Textualism and the Eighth Amendment – Judge Thomas M. Hardiman

Posted by on Apr 2, 2024 in Obiter Dicta, Per Curiam

Textualism and the Eighth Amendment – Judge Thomas M. Hardiman
Download PDF

Textualism and the Eighth Amendment

Judge Thomas M. Hardiman*

Thank you for the generous invitation to be part of the Laurence Silberman Distinguished Judicial Lecture Series. Judge Silberman was my administrative law professor at Georgetown over thirty years ago. Unfortunately, at that time I had neither an appreciation for the value of judicial clerkships nor an understanding of the privilege of being taught by one of the lions of the D.C. Circuit. I’m sorry that Judge Silberman isn’t with us to comment on my remarks—no doubt he would have had opinions to offer.

My topic today is textualism and the Eighth Amendment. In 2015 Justice Elena Kagan returned to Harvard Law School to give the Antonin Scalia Lecture. While engaging with now-Dean John Manning about interpreting statutes and Justice Scalia’s profound influence on that task, Justice Kagan quipped: “We’re all textualists now.”[1] Supreme Court decisions since have tracked that observation.

For example, in Kennedy v. Bremerton School District[2] the Court put the nail in the coffin of the Lemon test, which Justice Scalia had likened to “some ghoul in a late-night horror movie.”[3] In abrogating that three-part test, the Court returned to the text, history, and tradition of the First Amendment’s Establishment Clause. So too with the Second Amendment. In New York State Rifle & Pistol Association v. Bruen, the Court rejected the two-step approach that had been applied by many lower courts, including our own Third Circuit.[4] Writing for the Court, Justice Thomas concluded that the first step of the lower court test—whether the “challenged law regulates activity falling outside the scope of the right as originally understood”[5]—was consistent with Heller’s emphasis on the text of the Second Amendment “as informed by history.”[6] But the second step—means-end scrutiny—was “one step too many.”[7]

As with these constitutional decisions, the Supreme Court has focused on text in statutory interpretation cases. Take two recent decisions. In Niz-Chavez v. Garland, the Court decided an important immigration case arising under Title 8.[8] The case involved a notice to appear in immigration court and the decision turned on the word “a.” Writing for the Court, Justice Gorsuch held that the notice had to be in a single document, “not a mishmash of pieces with some assembly required.”[9] Justice Kavanaugh, joined by the Chief Justice and Justice Alito, dissented because he thought the majority was too literal.[10]

Six weeks later, the Court decided a case that turned on the word “so” in the Computer Fraud and Abuse Act.[11] In Van Buren v. United States, a police officer was convicted of violating the Act when he ran a license-plate search on a law enforcement database in exchange for money.[12] Everyone agreed that Van Buren violated policy by obtaining the information for an illicit purpose. But the Court held that Van Buren did not “access to obtain or alter information in the computer that [he] is not entitled so to obtain or alter.”[13] Justice Thomas read the text differently and his dissent was joined by the Chief Justice and Justice Alito.[14]

Some scholars have viewed these opinions as hyper-literal.[15] Regardless of whether that criticism is apt, these cases show how seriously today’s Supreme Court engages with the text of the law at issue.

The Court’s reliance on textualism and originalism in recent years is hard to square with its Eighth Amendment jurisprudence. As my colleague and then-Chief Judge Brooks Smith wrote for the en banc Third Circuit two years ago: “the Supreme Court’s Eighth Amendment jurisprudence has abjured constitutional interpretation in favor of challenges based on Court-created prophylactic rules.”[16]

The Supreme Court’s 2012 decision in Miller v. Alabama illustrates Judge Smith’s point. In that case, the Court held unconstitutional mandatory life sentences without the possibility of parole for juvenile offenders.[17] In doing so, the Court applied “the evolving standards of decency that mark the progress of a maturing society.”[18] That test has two serious problems: its provenance is illegitimate, and its application empowers judges to exercise unbounded discretion.

The “evolving standards of decency” first appeared in Trop v. Dulles, a 1958 decision offering an especially weak justification for the Court to abandon the Eighth Amendment’s text.[19] A careful examination of Trop shows that “the evolving standards of decency” test is “bad wine of recent vintage.”[20]

In 1944, American Private Albert Trop escaped from the stockade while deployed abroad, but the United States Army quickly captured him.[21] A court martial convicted Trop of desertion, dishonorably discharged him, and sentenced him to three years’ hard labor and salary forfeiture. Eight years later, Trop was denied a United States passport because, by statute, desertion forfeited his citizenship.[22]

Trop sued, and the district court entered judgment against him.[23] The Second Circuit, with Judge Learned Hand writing, affirmed the district court. Chief Judge Clark dissented, contending that Trop’s Eighth Amendment right to be free from cruel and unusual punishment was violated.[24] In the majority opinion, Judge Hand explicitly refused to address the Eighth Amendment argument because it had not been raised at oral argument or in the proceedings below.[25] According to Judge Hand, the closest Trop came to arguing the point was a passing reference that expatriation violates due process.[26]

Chief Judge Clark’s dissent was just two paragraphs. In lieu of judicial reasoning, he “merely incorporate[d] by reference” an unsigned student law review comment because he “doubt[ed] if [he] c[ould] add to the persuasive arguments there made.”[27] The comment argued that expatriation constituted cruel and unusual punishment, and Chief Judge Clark apparently found the argument so persuasive that a mere citation sufficed to justify his dissent.[28]

Trop appealed. In a 4-1-4 decision, the Supreme Court reversed the Second Circuit.[29] Writing for the plurality, Chief Justice Earl Warren began by referencing a companion case, Perez v. Brownell,[30] and stated that the principles espoused there essentially decided Trop.[31] The Chief Justice explained that the national government lacks the power to deprive Americans of citizenship involuntarily, though citizens may expatriate themselves voluntarily.[32] After just three paragraphs, Chief Justice Warren concluded: “On this ground alone the judgment in this case should be reversed.”[33] Though that was enough to decide the case, he did not end his opinion there. Instead, he turned to the unrelated Eighth Amendment question. In doing so, Chief Justice Warren waxed historical: “The Court recognized in [Weems v. United States, 217 U.S. 349 (1910)] that the words of the Amendment are not precise, and that their scope is not static. The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[34] With this dictum—involving an issue the Second Circuit explicitly refused to address and that was unnecessary to the decision in Trop—the Supreme Court planted a seed that has sprouted into controlling Eighth Amendment law some sixty-five years later.

The “evolving standards of decency” became the law of the land against substantial odds. The phrase went unmentioned in the Supreme Court for ten years after Trop, until it surfaced in a footnote in a death-penalty case.[35] And it was then quoted only in passing in seven death-penalty cases in the 1970s.[36]

Nearly two decades after its introduction in Trop, the phrase was mentioned for the first time in a non-capital case, Estelle v. Gamble.[37] There, Gamble claimed the prison failed to provide him adequate medical care in violation of the Eighth Amendment.[38] The district court dismissed the case for failure to state a claim, but the Fifth Circuit reversed.[39] The Supreme Court reversed the Fifth Circuit and ruled against Gamble on the facts as pleaded.[40] Yet Justice Thurgood Marshall, writing for the Court, discussed the evolving constitutional law in this area and wrote: “we have held repugnant to the Eighth Amendment punishments which are incompatible with ‘the evolving standards of decency that mark the progress of a maturing society.’”[41] With that statement, the Court first established the evolving standards of decency as a constitutional test.

While Justice Marshall accurately quoted Trop, it was not, as he suggested, the Court’s holding. Recall that Chief Justice Warren stated that the Eighth Amendment must “draw its meaning” from the evolving standards of decency; he did not establish a new, “evolving” constitutional test.[42] So the Court in Estelle v. Gamble elevated Trop’s dicta to a constitutional test.

