Gift link attached here. Summary:

>Kate Shaw, a contributing Opinion writer, hosted a written online conversation with William Baude, a law professor at the University of Chicago, and Stephen I. Vladeck, a law professor at Georgetown and the author of “The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic,” to dissect and debate the state of the Supreme Court and the sweeping cases at the end of the court’s term.

Highlights include Baude referencing his speculation we may be in a constitutional crisis and Vladeck describing the court as deserving "the same credit we might give to the arsonist who shows up with a fire extinguisher" for their actions blocking Trump this term.

An interesting article about what Text, History, and Tradition analysis should do with "bad traditions", like the black codes that Hawaii relied on in Wolford. Excerpt:

>The Supreme Court’s turn to “history and tradition” raises the critical question of what to do about “bad traditions.” If the customs of yore were driven by racial prejudice, for example, what weight should they carry in interpreting the Constitution? In the Second Amendment case Wolford v. Lopez, the Court confronted this question. Justice Alito’s majority, Justice Barrett’s concurrence, and Justice Jackson’s dissent offered divergent responses. The back-and-forth brought the problem of bad traditions into sharp relief and highlighted the uneasy place of moral evaluation in traditionalist analysis.

In a case mirroring Town of Castle Rock v. Gonzales (2005), the 8th circuit declines to allow a lawsuit against the city over the police departments failure to enforce a restraining order— a failure which led to a homicide by the victim’s ex husband. Under Iowa law, a police officer with “probable cause to believe that a person has violated a no-contact order . . . shall take the person into custody”. However, the 8th circuit holds that “Despite its mandatory terms, the Iowa statute gave officers room to decide whether to arrest Christopher”, noting the similar questions presented in Castle Rock.

As the court notes in their intro: “Courts cannot remedy every wrong. Following Angela Prichard’s death at the
hands of her ex-husband, her family wants to hold the City of Bellevue responsible. Neither the United States Constitution nor Iowa law gives them a claim, however,so we affirm the dismissal of their complaint.“

tl;dr: much has been written about the issues with the judge-made doctrine of qualified immunity protecting police, but the extent to which the court has embraced judicial immunity without any statutory justification has led to even more extreme abuses.

The origins of judicial immunity

At the time of the Norman Conquest of England there were judges issuing opinions but no formal system of appeals. If you disagreed with the judgment of a court, you would bring a charge of "false judgment" against the court itself, leading to another challenge in the court of the superior lord. Absurdly enough, these challenges could even involve trial by combat of the appellant against a representative of the court and were generally seen as costly and inefficient.

Over time, the King's courts learned from Ecclesiastical Courts and developed a system of hierarchical review that mirrored what the church had done. This helped cut off parties' ability to mount "collateral attacks" on a judge's decisions. The doctrine of immunity grew more sophisticated in time, culminating in Floyd v. Barker, the first modern formulation of judicial immunity. In that case, displeasure with how a judge was handling a murder trial led to him being brought to the Star Chamber to answer for criminal conspiracy charges. However, that court held that while the King could discipline the judge in various ways, they would not allow criminal charges since doing so would harm the independence of the judiciary.

This doctrine came to America, and was first recognized by SCOTUS in the cases of Randall v. Brigham (1868) and Bradley v. Fisher (1871).

Pierson v. Ray: "every person" does not include judges

During the civil rights era, 42 USC §1983 became an incredibly important piece of law. §1983 was passed in 1871, and it allowed private civil suits against state officials who violated their rights under color of law. This was frequently used in lawsuits against police officers for arrests or excessive violence.

In 1961, a group of ministers undertook a "prayer pilgrimage" from New Orleans to Detroit. They expected to be arrested for using integrated facilities, and were in fact arrested in Jackson Mississippi following their stay in a whites-only waiting room. They were convicted in the lower court, but won a partial victory on appeal, at which point they brought a §1983 suit against the police and judge. In Pierson v. Ray, the court found for the judge, noting that "Few doctrines were more solidly established at common law than the immunity of judges from liability for damages for acts committed within their judicial jurisdiction". While that sounded good, they also relied on some eyebrow-raising logic from Bradley, stating that "[the doctrine] is not for the protection or benefit of a malicious or corrupt judge, but for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences".

