News first started this ranking. It was 1987, and I was 3 years into teaching at the University of Wisconsin Law School. From day one, the professors at my school were hostile to the rankings. We had our values, and how dare U.S. News attempt to influence our choices. 

Here's how the rankings looked in 1987. We were #20 at that point — the point when the game began. A decade later we were struggling for position in the 30s and we currently stand at #43.

"Sorry, Harvard, but 'visual diversity'—having a campus that looks like a Benetton ad—isn't a compelling state interest."

Writes David Lat (at Substack).

In the UNC argument, Justice Thomas said this to Ryan Park: “I've heard the word ‘diversity’ quite a few times, and I don't have a clue what it means.”

Justice Thomas, I can explain to you exactly what “diversity” means to Harvard and UNC. Allow me to share a story....

"One of the nation’s top universities is apparently not great about doing its homework."

Said David Lat, quoted in "Blunder in Affirmative Action Case May Cost Harvard $15 Million/A missed insurance notice opened a window onto the cost of litigating challenges to race-conscious admissions programs to be heard this month by the Supreme Court" (NYT).

"The agglomeration of legal talent on both sides of Twitter v. Musk is mind-boggling—as is the amount of money being billed on this case."

"But with stakes ranging from a $1 billion breakup fee on the low end to a $44 billion acquisition on the high end, with lots of room for a settlement in between, there’s plenty of cash sloshing around to cover the lawyers’ fees.... Who will prevail in the end? I agree with the conventional wisdom that Twitter has the upper hand. It seems to me that Musk simply got a case of buyer’s remorse, especially after the stock market (including Tesla’s share price) went south.... [T]he reasons given by Musk for walking away seem pretextual. Yes, specific performance is generally a disfavored remedy in contract law compared to money damages.... [but Delaware] Chancery has not hesitated to order specific performance of billion-dollar M&A deals in the past... [I]f Twitter v. Musk goes to trial, the spectacle will be incredible. I’m not big on scatology, so I tuned out Amber Heard’s testimony about poop on the bed. But Elon Musk testifying about his poop emojis? I’m here for it."

Writes David Lat (at Original Jurisdiction).

When are things melodramatic enough that we feel like watching? If we are lawyers, then maybe contracts worth a big enough amount of money are enough. I will never forget the way a partner — at the "biglaw" firm where I worked before I became a lawprof — overpronounced the "b" in "billions." If it's a "b" and not an "m," you'd better stand in awe. I wanted to work on cases that had interesting issues, and for that, in that place, I got called "an intellectual."

Speaking of "b" and "m," long ago, when I was growing up, the conventional word for the substance that is now called "poop" — when speaking around children and other delicate folk — was "b.m." At least in the region where I lived, the place with the famous Chancery Court, Delaware. People would say, "Oh, no, I stepped in dog b.m." or "This place smells like b.m." 

And as long as we are talking about Elon Musk and melodrama and scampering away from high finance to more lowly things, here's this new headline in the NY Post: "Elon Musk’s dad, 76, confirms secret second child — with his stepdaughter" ("Elon has not publicly commented on his father’s latest baby admission. The pair are still estranged, with Elon describing his dad as a 'terrible human being'...").

If you remember "Trap-house-gate"...

... you might want to read "A Controversial Dean's Departure From Yale Law/Dean Ellen Cosgrove, at the center of many recent YLS scandals, is retiring" by David Lat (at Original Jurisdiction).

"Maybe we’re getting to [new support for freedom of speech] in the broader culture, but in academia, I’m pessimistic."

"We’ve always had more people on the left than on the right in academia, and I’m not sure the ratio has changed much since I was in college or law school. But what’s happening now is different from what we’ve seen in decades past. We’re seeing a rigid ideology being put into place, subversions of free speech and due process, administrators kowtowing to activists, and illiberal trends that administrators are humoring and placating.... I’ve been in a lot of media cycles through this whole process, from my initial tweet to my suspension to my being shouted down at UC Hastings, and the current one is by far my favorite media cycle. It’s good to finally be driving the narrative. I hope that my 'lived experience,' so to speak, can in some measure advance the ball in exposing and perhaps even fixing the rot at the heart of academia."