The test lay dormant for years, until it reappeared as a standard bearer for the view that the Constitution’s meaning changes over time. That process began during the 1980s. The test was first mentioned in several dissents in death penalty cases[43] before it appeared in a 1987 majority opinion written by Justice Powell.[44] Two years later, Justice O’Connor’s majority opinion in Penry v. Lynaugh used the standard again, but there the Court held that executing a man with mental disabilities did not violate the Eighth Amendment.[45] Penry was overruled in 2002 in Atkins v. Virginia, which held there was a national consensus against executing the mentally disabled.[46] Writing for the Court in Atkins, Justice Stevens cited Trop and the evolving standards of decency.[47]

In 2005, the Court decided Roper v. Simmons, where a 5-4 decision effectively overruled a 1989 decision (Stanford v. Kentucky), which had rejected the proposition that the Constitution bars capital punishment for juvenile offenders.[48] In Roper, 17-year-old Christopher Simmons said he and his co-conspirators could “get away with” murder because they were minors.[49] The Supreme Court, Justice Kennedy writing, reasoned that Thompson v. Oklahoma’s logic, proscribing the death penalty for those younger than 16, applied with equal force to those under 18.[50] Justice Kennedy also noted that the United States was the only country that permitted juvenile executions.[51] Justice Stevens (joined by Justice Ginsburg) concurred, venturing that our Constitution changes sometimes.[52]

Justice O’Connor dissented. As did Justice Scalia, who was joined by Chief Justice Rehnquist and Justice Thomas. Significant for our purposes, Justice O’Connor accepted the premise that the Eighth Amendment is not static and must draw its meaning from the evolving standards of decency.[53] Justice Scalia rejected that premise. Instead, he cited Federalist 78, where Hamilton insisted that the judiciary, bound by “strict rules and precedents,” “ha[s] neither FORCE nor WILL but merely judgment.”[54] Justice Scalia then wrote, in his typically understated way: “What a mockery today’s opinion makes of Hamilton’s expectation, announcing the Court’s conclusion that the meaning of our Constitution has changed over the past 15 years—not, mind you, that this Court’s decision 15 years ago was wrong, but that the Constitution has changed.”[55]

With this evolving understanding in mind, the Court applied the test in earnest. In 2008, in a 5-4 decision, the Court decided Kennedy v. Louisiana, which held unconstitutional a Louisiana statute that provided for the death penalty for a defendant who rapes a child when the crime neither resulted in, nor was intended to, result in death.[56] Writing for the Court, Justice Kennedy started with the proportionality principle mentioned by the Court in its 1910 decision in Weems.[57] He then cited Trop for the proposition that the Eighth Amendment draws meaning from the evolving standards of decency and noted that social standards embody variable moral judgments.[58]

In 2010, the Court held unconstitutional a life-without-parole sentence for a man who committed armed burglary five weeks before his eighteenth birthday.[59] Justice Kennedy began his legal analysis by quoting Trop’s evolving standards of decency.[60]

In 2012, the Court issued yet another 5-4 opinion, this time with Justice Kagan writing. In Miller v. Alabama, the Court held that mandatory life sentences without the possibility of parole violated the Eighth Amendment rights of two 14-year-old offenders whom the states had tried as adults and convicted of murder.[61] Justice Kagan began her legal analysis by quoting Trop, and she reiterated the primacy of the evolving standards of decency that mark the progress of a maturing society.[62] She reasoned that the case “implicate[d] two strands of precedent” about “proportionate punishment.”[63] The confluence of those two lines suggested that mandatory life without the possibility of parole for juveniles violated the Eighth Amendment.[64] But she concluded that the Court’s decision mandated only a certain process (i.e., consider the offender’s youth) before imposing a particular penalty.[65]

And in 2014, the Court issued another 5-4 Eighth Amendment decision in Hall v. Florida.[66] In his opinion for the Court, Justice Kennedy again began by referencing the evolving standards of decency.[67] The opinion focused on IQ-score social science. Among other considerations, it emphasized that experts recognize the test’s imprecision. Noting that intellectual disability is a condition, not a number, Justice Kennedy wrote that “[a] State that ignores the inherent imprecision of these tests risks executing a person who suffers from intellectual disability.”[68]

Such is the history of the evolving standards of decency test. It is marked by an illegitimate pedigree and the substitution of judicial preferences about penological policy for the will of the People.[69]


The cases just discussed produced vigorous dissents. The three separate dissents in Miller—the case about mandatory life imprisonment without parole for minors—illustrate well the strong disagreements among the justices in this area.

Chief Justice Roberts noted that although the case presented “grave and challenging questions of morality and social policy,” the majority did not characterize life without the possibility of parole for juveniles as “unusual.”[70] He then observed that some 2,500 prisoners were serving life without parole for murders committed before age 18.[71] Noting that it was not unusual for murderers to receive that sentence,[72] the Chief Justice wrote: “[D]ecency is not the same as leniency. A decent society protects the innocent from violence.”[73] And “[t]o say that a sentence may be considered unusual because so many legislatures approve it stands precedent on its head.”[74] He criticized the majority for invalidating laws of “dozens of [state] legislatures and Congress.”[75] The Chief Justice concluded with a warning: “This process has no discernible end point.”[76]

In dissent, Justice Thomas wrote that the lines of precedent that the majority relied on did not adhere to the original understanding of the Cruel and Unusual Punishments Clause.[77] Based on that understanding, the Clause does not have a proportionality principle.[78] Justice Thomas concluded by explaining the Court was trying to shift from “‘merely’ divining the societal consensus of today to shaping the societal consensus of tomorrow.”[79]

Justice Alito also dissented. He quoted Trop’s evolving language and argued that it was problematic from the start.[80] Justice Alito asked: “Is it true that our society is inexorably evolving in the direction of greater and greater decency? Who says so . . . ?”[81] He concluded by stating the Court’s “Eighth Amendment cases are no longer tied to any objective indicia of society’s standards.”[82]

These dissents show how the Court has strayed far from the text and original meaning of the Eighth Amendment. And they also show that the Court has applied the evolving standards of decency inconsistently.[83]

Will the Court return to the text and original public meaning of the Eighth Amendment as it has done with the First and Second Amendments and statutory cases? It’s hard to say. Two years ago, the Court in Jones v. Mississippi held that the Eighth Amendment doesn’t require the sentencing court to find that a minor is permanently incorrigible before imposing a life-without-parole sentence. [84] And the Court did so without mentioning the evolving standards of decency test. Justice Sotomayor filed a dissent, and, perhaps notably, she broke from the traditional practice of dissenting “respectfully.”[85]  Justice Sotomayor lamented that the Court “gut[86] its previous precedents Miller v. Alabama and Montgomery v. Louisiana.[87] Justice Thomas agreed with Justice Sotomayor that the Court effectively overruled past precedent, criticizing the majority for what he called its “strained reading of Montgomery” and its failure to admit that the decision is “irreconcilable with Miller.”[88] But Justice Thomas concurred in the judgment of the Court because he would have rejected Montgomery.[89] Justice Sotomayor responded by opining that Justice Thomas “seek[s] to relitigate old Eighth Amendment battles based on arguments this Court has previously (and often) rejected.”[90] So though Justice Thomas returned to first principles in his concurrence, he stood alone in that regard.

*           *           *

The story of the evolving standards of decency test—from its questionable creation in Trop v. Dulles, through a decade of dormancy, its recurrence in death penalty cases, and its recent transformation into the law of the land—has created more problems than it has solved. Its inscrutable standards require judges to eschew the law as written in favor of their own moral sentiments. The only constant is that more and more laws adopted by the People’s representatives have been nullified. And the People have no practical way to reverse this contrived ratchet.

If the Supreme Court continues to apply “the evolving standards of decency” test, what will be the next stop on this runaway train of elastic constitutionalism? As Chief Justice Roberts cautioned over a decade ago: there is “no discernable end point.”[91]


* Remarks of Judge Hardiman for the Laurence Silberman Distinguished Judicial Lecture Series, Harvard Law School, October 18, 2023.

[1] Harvard Law School, The Antonin Scalia Lecture Series: A dialogue with Justice Elena Kagan on the Reading of Statutes (Nov. 25, 2015).

[2] 142 S. Ct. 2407, 2419 (2022).

[3] Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).

[4] 142 S. Ct. 2111, 2126 (2022).

[5] Id. at 2126 (quoting Kanter v. Barr, 919 F.3d 437, 441 (7th Cir. 2019)).

[6] Id. at 2127.

[7] Id.

[8] 141 S. Ct. 1474, 1479 (2021).

[9] Id. at 1480.

[10] Id. at 1491 (Kavanaugh, J., dissenting) (arguing that, although “a good textualist is not a literalist,’” the majority “relie[d] heavily on literal meaning.” (quoting Antonin Scalia, A Matter of Interpretation 24 (1997))).