In the court's view, §1983 did not extinguish legislative immunity (they held as much in Tenney v. Brandhove (1951)), and it followed that it didn't extinguish judicial immunity either. As the court saw it: "The immunity of judges for acts within the judicial role is equally well established, and we presume that Congress would have specifically so provided had it wished to abolish the doctrine". While segregation was obviously bad, the actions in this case weren't absurdly ultra vires, so the outcome seemed reasonable enough.

Stump: just how far can you take "jurisdiction"?

In 1971, Ora Spitler had a problem. As she saw it, her 15 year old daughter Linda was "somewhat retarded", associating with "older youth and young men", and felt that it would be in her daughter's best interest to be sterilized "to prevent unfortunate circumstances". Ora filed a petition through her attorney to an Indiana county court judge. Without a docket number, a filing with the clerk, a hearing, a guardian ad litem, and without citing any statutory authority, the judge signed off on an order the same day he received the petition. Six days later, Linda was told that she had to have her appendix out and was secretly sterilized. She didn't discover the truth of what happened until later when she was married and failed to conceive, at which point she sued under §1983.

Unfortunately, Linda lost 5-3 at the Supreme Court. Under Indiana law, county courts had "original exclusive jurisdiction in all cases at law and in equity" and jurisdiction over "all other causes, matters and proceedings where exclusive jurisdiction thereof is not conferred by law upon some other court, board or officer". Thus, even though there was no possible legal authority under which the order could have rested, the judge who signed off was performing a legal function and thus entitled to absolute judicial immunity per the majority. Justice Stewart wrote a forceful dissent, saying that:

>In sum, what Judge Stump did on July 9, 1971, was in no way an act "normally performed by a judge." Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since.

>It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. [...]

>There was no "case," controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decision making. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.

Mireles: surely we'll find a limit somewhere, right?

In November 1989, California Superior Court judge Raymond Mireles was not having a good day. After LA county public defender Howard Waco failed to appear for the initial call of the morning calendar, Judge Mireles issued a bench warrant for his arrest, and dispatched two deputies to retrieve him, with instructions to "rough him up a little" to teach him not to skip court dates. Waco was detained by these officers and sued for his treatment under §1983.

He too lost at SCOTUS with a per curiam and 3 noted dissenters. As the court saw it, "A judge's direction to court officers to bring a person who is in the courthouse before him is a function normally performed by a judge", and went on to conclude "If Judge Mireles authorized and ratified the police officers' use of excessive force, he acted in excess of his authority. But such an action - taken in the very aid of the judge's jurisdiction over a matter before him - cannot be said to have been taken in the absence of jurisdiction"

Finally discovering what goes too far in 2023

In 2023, two cases were decided at circuit courts showing an amusing fact: the only way for a judge to lose their immunity was if they started acting like a cop.

1. Gibson v. Goldston: On March 4, 2020, the parties were gathered in Judge Goldston's courtroom in WV for a hearing on property distribution as part of a divorce. Gibson's ex-wife had counsel, while Gibson was pro se. At one point, Judge Goldston stopped the hearing and ordered the parties to meet at Gibson's home. Gibson and his girlfriend spent the car ride looking up how to argue that Goldston should disqualify herself, but the judge denied their motion as untimely. When Gibson said they "wouldn't get in his house without a warrant", Goldston responded "Oh yes I will". Realizing she was being recorded saying this, she threatened Gibson and his girlfriend with arrest if they didn't turn off their phones. The events culminated in absurd moments like Judge Goldston sitting in a rocking chair with her shoes off, telling the ex-wife to "go in there and pick the ones you want" from their DVD collection. In the end, the fourth circuit decided this was simply too absurd. As they saw it, "She stepped out of the judicial role in a variety of ways, which made plain in combination that she was engaged in an extrajudicial function".
2. Rockett v. Eighmy: In a contentious child custody case, the family was stuck between wanting to live in Hollywood to support their kids aspirations' of becoming actors and various other rocky tradeoffs. While custody cases were pending in California, the mother filed a separate petition in Missouri, which caused the family to fly out to Missouri for a hearing. At that time, an agreement was reached where the kids would live with their mother for a month, then move back out to LA with their father. The kids were not happy with this, and a confrontation ensued in the lobby. Judge Eighmy, no longer in his robes, intervened and took the kids to a conference room, where he told them they needed to leave Hollywood to grow up "normal", and when they still protested he personally arrested them and threw them in jail for an hour to show "what he can do". After an hour in jail and a threat of foster care they agreed to comply. Even more absurdity ensued after this, but the act of physically acting as jailor meant that the judge was not acting in his judicial capacity, and the eighth circuit had no problem denying absolute immunity. Had he instead relied on a bailiff, this case quite likely would have come out differently.

