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First Amendment News 282: Covering SCOTUS and more — Lasnik and Liptak in dialogue


Last month the Federal Bar Association for the Western District of Washington hosted an exchange between Judge Robert S. Lasnik and New York Times Supreme Court correspondent Adam Liptak. The exchange was recorded and later posted on YouTube. That exchange (starts at 1:12:08 and ends at 2:02:22) struck me as worthy of more widespread attention. Hence, I transcribed certain portions and have presented them below, replete with topical headings. Of course, the full exchange is the best and most accurate account of the speakers' words and intentions. Moreover, the full exchange also includes other noteworthy topics, including a discussion of the Court's new format for oral arguments, some comments on the role of the Chief Justice as the custodian of the institution of the Court, as well as other comments concerning the Justices' various opinions in the case involving religious challenges to Cuomo’s COVID shutdown order.

Advice from Greenhouse to Liptak

Linda Greenhouse (Yale Law School)

Lasnik: "Did you ever wonder 'is that a really good thing for me to do, to follow in the footsteps of someone like Linda Greenhouse?'"

Liptak: ". . . As we were transitioning she invited me down to sit by her side to cover some arguments, to cover some cases, and gave me one piece of advice that has really served me well. She said: 'When you're reading a decision, always start with the dissent; the dissent will tell you what's really going on.' And that's very good advice. It's often much easier to make sense of what the majority's trying to get away with, in it's kind of placid [way] — 'the law requires us to do x' — and the dissent will point out that's not exactly right."

The Barrett factor 

Lasnik: "Just in the last four years we've had three new [Supreme] Courts. . . . How have you seen the dynamics of the Court change with the addition of the last three Justices?"

Liptak: "It's a little too soon to tell. The switch of Barrett for Ginsburg is, of course, is going to be very, very consequential — maybe as consequential as the switch of Thomas for Marshall. There were only two comparable switches in recent years. The Court was static for about eleven years until Chief Justice Roberts was appointed. But most of the swaps were ideological one-for-one swaps. Alito for O'Connor moved the Court to the right. Kavanaugh for Kennedy moved the Court to the right. It's really the Barrett switch that is most consequential. I mean, losing Justice Kennedy moved the ideological center of the Court to Roberts. And you would have thought that would be a stark move to the right. But the one term in which he was the median Justice, the last term, turned out to be a real mixed bag in terms of liberal and conservative results. But now that the Chief Justice has seemingly been thrust out of the median spot, taken over by Kavanaugh, there does seem to be a solid five, and often six-Justice majority, for conservative results. So, the writing is on the wall. But we haven't seen the results yet, with the one specific exception with the recent ruling on COVID restrictions on religious services, where the Court did change direction as a consequence of the Barrett switch."

Time pressure on the press

Lasnik: "Now, you’re under such pressure to get [a news story] to the website as soon as possible."

Liptak: “When I started, I said, just to show you how wrong I can be, 'I'll tell you one thing: I'm never going to write about a decision before I read it.' Well, those days are gone. . . .

I am now called on, and this is not an exaggeration, in five minutes to file a story that basically is pre-written and just slaps on top of one or two or three leads that I’ve already written. . .”

Thoughts on Kavanaugh & Roberts 

Lasnik: "Do you see hope there that somebody like Justice Kavanaugh can align more with Chief Justice Roberts to keep the Court from breaking into more bitter rancor?

Liptak: " . . . [Justice Kavanaugh] does have an impulse often — and I don't know if this is a bad thing — to kick the can down the road, to find a way not to decide right away. And that combined with the Chief Justice's occasional moderation could chart what these days would pass for a centrist path on the Court. But I think there's nothing in his voting record, really, to suggest that. . . he is anything but a committed conservative on religion, on administrative law — he's Robert's best hope."

Lasnik: "Wouldn't you have said the same thing of John Roberts in 2005, that he was everything you just described Kavanaugh as?"

Adam Liptak
Adam Liptak (Wikicommons)

Liptak: "They have this in common. If you dial it back to before the sexual assault allegations against Justice Kavanaugh, to which he had a very heated reaction. . . . before that his reputation, like the Chief's, was as a superb technical judge. . . . It's a complicated dynamic."