[11] 18 U.S.C. §1030(e)(6).

[12] 141 S. Ct. 1648, 1653 (2021).

[13] 18 U.S.C. § 1030(e)(6) (emphasis added).

[14] Van Buren, 141 S. Ct at 1662 (Thomas, J. dissenting).

[15] See, e.g., Kevin Tobia et. al., Progressive Textualism, 110 Geo. L.J. 1437, 1447 (2022) (“Neither ordinary people nor professional linguists reduce sentences to tiny words such as ‘a’ or ‘so’ as have recent Supreme Court opinions.”); Bill Watson, Literalism in Statutory Interpretation: What Is It and What Is Wrong with It?, 2021 U. Ill. L. Rev. Online 218, 229–30 (2021) (“[T]he majority opinions in Bostock, and to a lesser extent in Niz-Chavez, were literalistic.”).

[16] United States v. Grant, 9 F.4th 186, 197 (3d Cir. 2021) (en banc).

[17] Miller v. Alabama, 567 U.S. 460, 469 (2012).

[18] Id. at 469 (quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)).

[19] See 356 U.S. 86, 101 (1958) (plurality opinion).

[20] Cf. TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001) (Scalia, J., concurring in judgment).

[21] See Trop, 356 U.S. at 87.

[22] Id. at 88.

[23] Id.

[24] Trop v. Dulles, 239 F.2d 527, 530 (2d Cir. 1956) (Clark, C.J., dissenting).

[25] Id. at 529–30.

[26] Id. at 530.

[27] Id. (Clark, C.J., dissenting) (citing Comment, The Expatriation Act of 1954, 64 Yale L.J. 1164, 1189–99 (1955)).

[28] See id.; see also Comment, supra note 27 at 1178–82.

[29] Trop, 356 U.S. at 91.

[30] 356 U.S. 44 (1958).

[31] Trop, 356 U.S. at 91–92.

[32] Id. at 92–93.

[33] Id. at 93.

[34] Id. at 100–01 (emphasis added).

[35] Witherspoon v. Illinois, 391 U.S. 510, 519 n.15 (1968).

[36] McGautha v. California, 402 U.S. 183, 202 (1971); Furman v. Georgia, 408 U.S. 238, 242 (1972) (Douglas, J., concurring); McLamore v. South Carolina, 409 U.S. 934, 936 (1972) (Douglas, J., dissenting from denial of certiorari); Sellars v. Beto, 409 U.S. 968, 970–71 (1972) (Douglas, J., dissenting); Gregg v. Georgia, 428 U.S. 153, 173 (1976) (plurality opinion); Woodson v. North Carolina, 428 U.S. 280, 301 (1976) (plurality opinion); Roberts v. Louisiana, 428 U.S. 325, 336 (1976) (plurality opinion).

[37] 429 U.S. 97, 102 (1976).

[38] Id. at 101–02.

[39] Gamble v. Estelle, 516 F.2d 937 (5th Cir. 1975).

[40] Gamble, 429 U.S. at 107–08.

[41] Id. at 102 (quoting Trop, 356 U.S. at 101).

[42] Trop, 356 U.S. at 100–03.

[43] See, e.g., California v. Ramos, 463 U.S. 992, 1028 (1983) (Marshall, J., dissenting); Gray v. Lucas, 463 U.S. 1237, 1244 (1983) (Marshall, J., dissenting from denial of certiorari); Autry v. McKaskle, 465 U.S. 1090, 1091 (1984) (Brennan, J., dissenting from denial of certiorari); Wainwright v. Witt, 469 U.S. 412, 461 (1985) (Brennan, J., dissenting).

[44] McCleskey v. Kemp, 481 U.S. 279, 300 (1987).

[45] 492 U.S. 302, 330–31, 340 (1989).

[46] 536 U.S. 304, 316–17 (2002).

[47] Id. at 311–12. In his Atkins dissent, Justice Scalia cited Trop’s language not because he believed it was a proper analytical tool, but to argue that even applying that standard, there was no consensus against the practice because 18 states (or 47% of the death penalty states) permitted the execution of the mentally disabled. Id. at 341–43 (Scalia, J., dissenting).

[48] 543 U.S. 551, 574 (2005) (abrogating 492 U.S. 361, 109 (1989)).

[49] Id. at 556.

[50] Id. at 570–71.

[51] Id. at 575.

[52] Id. at 587 (Stevens, J., concurring).

[53] See id. at 594, 604 (O’Connor, J., dissenting). In Roper, Justice O’Connor also criticized the Missouri Supreme Court’s failure to follow Stanford, which she called clear error. Id. at 593–94. She also noted that since Stanford, six states had executed people under 18. Id. at 595. And there was no genuine national consensus on this matter as there were over 70 juveniles on death row in 12 states. Id. at 596.

[54] Id. at 607 (Scalia, J., dissenting) (quoting The Federalist No. 78, p. 465 (C. Rossiter ed. 1961)).

[55] Id. at 608.

[56] 554 U.S. 407, 413 (2008).

[57] Id. at 419 (citing Weems v. United States, 217 U.S. 349, 367 (1910)).

[58] Id. (citing 356 U.S. 86, 101).

[59] Graham v. Florida, 560 U.S. 48 (2010).

[60] Id. at 58. (quoting 356 U.S. 86, 101).

[61] 567 U.S. at 465–66, 468 (2012). In Miller, one murder involved the shooting of a video store proprietor during a robbery in which defendant Jackson was a co-conspirator. Id. at 465–66. The second murder was particularly heinous, with Miller beating a man with a baseball bat while proclaiming: “I am God, I’ve come to take your life.” Id. at 468. Miller and his co-conspirators returned to burn down the victim’s trailer. Id.

[62] Id. at 469–70 (quoting 356 U.S. 86, 101).

[63] Id. at 470.

[64] Id.

[65] Id. at 483.

[66] 572 U.S. 701 (2014).

[67] Id. at 708 (quoting 356 U.S. 86, 101); see also id. at 708–09 (discussing policy rationales).

[68] Id. at 723.

[69] E.g., Graham, 560 U.S. at 67.

[70] Miller, 567 U.S. at 493 (Roberts, C.J., dissenting).

[71] Id. at 493–94.

[72] See id. at 494.

[73] Id. at 495.

[74] Id. at 497.

[75] Id. at 498.

[76] Id. at 501.

[77] Id. at 502–03 (Thomas, J., dissenting).

[78] Id. at 503–04. As Justice Thomas recognized in dissent, id. at 507, the Court had declined extending the individualized sentencing rule beyond the death penalty context some twenty years prior: “There can be no serious contention . . . that a sentence which is not otherwise cruel and unusual becomes so simply because it is ‘mandatory.’” Harmelin v. Michigan, 501 U.S. 957, 995 (1991) (citing Chapman v. United States, 500 U.S. 453, 467 (1991)).

[79] Miller, 567 U.S. at 509.

[80] Id. at 510 (Alito, J., dissenting).

[81] Id.

[82] Id. at 514.

[83] See, e.g., John F. Stinneford, Evolving Away from Evolving Standards of Decency, 23 Fed. Sent’g Rep. 87, 88–89 (2010) (delineating the current test’s erosion); id. at 89–90 (applying the original meaning to come to consistent results with a stable test).

[84] 141 S. Ct. 1307, 1319 (2021).

[85] Id. at 1328 (Sotomayor, J., dissenting) (“I dissent”).

[86] Id.

[87] Id.

[88] Id. at 1323 (Thomas, J. concurring).

[89] Id. at 1328.

[90] Id. at 1336 n.4.

[91] Miller, 567 U.S. at 501 (Roberts, C.J., dissenting).