Judicial immunity is a messy doctrine. We certainly don't want to go back to unhappy petitioners demanding trial by combat from a judge when they lose their case. Still, I can't help but feel a bit uncomfortable contrasting the treatment of judges, legislators, and police officers. For the more gentlemanly professions, the court is happy to preserve absolute immunity, even in somewhat absurd cases. The blue collar police officers receive qualified immunity, another atextual protection, albeit a much weaker one.

In the end it harkens back to the language from Pierson: is this really "for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences"? It's hard to evaluate the downstream implications of the counterfactual world, but it doesn't seem that allowing judges to issue ex parte sterilization orders without any statutory authority has benefited the public. I'm glad courts have found some points at which the judge's conduct becomes too extreme.

TL;DR: The details of Pitchford v. Cain bear a striking resemblance to issues Kavanaugh saw in his 1989 law review note on Batson challenges

Pitchford's trial and Batson challenges

Terry Pitchford, a black man, was tried for the 2004 capital murder of Reuben Britt, a store owner, in Mississippi. He planned the robbery, supplied the guns, and fired ratshot from his gun at one point (though his target was disputed). While his 16 year old accomplice fired the fatal shots, the jury concluded that Pitchford "actually killed", "attempted to kill", and "contemplated that lethal force would be employed", leading to a death penalty sentence.

However, the jury selection was a bit of a mess. The prosecution was led by Doug Evans, an elected DA who was famous for prosecuting Curtis Flowers six times and using peremp­to­ry strikes on blacks at near­ly 4½ times the rate of whites. In this case, Evans struck 4 out of 5 potential black jurors, leading to a jury with 11 white / 1 black members.

Naturally, this led to a Batson challenge from Pitchford's lawyer. A Batson challenge has three steps:

1. A defendant makes a prima facie showing that prosecutors have struck prospective jurors "on the basis of race" -- usually this is statistical (e.g. striking 4/5 black jurors)
2. The prosecution must offer a race-neutral basis for each strike -- in this case, things like one juror returning 15 minutes late, two with brothers who had violent convictions.
3. The defendant can try to rebut the prosecution’s race-neutral reasons as "pretextual", and ultimately the court must determine whether the prosecution’s strikes were in fact based on race.

The problem here arose between steps two and three. After the prosecutor offered race neutral reasons (step 2), the judge immediately said "the Court finds that to be race neutral as well" and moved on without any real step 3 arguments or analysis. Pitchford's lawyer raised Batson multiple times after this but was simply told the issue was preserved and to move on.

Kavanaugh's law review note

Now, before we get too deep into the court's opinion, let's rewind to Kavanaugh's 1989 law review note: "Defense Presence and Participation: A Procedural Minimum for Batson v. Kentucky Hearings". As you can probably tell from the title -- he has a lot of thoughts on this topic. At the time of publication, courts were still figuring out how Batson should work on a procedural level. Should their be a hearing, a separate review, something else entirely?

The summary Kavanaugh provides of his argument for a minimum requirement is extremely relevant to Pitchford: "This note argues, first, that the defense must be present to hear the prosecutor articulate his 'neutral explanation', and, second, that the defense should have an opportunity to rebut the prosecutor's reasons before the trial judge decides whether to allow the prosecutor's peremptories"

Kavanaugh goes into detail on this in section IV of the note, arguing specifically that:

>A court may not simply ensure that an adequate number of blacks remain on the petit jury; rather, the judge must look into the circumstances of each peremptory challenge. Because Batson mandates this difficult inquiry into purpose, the role of the trial judge is better suited to allowing the defense to rebut the prosecution before the judge decides whether to allow a particular peremptory challenge than it is to acting as the sole questioner of the prosecution, as must occur when the judge is without the aid of the defense.

The opinion in Pitchford v. Cain

OK, now back to Pitchford -- check out what Kavanaugh's majority opinion has to say:

>The Mississippi trial court erroneously omitted Batson’s third step: In particular, the trial court did not afford Pitchford’s counsel a sufficient opportunity to rebut the prosecutor’s proffered race-neutral reasons for striking the four black jurors and never determined whether the prosecutor’s stated reasons were pretextual. And as the U. S. District Court further stated, the Mississippi Supreme Court’s conclusion that Pitchford waived his opportunity to rebut the prosecutor’s proffered race-neutral reasons was unreasonable.