The Court’s 'Shadow Docket'

Liptak: "When cases reach the Court on emergency applications — typically for stays, sometimes for injunctions — [and] on thin briefing that gets done in a matter of days, and is resolved without argument and often [decided] by a one-paragraph order, which contains no reasoning and yet very consequential things happen as a consequence. Often the ruling decides effectively for years, perhaps forever. . . it’s a mess. Such things always happened. . . . But for such huge things to happen on this scale is really a change. And I don’t have the precise numbers, but the Trump S.G.’s office in its single term filed — I’m making this up, but in the order of magnitude I’m right — 28 such emergency applications. Compared to — again I’m making this up — eight, not only over the Obama years but also the George W. Bush years, eight total. So, very different in scale."

[Editor's note: The actual numbers, as compiled by Professor Stephen Vladeck in late October, were that the Trump administration had filed 36 shadow docket applications, compared to eight in the previous two eight-year administrations combined.]

"Now the S.G.’s office will say, 'yes, but we have to deal with nationwide injunctions, imposed by single federal district court judges, and such issues ought to be decided — if they’re gonna be decided nationwide, they should be decided, even if on the shadow docket — by the Supreme Court.’ And I think that argument has some force. But still, the amount of work the Court is doing in this fashion is disturbing. . . . I also think that if the cases are consequential enough and they’re holding arguments by phone anyway — I don’t know why phone arguments shouldn’t be scheduled on this kind of [cases]. . . .

And then finally, and deeply frustrating to the likes of me: the shadow docket orders come out at all hours of the night. The case out of New York came out three minutes before midnight, on the Wednesday night before Thanksgiving. I’m glad I was awake! I filed a story and it was the biggest story on our website for 48 hours."

District judges & nation-wide injunctions 

Lasnik: "Do you have any other questions for me, either a district court judge or just somebody from the 'left' coast?"

Liptak: "Well, I wonder what you think of this critique that in the Trump era, district courts, particularly on the coasts, have done more than resolve particular disputes before them and have issued injunctions that are broader than their jurisdiction might suggest."

Judge Robert Lasnik (Washington Western District Court)

Lasnik: "Yes, that certainly is an interesting issue. Judge [James] Robart was presented with the first travel ban case in Seattle. And we all know that it was partially chosen because we are 'the people's republic of Seattle,' and the judges out here have a reputation for being reasonable and strong, and an appeal would go to the Ninth Circuit, of course. So a lot of cases are filed by the Attorney General of Washington or the Attorney General of California to get those cases started. But I think that just as you have been talking about the shadow docket — a function of a White House that has been using it in an incredibly aggressive way — we have been forced to use nationwide injunctions to deal with executive orders that don't go through the Congress or administrative action that seems to completely ignore the Administrative Procedure Act. And so, I see what district judges have done as a reaction to the aggressive nature of what the Trump administration has tried to do, in so many areas, by bypassing Congress and going directly to executive orders. My case that I had was the 3-D gun case, a printed gun case. There, if you don't issue a national injunction — and you're just keeping it to the Western District of Washington — you're not accomplishing anything. So, especially now with the internet and with borders not being what they once were, I think that what you've seen has been a legitimate reaction. . ."

Liptak: "It does seem like these pillars of our civil society, the judiciary and the free press, were tested during these last years. And I think, on the whole, we came through in pretty good shape."

Access to the Justices 

Lasnik: "Do you ever have Justices just talk to you 'off the record,' not necessarily about a case but about the Court or the tone of the discussions?"

Liptak: "So I can't get particularly specific about that, but the Justices are more accessible than some people might think.”

Judges, party affiliations & COVID restrictions 

Liptak: "May I ask you one more question, sort of pivoting off your last remarks?"

Lasnik: "Please."

Liptak: "The press is sometimes criticized for noting the party affiliations of the appointing President of judges. . . . I have somewhat mixed feelings about routinely noting the appointing president in coverage of the courts. But as you just mentioned, Judge, it did add additional force to the Third Circuit election case. So what's the right thing for a reporter to do?"