Read More »

To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate – Judge Kathryn Kimball Mizelle

Posted by on Sep 14, 2023 in Obiter Dicta, Per Curiam

To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate – Judge Kathryn Kimball Mizelle
Download PDF

To Vacate or Not to Vacate: Some (Still) Unanswered Questions in the APA Vacatur Debate

Hon. Kathryn Kimball Mizelle*


Section 706(2) of the Administrative Procedure Act provides that federal courts reviewing agency action “shall” “hold unlawful and set aside agency action . . . found to be . . . not in accordance with law.”[1] For decades, federal courts have understood this provision to authorize vacatur of unlawful agency rules or regulation.[2] In my own Court, the meaning of “set aside” became relevant in Health Freedom Defense Fund v. Biden (you might also know it as the “mask mandate” case).[3] There, the plaintiff brought a challenge to a CDC rule requiring the wearing of masks on all public transportation and asked that the rule be “declared unlawful and set aside.”[4] Of course, the appropriate remedy for an APA violation was not a question of first impression before me. As a district judge, my discretion in fashioning relief was constrained by Eleventh Circuit precedent, which describes “vacatur . . . [a]s the ordinary APA remedy.”[5] That conclusion is widespread among the circuit courts of appeals, and most pointedly in the D.C. Circuit.[6] But notwithstanding the age of the APA and relevant circuit precedent, the Supreme Court has never directly ruled on the legality of vacatur under § 706(2) and the issue has become one of spirited debate.

For example, in United States v. Texas, which squarely raised a question about the meaning of “set aside” in § 706, the Justices displayed their divergent views at oral argument in November 2022.[7] The Chief Justice, for example, characterized the United States’s position that the APA does not authorize vacatur as “fairly radical and inconsistent with” decades of D.C. Circuit precedent.[8] He even joked that the D.C. Circuit affirms decisions awarding vacatur “five times before breakfast.”[9] Justice Kavanaugh referred to the Solicitor General’s argument as “extreme” and “astonishing” and to the idea that the APA does not authorize vacatur as a “radical rewrite . . . of . . . standard administrative law practice,” thoughtfully applied by decades of respected judges.[10] Conversely, Justice Gorsuch quipped that “some of us didn’t have the benefit of sitting on . . . the D.C. Circuit [and] five times before breakfast entering these orders. . . . I stare at the language and . . . I hear [the United States’] argument.”[11] And Justice Kagan noted that not all Justices belong to the “D.C. Circuit cartel” supporting vacatur.[12]

Although Professor Mila Sohoni and Professor John Harrison have each authored articles focused on the meaning of “set aside” in § 706,[13] until recently most scholars have made only cursory references to vacatur as part of articles focused on nationwide injunctions.[14] Indeed, before the Supreme Court granted certiorari in United States v. Texas, the meaning of “set aside” in § 706(2) was treated as a footnote to the larger controversy surrounding nationwide injunctions. The core question in that debate is whether the “judicial Power” to decide “Cases” and “Controversies” limits the ability of courts to purport to bind or award relief to non-parties when not necessary to provide full relief to plaintiffs.[15] Justice Thomas has opined that these so-called “universal injunctions are legally and historically dubious” as a matter of the traditional equitable powers of courts, at least as inherited at the time of the Founding.[16] He has also noted that granting such relief creates practical problems: “preventing legal questions from percolating through the federal courts, encouraging forum shopping, and making every case a national emergency for the courts and for the Executive Branch.”[17] Justice Gorsuch has publicly joined in those concerns.[18] The war over nationwide injunctions—although neither side has yet secured a surrender from the other—has garnered much academic and litigation attention, and the views espoused by Justices Thomas and Gorsuch appear to be gaining traction.

It is against this backdrop (and the sometimes unstated assumption that nationwide injunctions are unconstitutional) that I offer a few thoughts about the APA vacatur debate that warrant exploration and that, thus far, have largely been neglected. And because I doubt that the Supreme Court will reach the meaning of “set aside” in United States v. Texas, there remains time for academic development and parties to present robust arguments addressing these issues.[19] First, has the Supreme Court or the other branches already liquidated the meaning of “set aside” in § 706(2) to mean vacatur? Relatedly, did Congress create or recognize a new “form” of an APA action, and if so, what remedy attaches to that action? Finally, if the APA authorizes vacatur, is vacatur constitutional under Article III?

The first part of this speech provides a background of the debate about the meaning of “set aside” in § 706 as it operates against agency action that would be considered a rule or regulation. Next, I explore why vacatur is relatively common today and why we are debating the legality of vacatur now, even though it has been common practice for decades. Finally, I pose and unpack the above questions.

I.      Background

A.    The Administrative Procedure Act

The Administrative Procedure Act was enacted in 1946.[20] Five years later, the Third Circuit held that § 706—which includes the “set aside” language—“affirmatively provides” for vacatur.[21] And in 1963, the D.C. Circuit in Wirtz v. Baldor Electric Co. held that, upon remand and consistent with § 706(2), “the District Court should set aside” the Secretary of Labor’s minimum-wage determination.[22] Wirtz clarified that vacatur operated “with respect to the entire [electrical motors and generators] industry,” not only the plaintiff before the court.[23]

Much later, in National Mining Association v. U.S. Army Corps of Engineers, D.C. Circuit Judge Stephen Williams—in an opinion joined by Judge Silberman and Judge Sentelle—affirmed the nationwide vacatur of a regulation promulgated by the U.S. Army Corps of Engineers.[24] In coming to this conclusion, the court cited the “set aside” language in the APA’s scope of review provision.[25] Some circuits have gone even further. For instance, the Ninth Circuit held that nationwide vacatur is actually “compelled by the text” of § 706(2).[26]

More recently, however, respected jurists have begun to question the legality of vacatur. For instance, Chief Judge Sutton of the Sixth Circuit argues that § 706(2) does not authorize vacatur, explaining that “[u]se of the ‘setting aside’ language does not seem to tell us one way or another whether to nullify illegal administrative action or not to enforce it in the case with the named litigants.”[27] And as referenced earlier, Justice Gorsuch seems poised to agree that “set aside” says nothing about a remedy and everything about a “rule of decision.”[28]

B.     Arguments Against Vacatur

Professor John Harrison is the leading scholar arguing that vacatur was not contemplated by the APA as originally enacted. Harrison argues that § 706(2) does not authorize universal relief because § 706 is not a remedial provision at all.[29] He theorizes that the term “set aside” merely directs courts to disregard invalid agency action when resolving cases.[30]

Harrison observes that the term “set aside” can bear distinct meanings in federal law. It could refer to an appellate court reversing and vacating the judgment of a lower court.[31] Or it could refer to a court deeming that a regulation is invalid and thus should be disregarded as a rule governing the dispute before the court.[32] Under this latter sense of “set aside,” a court merely recognizes that the unlawful regulation does not bind the parties in the case.[33] Applying this theory to the APA, Harrison contends that § 706(2) authorizes courts to only disregard, or “set aside,” an agency regulation as to the case at hand.[34] Harrison notes that § 706 governs the “scope of review,” which in his view undercuts any argument that it concerns available remedies to the plaintiff.[35] Instead, Harrison turns to § 703’s list of “forms” of the proceeding to illuminate the types of remedies that are available in an APA suit.[36] This theory about the meaning of “set aside” has been referred to as a “rule of decision” interpretation of the provision, and is the position recently pressed by the Solicitor General in United States v. Texas.[37]

In March 2023, the Yale Journal on Regulation published another article by Professor Harrison about vacatur.[38] In this subsequent article, Harrison argues that vacatur of regulations was neither contemplated by the Congress that enacted the APA nor by scholars and courts during the 1940s, 50s, and 60s.[39] Harrison discusses legislative history,[40] Professor Kenneth Culp Davis’s 1958 Administrative Law Treatise,[41] Professor Louis Jaffe’s 1965 Book on Judicial Review of Agencies,[42] and the Supreme Court’s decision in Abbott Laboratories v. Gardner.[43] He notes that these sources state that the APA contemplates several remedies for unlawful regulations, including injunctions and declaratory judgments, but notably, none discuss the possibility of vacatur.[44]

Similarly, Chief Judge Sutton argues that Congress probably did not authorize vacatur through the “unremarkable” “set aside” language in § 706(2).[45] On Judge Sutton’s read of the history, before the APA courts had a “bedrock practice” of making only “case-by-case judgments” and awarding remedies limited to the parties.[46] Because courts “presume that statutes conform to longstanding remedial principles,”[47] and because “it is far from clear that Congress intended to make such a sweeping change” by enacting § 706, Judge Sutton rejects vacatur.[48]

Vacatur is also in tension with the Supreme Court’s 1940 decision in Perkins v. Lukens Steel Co.[49] Although Perkins reversed a nationwide injunction due to a standing problem, the Court said that its decision was meant to resolve “whether a Federal court, upon complaint of individual iron and steel manufacturers, may restrain the Secretary and officials . . . from carrying out an administrative wage determination by the Secretary, not merely as applied to parties before the Court, but as to all other manufacturers in [an] entire nation-wide industry.”[50]