>[...]After a prosecutor asserts race-neutral reasons for a peremptory strike, the defense counsel must at least have an opportunity to argue that the asserted race-neutral reasons were not the actual reasons—that is, the reasons were pretextual. In other words, as the U. S. District Court later explained on habeas review, the trial court “full-stop ended its Batson analysis” at step two and never proceeded to step three.

Hey, that sounds familiar, doesn't it? Kavanaugh argues this is just straightforward application of Miller-El, Snyder, and Flowers, but I don't think any of them were this explicit about defense involvement. Now though, a suggestion from Kavanaugh's law review article is now cleanly enshrined as SCOTUS precedent!

Now, this was a 5-4 case with Gorsuch dissenting joined by Barrett, Alito, and Thomas. In their view, AEDPA's strong restrictions on federal habeas claims should block Pitchford's arguments here. They faulted the lawyer for not raising arguments about pretext, generally allowing the MS court's interpretation of the "preserved argument" to refer only to the step one claim, not a step three claim. In the end, they summarize their dissent by saying:

>In short, I respectfully dissent because, as I see it, the Court’s opinion errs on the law and the factual record alike. But if the Court’s decision is mistaken, at least its impact is limited. Precisely because so many of our AEDPA precedents go unmentioned, I do not read today’s decision as calling any of them into question. Notably, too, the Court issues a narrow judgment, holding only that Mr. Pitchford did not waive a step three Batson argument without dictating what further proceedings may be appropriate on remand consistent with §2254.

What do we make of all this? Personally, I think the dissent has a stronger AEDPA argument, but I think Kavanaugh has a stronger Batson argument. Reasonable parties can credibly argue that we're seeing Kavanaugh flexing a bit on AEDPA in order to establish something he has strong opinions on, resulting in this somewhat unusual court lineup. Either way -- an interesting case!

Facts of the case

Mirsad Ramic is a Bosnian refugee who became a naturalized US citizen living in Kentucky. During his naturalization ceremony, he refused to recite the oath of allegiance to the United States and instead "proclaimed an Islamic oath and cursed all nonbelievers".

After his naturalization, he attempted to travel abroad to join jihadist groups, eventually traveling to Syria to join ISIS. There, he completed military training, fought in the siege of Kobane, and praised beheadings / threats against Americans online. Eventually, he felt ISIS was too moderate and fled to Turkey, where he was arrested and held in custody for five years for supporting terrorism and then turned him over to the US.

District court sentencing

A jury convicted him of providing material support to ISIS and receiving military training from a foreign terrorist organization. The advisory Guidelines range was 360–600 months.

However, the district court reasoned that Ramic had not committed terrorism in the "common sense" since he had not personally carried out bombings or mass shootings against civilians. The court instead characterized him as a "fighter" or "soldier" who joined an army seeking to create its own state. The court also relied on national sentencing statistics showing a median terrorism sentence of 168 months, then reduced that figure further to account for the time Ramic had already spent in Turkish custody.

Ramic and the US both appealed to the sixth circuit.

Argument #1: Assad's government wasn't recognized by the US (rejected)

Ramic argued that the terrorism enhancement should not apply because ISIS fought against the Assad regime, which the US hadn't recognized as the legitimate "government" of Syria. The Sixth Circuit rejected this, holding that the ordinary meaning of "government" in the statute is not limited to regimes formally recognized by the President. Even ignoring Syria, the enhancement would have applied anyway because Ramic intended to influence or affect the United States itself, as seen in his own statements.

Ramic's other argument that applying the enhancement would implicitly recognize Assad's government as the legitimate government of Syria also failed, but I gotta be honest I give him points for creativity for trying that one.

Argument #2: the court minimized Ramic / ISIS actions (accepted)

The Sixth Circuit held that the district court fundamentally understated the seriousness of both ISIS and Ramic’s conduct. The panel criticized the district court for repeatedly describing Ramic as a "fighter" and ignoring evidence showing Ramic enthusiastically embraced ISIS ideology (e.g. supporting beheadings and bragging about owning 'slave girls'). Beyond his beliefs, Ramic literally participated in the siege of Kobane, and even if he didn't gun down civilians himself his contributions caused death and suffering in support of ISIS mission. At sentencing, Ramic made it clear he felt this was a "sham prosecution" and demonstrated no remorse at all.