Lasnik: "That's a great question. I noticed online that someone did a study of 89 cases where the issue was religious objections to government-imposed limitations through COVID. Of the 89, the Democrat-appointed judges all sustained the restrictions. Of the Republican-appointed judges, 36% affirmed the restrictions. And the Trump-appointed judges [affirmed] only 6%. So you can't ignore that. That's a fact of life."

First Amendment Watch launches Twitter forum

The ever-productive folks over at First Amendment Watch have just launched a digital public forum series:

Starting in January 2021, First Amendment Watch will begin hosting a monthly event on Twitter called #FAWPublicForum. The digital discussion series will be a live Q&A with a First Amendment expert on topics ranging from assembly rights to FOIA requests to misinformation campaigns. Each month, the discussion will address First Amendment topics in a contemporary context.

Our first guest will be Baltimore School of Law Professor Emeritus and author Garrett Epps who will answer questions about contemporary threats to people’s assembly rights on January 5th at 2pm-3pm ET. A columnist for both the Washington Monthly and The Atlantic, Epps is a vocal and frequent critic of the ongoing lawsuit against Black Lives Matter activist DeRay Mckesson, and has denounced vague laws aimed at “unlawful assembly.”

How to participate

Faculty members and students can tweet a question or comment using the hashtag #FAWPublicForum and mention us @FirstAmendWatch; they can also send questions ahead of time to; or they can simply reply to the special guest’s response using the hashtag #FAWPublicForum.

'Racist sexist' defamation case before Nevada high court 

The case is Williams v. Lazer, which is currently before the Nevada Supreme Court. Here are a few excerpts from the brief filed by Marc J. Randazza, counsel for Defendant-Appellant:

The Order of the Court of Appeals affirming the District Court’s denial of Appellant’s Anti-SLAPP Motion is indefensibly wrong. It ignores the Anti-SLAPP statute, this Court’s precedents, and even the primary argument of Williams’s briefing. It does so to give preferential treatment to a white man who brought a frivolous defamation claim against a black woman.

Marc J. Randazza (Randazza Legal Group)

Though it did not say so outright, the Court of Appeals concluded that Williams was lying when she said that she subjectively believed Lazer was racist, sexist, unprofessional, and unethical. To reach this point, the court misrepresented the record, selectively quoted Williams to tell her what she actually meant to say, dismissed her lived experience of what she believed was racist and sexist behavior and imputed to her full technical knowledge of NRED regulations. The Court of Appeals is so wrong on every point of law and fact that this Court must correct the lower court’s mistakes and clarify that no, Nevada’s Anti-SLAPP jurisprudence did not make an abrupt 180-degree turn.

NRAP 40B(a) provides that “[a] party aggrieved by a decision of the Court of Appeals may file a petition for review with the clerk of the Supreme Court.” In exercising its discretion to review a Court of Appeals decision, the Supreme Court may consider “(2) Whether the decision of the Court of Appeals conflicts with a prior decision of the Court of Appeals, the Supreme Court, or the United States Supreme Court; or (3) Whether the case involves fundamental issues of statewide public importance.” Id.

The Order of the Court of Appeals conflicts with several decisions of this Court and the U.S. Supreme Court regarding the “good faith” requirement of the first prong of the Nevada Anti-SLAPP statute’s analysis, whether a statement is one of fact or opinion, and what defenses may be considered in deciding an Anti-SLAPP motion. This case also involves fundamental issues of statewide public importance, namely the limits of Nevada’s absolute litigation privilege and when defendants may rely on the protections of Nevada’s Anti-SLAPP statute. The importance of these issues is heightened by the numerous fundamental errors made by the Court of Appeals.

Amicus briefs

  • ACLU of Nevada in support of Defendant-Appellant, filed by Arianna Demas
  • First Amendment Lawyers Association in support of granting review and reversal, filed by Clyde Dewitt

New scholarly articles

In the news

2020-2021 SCOTUS term: Free expression & related cases

Cases decided 

  • Mckesson v. Doe (per curium, 7-1 with Thomas, J., dissenting) (judgment vacated and remanded to 5th Cir.)

Cases argued

Cert. granted

Pending petitions

Cert. denied

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