Lone Candle
Champion of Truth
“Control of the Wisconsin state Supreme Court is on the ballot this spring, and the contest could decide the fate of abortion rights, redistricting and more in the critical swing state.
Should a more liberal-leaning jurist win the job in the April election, it would flip the balance of the state’s highest court for at least two years.”
“Trent Taylor says his cell, in a Texas psychiatric unit operated by the state’s prison system, was covered in human excrement. Feces smeared the window and streaked the ceiling. Someone had painted a shit swastika on the wall, alongside a smiley face. According to Taylor’s allegations in a federal lawsuit, there was such a thick layer of dried human dung on the floor of the cell that it made a crunching sound as he walked naked across the cell.
Taylor alleged that he was kept in this cell for four days, where he neither ate nor drank due to fears that the excrement, which was even packed inside the cell’s water faucet, would contaminate anything he consumed. Then, on the fifth day, he was moved to a bare, frigid cell with no toilet, water fountain, or bed. A clogged drain filled the new cell with choking ammonia films. With nowhere to relieve himself, Taylor held his urine for 24 hours before he could do so no longer. And then he had to sleep alone on the floor while covered in his own waste.
The Supreme Court eventually ruled 7–1 that Taylor’s lawsuit against the corrections officers who forced him to live in these conditions could move forward, and that lawsuit settled last February. But the Supreme Court had to intervene after an even more conservative court, the United States Court of Appeals for the Fifth Circuit, attempted to shut down these claims against the prison guards.
A unanimous panel of three Fifth Circuit judges held that it was unclear whether the Constitution prevents prisoners from being forced to remain in “extremely dirty cells for only six days” — although, in what counts as an act of mercy in the Fifth Circuit, the panel did concede that “prisoners couldn’t be housed in cells teeming with human waste for months on end.”
This decision, in Taylor v. Stevens, is hardly aberrant behavior by the Fifth Circuit, which oversees federal litigation arising out of Texas, Louisiana, and Mississippi. The Fifth Circuit’s Taylor decision stands out for its casual cruelty, but its disregard for law, precedent, logic, and basic human decency is ordinary behavior in this court.
Dominated by partisans and ideologues — a dozen of the court’s 17 active judgeships are held by Republican appointees, half of whom are Trump judges — the Fifth Circuit is where law goes to die. And, because the Fifth Circuit oversees federal litigation arising out of Texas, whose federal trial courts have become a pipeline for far-right legal decisions, the Fifth Circuit’s judges frequently create havoc with national consequences.
The Fifth Circuit has, in recent months, declared an entire federal agency unconstitutional and stripped another of its authority to enforce federal laws protecting investors from fraud. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. Less than a year ago, the Fifth Circuit forced the Navy to deploy sailors who defied an order to take the Covid vaccine, despite the Navy’s warning that a sick service member could sideline an entire vessel or force the military to conduct a dangerous mission to extract a Navy SEAL with Covid.
As Justice Brett Kavanaugh wrote when the Supreme Court restored the military’s command over its own personnel, the Fifth Circuit’s approach wrongly inserted the courts “into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
And this is just a small sample of the decisions the Fifth Circuit has handed down in 2022.”
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“while the Fifth Circuit is so extreme that its decisions are often reversed even by the Supreme Court’s current, very conservative majority, its devil-may-care approach to the law can throw much of the government into chaos, and even destabilize our relations with foreign nations, before a higher authority steps in. Worse, the Fifth Circuit’s antics could very well be a harbinger for what the entire federal judiciary will become if Republicans get to replace more justices.”
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“the Supreme Court only hears a tiny percentage of the cases decided by federal appeals courts, and it almost never hears cases brought by extraordinarily vulnerable litigants like Trent Taylor. Indeed, it hears these cases so infrequently that, when the Court decided to intervene on Taylor’s behalf, Justice Samuel Alito wrote a brief opinion complaining that Taylor’s case “which turns entirely on an interpretation of the record in one particular case, is a quintessential example of the kind that we almost never review.”
The Fifth Circuit hears a steady diet of ordinary immigration cases, which will often decide whether an individual immigrant can remain with their family in the United States or whether they must be deported to a nation they may barely know, or where they may fear for their physical safety. These cases are now heard by judges like Andrew Oldham, Trump’s sixth appointment to the Fifth Circuit, who spent much of his time both on and off the bench seeking to make federal immigration policies harsher to immigrants.
Similarly, the court hears a steady diet of employment discrimination cases.”