The Supreme Court chastised the lower court by characterizing its remedy as extending “beyond any controversy that might have existed between the complaining companies and the Government officials.”[51] The Court faulted the overbroad injunction, concluding that “[a]ll Government officials with duties to perform under the Public Contracts Act have been restrained from applying the wage determination of the Secretary to bidders throughout the Nation who were not parties to any proceeding, who were not before the court and who had sought no relief.”[52] When the Supreme Court dismissed the suit, it noted that the plaintiffs could not “vindicate any general interest which the public may have,”[53] and emphasized that its decision was not grounded in “mere formality,” but upon “reasons deeply rooted in the constitutional divisions of authority in our system of Government.”[54]

Finally, opponents of vacatur note that even if the Supreme Court holds that vacatur is unlawful, many of the D.C. Circuit’s decisions will still have a universal effect due to special statutory review provisions or default venue provisions. Sometimes, litigants are required to challenge agency regulations in the D.C. Circuit by congressional design.[55] In other cases, plaintiffs at least have the option of challenging a regulation in the D.C. Circuit because venue almost always lies there.[56] Because of these realities, the D.C. Circuit’s decisions may still have a nationwide effect given their precedential value, even if vacatur qua vacatur under § 706(2) is unlawful. Professor Jonathan Adler recently highlighted this phenomenon.[57] Thus, if “the D.C. Circuit upholds a challenge to an agency action and vacates or ‘sets aside’ the agency action, as a practical matter it has been set aside or vacated for the nation as a whole.”[58] In this sense, whether the regulation or rule is disregarded as not binding to the plaintiff or the rule is itself nullified, the implication for the agency and for non-parties is the same.

C.    Arguments For Vacatur

On the other side of the debate, scholars—such as Professor Mila Sohoni and Professor Ronald Levin—argue that § 706(2) authorizes vacatur in the light of the text, structure, and history of the APA, and in the light of caselaw preceding the APA’s enactment.[59] Additionally, in United States v. Texas, Texas and Florida (as an amicus curiae) advance arguments grounded in text, precedent, and the canons of construction.[60]

These advocates would say that the best evidence of the meaning of § 706(2) is the text of the APA itself. The APA defines “agency action” to include “the whole or a part of an agency rule.”[61] Thus, when § 706 says, “The reviewing court shall . . . hold unlawful and set aside agency action,”[62] § 706 is also saying, “[t]he reviewing court shall . . . hold unlawful and set aside [‘the whole or part of an agency rule’] . . . found to be . . . not in accordance with law.”[63] In other words, § 706(2) instructs courts to “set aside” the regulation itself.

That reasoning alone, of course, is circular. It begs the question what “set aside” means, as one can disregard the “whole or part of an agency rule” in the way that Professor Harrison suggests. In response, Texas points to Black’s Law Dictionary from the 1930s, which defined “set aside” as “to cancel, annul, or revoke.”[64]

Texas argues that this reading also comports with the presumption against superfluity,[65] which attempts to give effect to “every word and every provision” of a statute.[66] Texas argues that, under Harrison’s and the United States’ position, “set aside” becomes synonymous with “hold unlawful” and therefore redundant.[67] According to Texas, the addition of “set aside” makes sense only as an authorization for a distinct remedy, namely, vacatur.[68]

Texas also notes that other sections of the APA grant courts the power to alter the status of the agency rule itself.[69] Section 705 authorizes courts to “issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.”[70] Because “agency action” includes “the whole or a part of an agency rule,”[71] under § 705, when a case is pending, the reviewing court “may issue all necessary and appropriate process to postpone the effective date of” “the whole or a part of an agency rule.”[72] The phrase “postpone the effective date of” refers to a preliminary remedy that courts may issue against the rule itself. This is different, of course, from a preliminary injunction against an executive officer from enforcing a statute, which does not alter the effective date of a statute or do anything to the statute. Instead, a preliminary injunction prohibits executive officers from enforcing the statute only against the parties before the Court.[73]

Professor Harrison objects that § 706 cannot speak to remedies because it speaks to the “Scope of Review” and is not a remedial provision.[74] Professor Sohoni responds that the provision refers to remedies in both subsection (1) and subsection (2).[75] Read together, § 706(1) and § 706(2) authorize “[t]he reviewing court” to “(1) compel agency action unlawfully withheld or unreasonably delayed; and (2) hold unlawful and set aside agency action . . .”[76] The power to “compel” an action is an equitable remedy long recognized at common law.[77] And although “the title of a statute or section can aid in resolving an ambiguity in the legislation’s text,”[78] the title of a provision cannot undermine the unambiguous directive of a statute.[79] The fact that § 706(1) unambiguously grants remedial power, Sohoni argues, suggests § 706(2) also grants remedial power.[80]

Sohoni buttresses her reading by referencing the 1941 Report of the Attorney General’s Committee on Administrative Procedure.[81] The Attorney General’s Committee was formed in 1939 to study the possibility of a federal statute that would standardize administrative law procedure.[82] Professor Paul Verkuil refers to the members of the Committee as the “founding fathers” of the APA,[83] as it included then-Solicitor General and later-Supreme Court Justice Robert Jackson, other judges, scholars, and DOJ officials.[84] Although the attack on Pearl Harbor and World War II delayed the enactment of administrative reform, the 1941 Report became the centerpiece of the Senate committee hearings when Congress was considering the Administrative Procedure Act in 1946. [85]

Sohoni argues that the 1941 Report suggests that “set aside” referenced vacatur, even in the 1940s.[86] She highlights instances where the Committee opined that sometimes “judicial review of administrative regulations” can involve review of “the validity of a regulation as a whole.”[87] The Committee also said that, “[a] judgment adverse to a regulation results in setting it aside.”[88] However, the Report never explicitly references vacatur of regulations.[89] And in an article in the Notre Dame Law Review, Professor Aditya Bamzai provides an alternative way to read these passages.[90] Bamzai concludes that the 1941 Report was probably referencing facial challenges to regulations—which is when a court holds that “a regulation [is] invalid in all of its applications”—even though the court ultimately “sets aside” the regulation as to the plaintiffs alone, and not universally.[91]

Finally, Sohoni cites several pre-APA cases[92]—most notably the Supreme Court’s 1942 decision in CBS v. United States.[93] Prior to the APA, several statutes authorized courts to “set aside” various agency actions, and these statutes date back at least until 1906.[94] Two of these statutes—the Urgent Deficiencies Act of 1913 and the Communications Act of 1934—were at issue in CBS. The Urgent Deficiencies Act authorized federal courts to “set aside” orders of the Interstate Commerce Commission.[95] And the Communications Act of 1934 said, “[t]he provisions of the [Urgent Deficiencies Act], relating to the enforcing or setting aside of the orders of the Interstate Commerce Commission, are hereby made applicable to suits to enforce, enjoin, set aside, annul, or suspend any order of the [Federal Communications] Commission under this Act . . . .”[96]

The plaintiffs—NBC and CBS—sued to “set aside” a regulation promulgated by the FCC.[97] In response, the United States and the FCC moved to dismiss the suit for lack of subject-matter jurisdiction.[98] Although the district court granted the government’s motion to dismiss, the court also ordered a stay delaying the enforcement of the regulations during the plaintiffs’ pending appeal.[99] This stay prohibited enforcement of the regulations against anyone, not simply against CBS and NBC. The district court required the FCC to “withhold enforcement in all cases until the issues could be once and for all determined.”[100] On appeal, the Supreme Court held that the district court had subject-matter jurisdiction, and the Supreme Court then continued the district court’s nationwide stay.[101] Later nationwide stays also prohibited the FCC’s regulation from becoming effective until the Supreme Court ultimately ruled for the FCC on the merits in 1943.[102]

The upshot of CBS v. United States is that the Supreme Court ordered the continuance of a nationwide stay against a regulation while the plaintiffs were suing under statutes authorizing federal courts to “set aside” agency regulations. Although the Plaintiffs sued for an injunction,[103] the “stay” granted by the district court delayed “enforcement [of the rule] in all cases,”[104] which is different than injunctions recognized by traditional equity. The “stay” in this case resembled another preliminary remedy authorized four years later in the APA: § 705—which permits reviewing courts to “issue all necessary and appropriate process to postpone the effective date of” agency rules “pending conclusion of the review proceedings.”[105] Sohoni concludes that in the 1940s, the term “set aside” authorized courts to stay the effective date of regulations; it did not merely authorize courts to temporarily enjoin enforcement of regulations against the parties before the Court.[106]

II.    Why the Vacatur Debate Emerged Decades After Congress Enacted the Administrative Procedure Act

So why is the legality of vacatur suddenly in question? The D.C. Circuit has vacated regulations for decades and in hundreds of cases with virtually no objection until the latter half of the 2010s.[107] One might also wonder why vacatur is relatively common today, even though it was uncommon when the APA was first enacted.[108] Finally, if the APA authorized vacatur, why was vacatur not discussed more fully at the time that the APA was enacted? I share three possible explanations.