Said Ilya Shapiro, interviewed by David Lat in "Constructive Cancellation: An Interview With Ilya Shapiro/What explains Shapiro's abrupt about-face in deciding to leave Georgetown Law?" (Substack).

"I think we’ll get a vote from Republican side for the following reason: I’m not looking to make an ideological choice here."

"I’m looking for someone to replace Judge Breyer with the same kind of capacity Judge Breyer had, with an open mind, who understands the Constitution, interprets it in a way that is consistent with the mainstream interpretation of the Constitution."

Said President Biden, quoted in "Biden talks Supreme Court timing with Democratic senators/The president huddled with Judiciary Committee members as a nomination fight looms" (WaPo). 

Top-rated comment: "Why is it going to take over a month to make a choice? Six of the senate votes on the Democrat side are octogenarians - we're one heartbeat away from another stolen seat." 

I read the WaPo article because it was linked by David Lat in an update to his "President Biden's Supreme Court Nominee Will Be..../Here are updated odds that reflect the current state of play":

"Like Judge [Ketanji Brown] Jackson, Justice [Leondra] Kruger has a dazzling résumé.... The main differences are that she’s younger and..."

"... likely to be more moderate on SCOTUS than Judge Jackson, at least based on her record on the California Supreme Court, where she has sided with Republican appointees more often than her fellow Democratic appointees. Some observers also see Justice Kruger as 'intellectually stronger' or boasting more 'intellectual firepower' than Judge Jackson. [UPDATE (3:06 p.m.): For some important clarification of the preceding sentence, please see my Twitter thread.] The youth and moderation cut both ways. Yes, the Biden Administration favors young nominees. But on the other hand, Justice Kruger is young enough that she’ll be a viable SCOTUS pick for another five to ten years, so she could be 'saved' for a future vacancy (just as Justice Barrett was passed over for Justice Anthony M. Kennedy’s seat so she could be “saved” for Justice Ginsburg’s). The moderation makes Justice Kruger easier to confirm, which is useful in a closely divided Senate. But on the other hand, it has made some on the left somewhat cautious about or even opposed to her."

Writes David Lat at "Handicapping President Biden's Supreme Court Shortlist/Here are my odds on the leading contenders—and some interesting historical analysis" (Original Jurisdiction). Lat gives Jackson a 40% chance of getting the nomination and Kruger a 30% chance.

I prefer moderate Justices, so I hope it's Kruger. And I would add 2 things: 

"The theme of our party was Constitution Day. I was trying to say we’d be serving classic American foods, quintessentially American foods—sort of caricaturing ourselves as Americans..."

"... on Constitution Day, this very American day. And I have a very casual tone when I write emails. So that’s why I referred to 'basic-bitch-American-themed snacks.'"

From "The Yale Law School Email Controversy: An Interview With Trent Colbert/Colbert is 'cautiously optimistic' that the climate at YLS might improve in the wake of this conflict." (The interview is conducted by David Lat at his Substack.)

Colbert is one of Yale Law School's Native American students, by the way, and the email at the core of this controversy was addressed to Native American Law Students Association. This is such a small group — so hard to recruit in "critical mass" numbers — that it amazes me that Yale wasn't especially considerate to Colbert when he was accused of racism. 

It's also interesting to me that the Native American group was making a party out of being ordinary Americans. It's so loathsomely incurious of Yale to jump at the critique by black students and to have no interest in what this meant to Native American students.

That party idea made me think of "Mundane Halloween," a trend in Japan and Taiwan where they costume themselves as ordinary people — "From 'the guy who had to work during vacation' to 'the surprised man who got a vasectomy last year,' all the costumes you're about to see are downright amazing."