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“there are reforms that Congress or the Supreme Court could implement, which would diminish both the Fifth Circuit’s power and the power of litigants to channel political lawsuits to highly ideological judges. Congress, for example, may strip the Fifth Circuit of its jurisdiction over certain cases, or require certain suits to be filed in a federal court that is not located in the Fifth Circuit. It could also add seats to the court, which would then be filled by President Biden.
A less radical reform, proposed by former Fifth Circuit Judge Gregg Costa, would prevent litigants like the Texas AG’s office from handpicking judges who are likely to rule in their favor — and whose decisions are equally likely to be affirmed by the Fifth Circuit. Costa proposed having all lawsuits seeking a nationwide injunction against a federal law or policy be heard by three-judge panels, rather than a single judge chosen by the plaintiff. These panels’ decisions would then appeal directly to the Supreme Court, bypassing the Fifth Circuit (although a single Fifth Circuit judge might sit on some of these panels).
Realistically, however, systemic reforms to the problem of judge-shopping — and to the problem of a lawless court of appeals — are unlikely to happen anytime soon. The House of Representatives will soon be controlled by Republicans, who are unlikely to support legislation that reduces the power of their partisan allies on the bench. And the Supreme Court has six justices appointed by Republican presidents.
And so the Fifth Circuit will continue to hand down its decrees, confident that no one with the power to stop them is likely to do so.”
“The Teamsters, the union in this case, allegedly timed a 2017 strike so that it would begin after some of Glacier Northwest’s mixing trucks were already filled with concrete, forcing the company’s non-union employees to race to dispose of this material before it hardened in the trucks. But the company was able to remove this wet concrete from the trucks before they were damaged, and there are a wealth of cases establishing that workers may strike even if doing so will cause some of their employer’s product to spoil.
In one case, for example, the National Labor Relations Board (NLRB) — a kind of quasi-court that hears disputes between unions and employers — sided with milk truck drivers who struck, even though their strike risked spoiling the milk before it was delivered to customers. Another case, handed down by a federal appeals court, reached a similar conclusion regarding striking cheese workers.
That said, there are also some cases establishing that workers may not walk off the job at a time that could result in truly egregious damage to their employer’s business. In one such case, for example, a federal appeals court ruled that foundry workers who work with molten lead could not abruptly walk off the job and leave the lead in a state where it could melt the employer’s facilities or injure other workers.
In any event, the Supreme Court’s decision in San Diego Trades Council v. Garmon (1959) lays out the process that employers must use if they believe their workers timed a strike so recklessly that the union should be held liable. In nearly all cases, the employer must first obtain a ruling from the NLRB establishing that their workers’ strike was not protected by federal law. Only then may they file a lawsuit against the union.
The employer in Glacier Northwest, however, wants the Supreme Court to water down Garmon considerably, potentially enough to render that decision toothless.
If that happens, it would be a tremendous blow to workers. One important reason the Garmon process exists is that it shields unions from lawsuits that could drain their finances and discourage workers from exercising their right to strike — after all, that right means very little if well-moneyed employers can bombard unions with lawsuits the union cannot afford to litigate.”
“Gorsuch didn’t say that there aren’t problems at the border or that the transition from Title 42 wouldn’t prove challenging. “But the current border crisis is not a COVID crisis,” he wrote. “And courts should not be in the business of perpetuating administrative edicts designed for one emergency only because elected officials have failed to address a different emergency. We are a court of law, not policymakers of last resort.”
Policy makers would be wise to scrap the pandemic-era Title 42 order. It’s accomplished the opposite of what proponents promised, leading to more frequent and less predictable migrant inflows. Since a Title 42 expulsion carries no reentry penalty, repeat crossings roughly quadrupled in 2021 compared to their 2019 rate. Smugglers have taken advantage of repeat crossings by charging migrants more for the inflated number of northward journeys. With asylum largely inaccessible at ports of entry, migrants desperate to enter the country have attempted to cross the border in less surveilled, more dangerous terrain. These things have all contributed to chaotic scenes at the border, providing fodder for immigration restrictionists.”
“This is not a new argument, and numerous courts have rejected similar challenges to publicly funded family planning programs, in part because the Deanda plaintiff’s legal argument “would undermine the minor’s right to privacy” which the Supreme Court has long held to include a right to contraception.
But Kacsmaryk isn’t like most other judges. In his brief time on the bench — Trump appointed Kacsmaryk in 2019 — he has shown an extraordinary willingness to interpret the law creatively to benefit right-wing causes.
This behavior is enabled, moreover, by the procedural rules that frequently enable federal plaintiffs in Texas to choose which judge will hear their case — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk. So litigants who want their case to be decided by a judge with a history as a Christian right activist, with a demonstrated penchant for interpreting the law flexibly to benefit his ideological allies, can all but ensure that outcome by bringing their lawsuit in Amarillo.”