Argument #3: the court improperly relied on statistics (accepted)

The Sixth Circuit also held that the district court placed excessive weight on generalized national sentencing statistics. The district court relied on a median terrorism sentence derived from 9 defendants without meaningful analysis of whether they were comparable -- many defendants who engaged in less serious conduct (e.g. unsuccessfully attempting to join ISIS, sending money) received substantially longer sentences than Ramic had.

The panel's final thoughts

The panel remanded the case for resentencing, ending with an interesting note:

>These concerns about Ramic returning to terrorism upon his release aren’t merely hypothetical. Courts’ refusals to incapacitate terrorists for a long period of time have had deadly consequences. See, e.g., Vienna Reels From a Rare Terrorist Attack (describing a terrorist who was sentenced to just 22 months in prison for traveling to join ISIS, was released after one year, and then launched an attack in Vienna that killed four people and wounded another 23); Old Dominion Shooting Suspect Had ISIS Conviction, Was Subdued by Students (describing a terrorist who provided material support to ISIS, received a sentence far below the Guidelines range, was released, and then opened fire in a university classroom, killing the instructor and wounding two others). The district court here repeated that mistake and didn’t reckon with the very real possibility that Ramic could participate in future attacks after his release. When sentencing terrorists, protecting the public is of primary importance. The district court’s failure to properly weigh this factor when dealing with Ramic makes his sentence substantively unreasonable

From the introduction:

>This article addresses the transformation of the Supreme Court’s shadow docket – both in name and in substance. The Supreme Court’s non-merits orders have gone from being a subject of general obscurity to a highly salient one, coupled with a rise in the number of decisions (and applications) about whether to grant a time-sensitive stay or injunction. And the Court’s handling of these cases has raised many questions about both the law and the principles of discretion that should govern them.

>I first briefly explain the nomenclature controversy and explain why I believe “interim docket” is the best term to use now. I then describe two features that once governed such interim relief and may be at risk of being forgotten. One is the legal principle that interim relief is supposed to be ancillary to the Court’s ultimate jurisdiction over the merits. The other is the principle that the Court does not engage in routine error correction. 

See also the original "The Supreme Court's Shadow Docket" paper for context

Application, docket. From the application:

>Days before Virginia’s deadline to begin administering the 2026 election for members of the United States House of Representatives, the Supreme Court of Virginia invalidated an amendment to the Commonwealth’s Constitution that authorizes the General Assembly to adopt new congressional maps. The Court purported to find a procedural flaw in the amendment’s passage and ratification: that the General Assembly failed to pass the amendment prior to the “next general election” before passing it a second time and referring the amendment to the people for their approval. The basis for that holding was the Court’s view that, contrary to the Constitution’s own definition of the term “election” to refer to a single day in November, the term instead encompasses the entire period of early voting beginning in September. Based on that novel and manifestly atextual interpretation, the Court overrode the will of the people who ratified the amendment by ordering the Commonwealth to conduct its election with the congressional districts that the people rejected

>A stay is warranted because the decision by the Supreme Court of Virginia is deeply mistaken on two critical issues of federal law with profound practical importance to the Nation. The decision below violates federal law in two separate ways. First, it predicated its interpretation of the Virginia Constitution on a grave misreading of federal law, which expressly fixes a single day for the “election” of Representatives and Delegates to Congress. See 2 U.S.C. § 7. Where a state court’s decision on purportedly state-law grounds was “interwoven with the federal law,” this Court may intervene to ensure that the state court’s decision complies with federal law. Michigan v. Long, 463 U.S. 1032, 1040 (1983). See also Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold Eng’g, P.C., 467 U.S. 138, 153 (1984) (vacating state supreme court decision whose interpretation of state statute “rest[ed] on a misconception of federal law”). Second, by rejecting the plain text of the Virginia Constitution’s definition of the term “election” to adopt its own contrary meaning, the Supreme Court of Virginia “transgressed the ordinary bounds of judicial review such that it arrogated to itself the power vested in the state legislature to regulate federal elections.” Moore v. Harper, 600 U.S. 1, 36 (2023) (cleaned up). Either violation is sufficient for this Court to reverse the decision below. Accordingly, there is a “reasonable probability that this Court will grant certiorari and will then reverse the decision below.” Maryland v. King, 567 U.S. 1301, 1302 (2012) (Roberts, C.J., in chambers) (cleaned up).