"Now, could someone write an erudite, historically informed analysis arguing for why 'trap house' should be considered offensive?"

"Sure—and [Yale Law School diversity director] Yaseen Eldik, in his lecture to the sender of the email, has provided a helpful outline. But if you have to write a mini-dissertation on why something should be seen as offensive—or deliver a twenty-minute speech, as Eldik did—then it’s… probably not offensive.... In situations like this one, involving an allegedly offensive communication, law schools should have a 'meet and confer' requirement, like courts do when it comes to discovery disputes. Before the administration gets involved, the complaining students should be required to try and talk things out with the offending party.... ... I think that when students disagree with each other or take offense at certain statements made by other students, the students should be allowed to work out those differences on their own, without involvement by the administration (except in the most extreme circumstances). I recognize that the viewpoint I'm about to articulate is seen in some circles as naive or outdated, but I still believe that the proper response to misguided or offensive speech is more informed and appropriate speech (again, excluding situations of harassment, threats, and the like, which I realize can occur)."

Writes David Lat in "The Latest (Ridiculous) Controversy At Yale Law School/'Cancel culture' gets crazier" (Substack).

"So TMZ’s confident declaration that 'there is NO PRENUP' might not be correct. As Bill Clinton famously quipped..."

"'... It depends upon what the meaning of the word "is" is.' Maybe there 'is' no prenup, but there was a prenup, and it just got superseded — fancy legal-speak for 'supplanted' or 'replaced' — by a separation agreement."

Writes David Lat in "Bill And Melinda Gates Are Divorcing; Do They Have A Prenup?/The answer is... it's complicated." (Substack). 

There's a petition for divorce that has a section on "Written Agreements" and then lists only a separation agreement. Lat explains why you can't conclude that there was never a pre-nup agreement.

(To comment, email me here.)

David Lat assesses the odds on the various candidates for the Supreme Court nomination.

At Above the Law.

He gives Amy Coney Barrett 50-50 odds:

Trump has wasted no time in meeting with Barrett, who made her way to the White House and met with the president [on Sept. 21]. According to the New York Times, Trump “spent much of the day with her and later told associates that he liked her, according to people close to the process, who considered her increasingly likely to be the pick.”

(One wonders whether having them spend so much time together was an attempt by Barrett backers to get Trump more comfortable with her. At their prior interview back in 2018, the thrice-married, not-very-religious Manhattan billionaire and the devoutly Catholic, midwestern mother of seven reportedly lacked “chemistry,” concluding their conversation before their allotted time was up.)

"Late that night, I learned that I would need to be intubated, or placed on a ventilator. This terrified me."

"A few days earlier, after my admission to the hospital, my physician father had warned me: 'You better not get put on a ventilator. People don’t come back from that.'... I have hazy memories of the intubation. My anesthesiologist was a woman with a slight Caribbean accent and an authoritative, reassuring demeanor. In my overwhelmed state, it seemed that a dozen people were in the room, when, in reality, it was probably just a handful. Aided by anesthesia, I soon fell asleep. I spent the next six days basically asleep, under sedation, the ventilator serving as my lungs. I remember nothing from this period.... Eventually, my doctors faced a choice: take me off the ventilator and see if I could breathe on my own, or give me a tracheostomy, which would have required an incision into my neck to insert a breathing tube directly into my windpipe. After conducting tests to assess my ability to breathe on my own, the doctors decided to take me off the ventilator.... In New York City, where I was hospitalized, 80 percent or more of coronavirus patients who end up on ventilators have died.... Many patients who come off ventilators suffer lasting physical, mental and emotional issues, including cognitive deficits, lost jobs and psychological issues, such as depression and post-traumatic stress disorder.... I am incredibly grateful to be alive. And for that, I have the ventilator to thank."

Writes David Lat (in WaPo).