“The editors and publishers of The New York Times and several major European media outlets have released an open letter condemning America’s prosecution of WikiLeaks founder Julian Assange.
Assange faces 19 federal charges of espionage and hacking for his alleged role in helping Chelsea Manning get access to classified military reports from the Iraq and Afghan wars. Those charges were filed in 2019, but a superseding indictment from the Justice Department filed in June 2020 added more details and accusations (but not new charges), claiming Assange recruited hackers and directed them to targets. The Department of Justice’s position is that Assange is a hacker, not a journalist.”
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“Leaders at The New York Times and The Washington Post have long opposed Assange’s indictment for the potential chilling effect. If Assange can be imprisoned for publishing classified documents, then couldn’t the editors of the Times or the Post or any other media outlet who also published these documents face the same fate?
In order to get around these First Amendment concerns, the justification for Assange’s prosecution is that he doesn’t qualify as a journalist. He is not a “legitimate” journalist. The problem with that argument is that it gives the government the authority to define who does and does not qualify as a journalist, which itself would seem like a violation of the First Amendment’s protections. There is no “legitimacy” distinction in the First Amendment. Journalism is an activity, not just a career. Many, many people have engaged in various forms of journalistic activities without being credentialed reporters for media outlets.”
“The erroneous idea comes from the 1919 case Schenk v. United States. The case concerned whether distributing anti-draft pamphlets could lead to a conviction under the Espionage Act—and had nothing to do with fires or theaters.
In his opinion, Justice Oliver Wendell Holmes wrote that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” However, this idea was introduced as an analogy, meant to illustrate that, as Trevor Timm wrote in The Atlantic in 2012, “the First Amendment is not absolute. It is what lawyers call dictum, a justice’s ancillary opinion that doesn’t directly involve the facts of the case and has no binding authority.” The phrase, though an oft-repeated axiom in debates about the First Amendment, is simply not the law of the land now, nor has it ever been—something made all the more apparent when Schenk v. United States was largely overturned in 1969 by Brandenburg v. Ohio.
“Anyone who says ‘you can’t shout fire! in a crowded theatre’ is showing that they don’t know much about the principles of free speech, or free speech law—or history,” Foundation for Individual Rights and Expression President Greg Lukianoff wrote in 2021. “This old canard, a favorite reference of censorship apologists, needs to be retired. It’s repeatedly and inappropriately used to justify speech limitations.””
“At the core of Villarreal’s misfortune is a Texas law that allows the state to prosecute someone who obtains nonpublic information from a government official if he or she does so “with intent to obtain a benefit.” Villarreal operates her popular news-sharing operation on Facebook, where her page, Lagordiloca News, has amassed 200,000 followers as of this writing.
So to jail Villarreal, police alleged that she ran afoul of that law when she retrieved information from Laredo Police Department Officer Barbara Goodman and proceeded to publish those two aforementioned stories, because she potentially benefited by gaining more Facebook followers. Missing from that analysis is that every journalist, reporter, or media pundit has an “intent to benefit” when she or he publishes a story, whether it is to attract viewers, readers, or subscribers. Soliciting information from government officials—who, as Villarreal’s case exemplifies, sometimes feed reporters information—is called a “scoop,” and it’s not new.
Yet it was an argument that, in some sense, resonated with Judge Priscilla Richman, the chief jurist on the 5th Circuit, who almost certainly voted in favor of reconsidering the court’s ruling. “In fact, Villareal’s [sic] Complaint says that she ‘sometimes enjoys a free meal from appreciative readers, . . . occasionally receives fees for promoting a local business [and] has used her Facebook page [where all of her reporting is published] to ask for donations for new equipment necessary to continue her citizen journalism efforts,” she wrote in August, rebuking Ho’s conclusion. “With great respect, the majority opinion is off base in holding that no reasonably competent officer could objectively have thought that Villareal [sic] obtained information from her back-door source within the Laredo Police Department with an ‘intent to benefit.'”
Such an interpretation would render the media industry an illegal operation, and everyone who participates—whether they be conservative, liberal, far-left, far-right, or anything in-between—criminals. “Other journalists are paid full salaries by their media outlets,” writes Ho. Can confirm. Is that somehow less consequential than receiving free lunch or getting a new spike of followers on a social media platform (which is something that many journalists employed full time also set out to do)? “In sum, it is a crime to be a journalist in Texas, thanks to the dissent’s reading of § 39.06(c),” Ho adds.”