A.    Vacatur is More Common Because of the Supreme Court’s Decision in Association of Data Processing Service Organizations Inc. v. Camp[109]

In 1970, the Supreme Court decided Association of Data Processing Service Organizations, Inc. v. Camp.[110] As Professor Caleb Nelson documented in a 2019 article, administrative law scholars view this decision—commonly referred to as ADPSO—as a “watershed” case.[111] Professor Gary Lawson called ADPSO an “Earth-Shattering Kaboom.”[112] ADPSO is significant because it fundamentally changed the way that courts construe the APA, and ADPSO created more opportunities for plaintiffs to challenge unlawful agency action.

Before the APA, litigants could challenge unlawful agency action in two limited circumstances. First, if an agency’s action violated a “legal right” held by the plaintiff, the plaintiff could sue for an injunction against an agency official.[113] But a would-be plaintiff could not sue merely because they were “harmed by the official’s unlawful behavior.”[114] Professor Nelson cites the example of Alabama Power Co. v. Ickes[115] to illustrate this point:

[I]n Alabama Power [], a utility company sought to enjoin the Federal Emergency Administrator of Public Works from providing loans and grants that would help municipalities build their own electric plants in the region that the company served. The company alleged both that the Administrator lacked authority to provide these subsidies and that the Administrator’s unlawful behavior would harm and might even ruin the company (because the company would lose business to the new plants). But according to the Supreme Court, even if the loans and grants were indeed unauthorized, they did not violate any “legal or equitable right” belonging to the company.[116]

Because the agency’s actions did not violate the utility company’s equitable or legal rights, the company could not sue for relief.[117]

Alternatively, Congress occasionally authorized private litigants to challenge unlawful agency action through “special statutory review provisions.”[118] If Congress enacted such a provision, litigants could obtain judicial review regardless of whether the agency action violated the plaintiff’s legal rights.[119] For example, the Communications Act of 1934 (the statute at issue in CBS v. United States[120]) included a special statutory review provision.[121]

As Professor Nelson notes, most administrative law scholars agree “that rather than expanding judicial review . . . the APA was simply meant to codify existing doctrines and to accommodate the variety of forms of review that were already in use.”[122] That is, the APA codified the pre-existing understanding that plaintiffs could obtain judicial review in two limited circumstances: either (1) the unlawful agency action violated the plaintiff’s “legal rights,” or (2) the unlawful agency action was subject to judicial review through a special statutory review provision.[123]

Most scholars agree that ADPSO fundamentally changed this understanding of the APA.[124] Today, ADPSO stands for the proposition that a plaintiff may sue for a remedy under the APA if (1) the plaintiff suffers an injury-in-fact due to the agency’s unlawful action, and if (2) the plaintiff is at least “‘arguably’ within the zone of interests to be protected or regulated by the statute or constitutional provision that the agency was violating.”[125] Plaintiffs are no longer required to prove that the agency violated one of the plaintiffs’ “legal rights” before they can sue.[126] To be sure, Professor Nelson rejects this reading of ADPSO and argues that later courts misinterpreted ADPSO’s holding.[127] But even Professor Nelson agrees that later Supreme Court decisions assumed that ADPSO stood for the proposition that a plaintiff can sue for relief so long as (1) the plaintiff suffers an injury in fact and (2) is “arguably” within the zone of interest to be protected by the statute or constitutional provision in question.[128]

Regardless of the proper interpretation of ADPSO, the point remains that modern interpretations of its holding have dramatically expanded opportunities for plaintiffs to challenge unlawful agency action today relative to those that existed in the 1940s, 50s, and 60s.

B.     Vacatur is More Common Because Pre-Enforcement Challenges are More Common

Vacatur is also more common today because Abbott Laboratories v. Gardner[129] expanded opportunities for pre-enforcement challenges against agency regulations. Before Abbott Labs, pre-enforcement challenges were rare. In most cases, litigants could only challenge the validity of a regulation as a defense to an agency’s enforcement action.[130]

The Supreme Court shifted course in Abbott Labs. The Court held that a pre-enforcement challenge is ripe for review if the issues of the case are fit for a judicial determination, and if there would be hardship to the parties in the absence of judicial review.[131] Justice Fortas—in a decision joined by the Chief Justice and Justice Clark—dissented.[132] Fortas characterized the Court’s decision as granting a “general hunting license” to litigants, and he feared that the decision “arm[ed] each of the federal district judges in this Nation with power to enjoin enforcement of regulations and actions under the federal law.”[133] He feared that the Court had “opened Pandora’s box. Federal injunctions will now threaten programs of vast importance to the public welfare.”[134]

In other words, Abbott Labs dramatically expanded opportunities for such pre-enforcement challenges to agency rules and programs.

C.    Scholars Began Questioning Vacatur Because of the Rise of Nationwide Injunctions

ADPSO and Abbott Labs partially explain why vacatur was relatively uncommon when the APA was first enacted. But these decisions have operated as controlling precedent for roughly half-a-century. So why is vacatur suddenly in question?[135]

One reason, in my view, is the rise of nationwide preliminary injunctions, which are often issued in APA challenges or in constitutional challenges. According to a 2018 memorandum from the Department of Justice, “[i]t took more than 200 years for the first 22 nationwide injunctions to be issued,” but “recently, courts issued 22 [nationwide injunctions] in just over one year.”[136] The pattern emerged as follows: a plaintiff challenges an executive action and immediately seeks, often securing, a preliminary injunction that halts the program or regulation for the next several years and remains in place until the Supreme Court elects to review the case.[137] In the interim, a top Executive Branch priority is waylaid by a single district court judge based on only a preliminary merits review undertaken in an expedited manner. This criticism is a well-founded practical problem with nationwide preliminary injunctions, and I’ve expressed my concern about them before.[138] As a result, the Trump Administration began arguing that nationwide injunctions, and vacatur under the APA, are unlawful and inconsistent with the Constitution, federal law, historical practice, and judicial precedent.[139] The Biden Administration has maintained the same position.[140]

As scholars began questioning the legality of nationwide injunctions, proponents of nationwide relief responded by citing vacatur under § 706 as an example of lawful, universal relief.[141] Opponents of nationwide injunctions then questioned whether § 706 authorized vacatur.[142] Before Professor Harrison’s article, scholars made passing references to § 706 and vacatur in papers focused on nationwide injunctions.[143]

III.  Unanswered Questions We Ought to Consider

That leads to the crescendo of this speech. Notwithstanding the current scholarship on vacatur and the litigation position of the Department of Justice in a host of varied APA cases, there are several questions that remain unanswered, likely because they have not been raised by courts. I break them into two sets: The first relates to the statutory interpretation debate of “set aside;” the second to the constitutional implications of the former.

A.    Statutory Interpretation Questions

1.     Is Vacatur a Liquidated Remedy?

First, has “set aside” been liquidated to mean vacatur?

“[O]n rare occasion,” a statutory provision might be “truly ambiguous” and “susceptible to multiple, equally correct legal meanings.”[144] Since the founding era, it has been well-established that courts have authority to liquidate these ambiguous provisions, meaning that courts may resolve ambiguity by adopting a reasonable interpretation of the provision.[145] In later cases, when a court is confronted with the “ambiguous” provision again, the court should adhere to its prior precedent so long as that precedent “occupies the space left by the indeterminacy of the underlying rules of decision.”[146]

So the question is whether “set aside” in § 706 is sufficiently ambiguous—given the history, structure, and text of the APA—to have already been liquidated to mean vacatur.

A couple things on this question. First, the Supreme Court has never directly addressed whether § 706 authorizes vacatur, although it has affirmed lower courts awarding vacatur, and its decisions frequently assume that vacatur is a valid remedy.[147] Recently, the Supreme Court stayed an EPA rule pending its decision, which ultimately invalidated the entire rule, and it did so without questioning the propriety of either that interim or final remedy.[148] The Court has also recognized that vacatur is distinct and a “less drastic remedy” than an injunction.[149] One might argue that, given the D.C. Circuit’s special role in administrative law, it has liquidated the meaning. A fair response is that, without a direct holding by the Supreme Court on the issue, § 706(2) has not been liquidated to provide for complete vacatur and no amount of uniformity among the lower courts or acquiescence by the Supreme Court in affirming judgments purporting to vacate regulations constitutes liquidation by the judiciary. Of course, in the absence of precedent, the first task of liquidation—if the Supreme Court decides the vacatur question—is to determine the correct legal meaning of the APA.

The lack of explicit judicial liquidation by the Supreme Court leads me to my second inquiry on liquidation. Has the phrase been liquidated by the other branches? In a 2019 article, Professor William Baude posits that liquidation sometimes occurred at the founding through executive or legislative practice instead of through a judicial decision.[150] Although Baude’s article focuses on liquidation in the constitutional context, it might be applicable to statutory liquidation too. James Madison seemingly thought that liquidation applied to statutes, as he states in Federalist Paper 37 that “[a]ll new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.”[151]

Baude posits three requirements for liquidation to occur in the constitutional context. First, he notes that there had to be “a textual indeterminacy.”[152] “Clear provisions could not be liquidated, because practice could ‘expound’ the Constitution but could not ‘alter’ it.”[153] Next, “there had to be a course of deliberate practice” and those “repeated decisions” must have “reflected constitutional reasoning.”[154] And lastly, “that course of practice had to result in a constitutional settlement.”[155] According to Baude, that settlement must include “acquiescence by the dissenting side, and ‘the public sanction’—a real or imputed popular ratification.”[156]

If applicable to statutes, has “set aside” been liquidated to mean vacatur in a way that meets these elements? As to the first point of textual indeterminacy, that debate turns on how wide a lane one permits for ambiguity (similar in some regards to a Chevron step one argument).[157] I do not attempt to nail down here the parameters for that kind of analysis. As to the second point of “deliberate practice” through “repeated decisions,” courts of appeals have regularly vacated unlawful regulations and the executive branch, to my knowledge, never officially took the position that vacatur­—as distinct from nationwide injunctive relief—was unlawful until 2018.[158] And after courts began awarding vacatur under § 706, Congress enacted several statutes that incorporate the APA’s judicial review scheme or include “set aside” language.[159] These statutes expressly provide courts with authority to review federal regulation.[160] Congress also amended the APA’s judicial review provisions in 1976—twenty-five years after Cream Wipt, thirteen years after Wirtz, and nine years after Abbot Laboratories—without touching § 706 or otherwise indicating that the remedy of vacatur was a misinterpretation of the APA’s remedial scheme.[161] Rather, the amendments Congress enacted served to expand the availability of relief to those seeking to challenge agency action by eliminating sovereign immunity as a defense to an APA suit.[162] Although “Congress’ acquiescence to a settled judicial interpretation can suggest adoption of that interpretation,”[163] when “Congress has not comprehensively revised a statutory scheme but has made only isolated amendments . . . [i]t is impossible to assert with any degree of assurance that congressional failure to act represents affirmative congressional approval of the Court’s statutory interpretation.”[164] Which of these principles best describes the above congressional action (and inaction) with respect to the APA may be relevant, especially given the sea change vacatur’s detractors allege that Cream Wipt and its progeny made to the law of administrative remedies. Lastly, there appeared to be no widespread dissenting public opinion until quite recently, but that dissent is becoming loud and strenuous.

To be clear, I am not endorsing the view that the other branches have liquidated § 706(2) to authorize vacatur as the appropriate remedy (or that the APA includes a textual indeterminacy that would allow them to do so), but I suggest this avenue as one worth considering in the vacatur debate.

2.     What relief attaches to a generic APA claim?

My second question about statutory interpretation concerns what relief attaches to a so-called generic APA claim. Section 703 provides that “the form of proceeding for judicial review” is either a “special statutory review proceeding” or “any applicable form of legal action” and then identifies some examples, like “actions for declaratory judgments or writs of prohibitory or mandatory injunction.”[165] Professor Harrison grounds his disagreement with vacatur on the basis that these other “forms” prescribe their attending remedies, so an action for declaratory judgment receives a declaratory judgment or a writ of mandatory injunction, an injunction, and so forth.[166] In his article, Professor Bamzai agrees with that view and explains that each of the § 703 forms provides for the kind of remedy that would ordinarily attach to it, borrowing from the background principles in which they arose.[167] He also posits that the “form” most prominent in pre-APA administrative challenges was the “bill of equity.”[168] According to Bamzai, that form allowed plaintiffs to bring pre-enforcement challenges to enjoin allegedly unlawful administrative action but required that the plaintiff satisfy the requirements of equitable relief, like irreparable harm.[169]

Section 703 did not, then, create the forms. It recognized them as potential vehicles of legal recourse against agency action. That makes sense if the APA simply codified existing administrative law instead of inventing new causes of action and remedies.[170] Indeed, scholars largely agree that that was exactly the point of the APA.[171] Harrison argues that vacatur under § 706(2) was an unknown form in the 1940s, 50s, and 60s, and Bamzai argues that the term “set aside” never meant vacate—either in the APA itself or in special statutory review provisions.[172] In response to Harrison’s position, Professor Emily Bremer highlighted a passage in a 1942 treatise about a pre-APA “form” allowing agency orders to be “vacated, annulled and set aside, and decreed to be void and of no effect.”[173] The treatise—titled Federal Administrative Law by F. Trowbridge vom Baur—expressly states that this form is “[f]or use where an injunction is not desired.”[174] Curiously, the treatise does not identify a case using the vacatur form.[175]

Today, courts no longer conceive of administrative law remedies in connection with the forms that pre-existed the APA. Instead, many courts countenance the idea of an “APA claim,” of which vacatur is the usual remedy.[176] Of course, litigants conceive of their APA actions in this way and draft their complaints accordingly. For example, in the mask mandate challenge, the Plaintiff’s complaint alleged that the Defendants violated the APA by promulgating regulations in excess of statutory authority, failing to provide opportunity for notice and comment, and acting arbitrarily and capriciously.[177] Instead of bringing a “bill of equity” seeking injunctive relief or some other form of recognized equitable relief, the first three counts of the complaint were labeled APA claims. At the end of the complaint, the Plaintiffs’ “prayer for relief” asked that the court “enter a declaratory judgment holding the Mask Mandate as unlawful and/or unconstitutional, and set it aside.”[178] And although the Plaintiff sought remedial rights under the Declaratory Judgment Act, it never cited a special statutory review provision or other recognized form to support its request to “set aside” the mandate.[179] Lastly, although the federal government asked that the mandate only be “vacated” as to the members of the Fund who filed a declaration to support associational standing of the organization,[180] it never cited any case that has ever authorized partial vacatur. Moreover, the Plaintiff never asked for an injunction of any kind, preliminary or final.[181] Instead, the entire complaint broadly alleged that the Plaintiff challenged the mask rule “pursuant to 5 U.S.C. § 706(2)” and that the court had remedial authority under § 706 of the APA, which it claimed required vacatur of the entire rule consistent with widespread administrative law practice.[182]

I use the mask mandate case as a template, but I suspect it is not an outlier in the administrative law world. A few other examples of similarly styled pleadings include the complaints in: United States v. Texas (the immigration case referenced at the beginning of this speech and before the Supreme Court this term),[183] New York v. Department of Commerce (where the plaintiffs alleged that the federal government unlawfully inserted a question about citizenship on the census form),[184] Florida v. Becerra (the “no sail” order governing cruise ships during the COVID-19 pandemic),[185] and Nebraska v. Biden (one of the student loan forgiveness cases).[186]

It seems clear, then, that if vacatur truly was not a form of proceeding that pre-existed the APA, that practice in the administrative law space has not pigeonholed plaintiffs into picking one of those pre-existing forms.[187] In that case, anyone attempting to understand the original meaning of § 706(2) must determine whether Congress created a new vacatur form via § 706(2), or whether vacatur is a valid form via liquidation. This leads to my formulation of the ultimate interpretive question in the vacatur debate: Is vacatur a new remedy expressly created by § 706(2), a statutorily liquidated remedy provided for in § 706(2), or a pre-existing remedy incorporated into § 706(2)? For vacatur to be a valid remedy, one of the above must be true. If the former, then what remedies attended other established “forms” are less informative as to what this new APA form permits.

That concludes my statutory interpretation questions and leads directly into my constitutional questions.

B.     Is Vacatur Constitutional Under Article III?

Turning now to my constitutional concerns, if § 706 authorizes vacatur, courts must consider whether vacatur is constitutional under the limits of the judicial power provided in Article III.[188] To answer that question, scholarship on the history and traditions of relief vis-a-vis regulations would be useful.

To start this inquiry, it would be helpful to distinguish between how courts and litigants conceive of vacatur and universal injunctions. Vacatur is distinct from injunctive relief in several key respects. Because courts do not have power to remove federal statutes from the statute books,[189] when a plaintiff is seeking relief from an unconstitutional statute, the plaintiff usually seeks an injunction against the executive officer who enforces the statute.[190] Regarding nationwide injunctions, the debated question is whether Article III authorizes district courts to prohibit executive officials from enforcing an unconstitutional statute against anyone, or whether Article III authorizes courts to prohibit officials from enforcing the unconstitutional statute only against the parties before the court.[191] An injunction, thus, does not operate against the statute itself nor is Congress a party to the lawsuit.

Vacatur is different. As Jonathan Mitchell explains, “the [APA] establishes a unique form of judicial review that differs from judicial review of statutes.”[192] According to Mitchell, vacatur “enables the judiciary to formally revoke an agency’s rules, orders, findings, or conclusions—in the same way that an appellate court formally revokes an erroneous trial-court judgment.”[193] In a theoretical sense, when a court “vacates” a regulation, the court does strike the regulation from the Code of Federal Regulation.[194] And, ordinarily, the agency that both promulgated the rule and enforces the rule is a party before the court.

Importantly, whether one agrees or disagrees as to the meaning of “set aside” in § 706, many, including the Solicitor General, argue that certain special statutory review provisions contemplate vacatur as the appropriate remedy (and they often use the terminology “set aside” to indicate that).[195] Thus, at some point, it appears inevitable that courts will be asked to confront the question of whether the judicial power of Article III includes the ability to vacate a regulation.

As the starting point to answer this question, federal courts should begin with a review of available remedies in historical equity practice.

One avenue for further research is whether, at the time of the founding, anything like a quasi-legislative, quasi-executive agency existed. If so, what powers did the courts possess to afford relief to a plaintiff against something akin to a rule or regulation? Was there ever an instance where the executive branch wrote the law, enforced it, and was the defendant in a lawsuit challenging that law? And is the writ-of-erasure fallacy premised solely on the impotency of courts to do anything other than declare the rule of decision in a case? Stated differently, does the judicial power operate the same against a rule promulgated by the executive as it does against a statute enacted by Congress?

Relatedly, because Article III courts are required to trace their equitable remedies to the British Court of Chancery in 1789,[196] one relevant question is whether vacatur was conceived of at traditional equity. Did the British Court of Chancery recognize a remedy that operated directly against a rule or regulation? If so, how did early federal courts exercise vacatur-like power when they sat in equity?

Finally, it seems courts order a regulation “vacated” as if that judgment were self-effectuating on the rule. I have, for example, never seen a court direct that the vacated rule be stricken from the Federal Register, which suggests the idea that vacatur must inherently do that without such a directive. But I wonder if that is accurate when viewed in the light of how reversal on appeal works. Take the mask mandate case again. If I am reversed on appeal, does the CDC need to re-promulgate the mask mandate or will it automatically spring back into action as soon as the Eleventh Circuit’s opinion issues? If the latter, what effect did the vacatur originally have? And if vacatur as currently conceived turns out to be beyond Article III powers, additional research would be quite informative as to whether a court could properly order an executive officer to rescind a regulation. That orientation would, on first glance, comport more with traditional notions of injunctions that bind only the individual executive officer before the court. And it would clean up some of the disjointedness I just described that inures when lower courts issue judgments setting aside agency regulations.

I make these points to frame questions, not to outline answers.


I look forward to observing the vacatur debate as it continues to develop. Thank you.

[1] 5 U.S.C. § 706(2)(A) (emphasis added).

[2] See Cream Wipt Food Prods. Co. v. Fed. Sec. Adm’r, 187 F.2d 789, 790 (3d Cir. 1951) (“Section 10(e) of the Administrative Procedure Act affirmatively provides for vacation of agency action which is unsupported by ‘substantial evidence’ and adds that ‘in making the foregoing determinations the court shall review the whole record . . . .’”); Wirtz v. Baldor Elec. Co., 337 F.2d 518, 534–35 (D.C. Cir. 1963) (holding, under section 10(e)(B) of the APA, that “if one or more of the plaintiffs-appellees is or are found to have standing to sue, the District Court should enjoin the effectiveness of the Secretary’s determination with respect to the entire industry”).

[3] See Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp. 3d 1144, 1176 (M.D. Fla. 2022) (Mizelle, J.).

[4] Id. Amended Complaint at 29, Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp. 3d 1144 (M.D. Fla. 2022) (No. 8:21-cv-1693), (Doc. 39); Plaintiff’s Motion for Summary Judgment, Health Freedom Def. Fund, Inc. v. Biden, 599 F. Supp. 3d 1144 (M.D. Fla. 2022) (No. 8:21-cv-1693) (Doc. 48 at 21).

[5] Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015) (omission in original).

[6] Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“We have made clear that when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.” (quoting Harmon v. Thornburgh, 878 F.2d 484, 495 n. 21 (D.C. Cir. 1989) (alterations and quotation marks omitted)); Data Mktg. P’ship, LP v. U.S. Dep’t of Lab., 45 F.4th 846, 859 (5th Cir. 2022) (“The default rule is that vacatur is the appropriate remedy.”); Sierra Club v. U.S. Env’t Prot. Agency, 60 F.4th 1008, 1021 (6th Cir. 2023) (“Reviewing courts certainly have the power to vacate an agency action they find unlawful.”); Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (holding that vacatur is the usual remedy against unlawful regulations), rev’d on other grounds Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020).

[7] See Texas v. United States, 606 F. Supp. 3d 437 (S.D. Tex. June 10, 2022), cert. granted before judgment, 143 S. Ct. 51 (2022).

[8] Transcript of Oral Argument at 35, United States v. Texas, No. 22-58 (U.S. Nov. 29, 2022).

[9] Id.

[10] Id. at 54–56.

[11] Id. at 47.

[12] Id. at 66.

[13] Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1122 (2020); John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. on Reg. Bull. 37 (2020) [hereinafter “Harrison, Section 706 Does Not Call for Universal Remedies”].

[14] See, e.g., Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 438 n.121 (2017); Amanda Frost, In Defense of Nationwide Injunctions, 93 N.Y.U. L. Rev. 1065, 1100 (2018); Zayn Siddique, Nationwide Injunctions, 117 Colum. L. Rev. 2095, 2123 n.167 (2017); Michael T. Morley, Disaggregating Nationwide Injunctions, 71 Ala. L. Rev. 1, 35 (2019); Ronald A. Cass, Nationwide Injunctions’ Governance Problems: Forum Shopping, Politicizing Courts, and Eroding Constitutional Structure, 27 Geo. Mason L. Rev. 29, 72–77 (2019); Milan D. Smith, Jr., Only Where Justified: Toward Limits and Explanatory Requirements for Nationwide Injunctions, 95 Notre Dame L. Rev. 2013, 2029–31 (2020).

[15] U.S. Const. art. III, § 2, cl. 1.

[16] Trump v. Hawaii, 138 S. Ct. 2392, 2429 (2018) (Thomas, J., concurring).

[17] Id. at 2425.

[18] See Dep’t of Homeland Sec. v. New York, 140 S.Ct. 599, 600 (2020) (Gorsuch, J., concurring).

[19] As the Texas Solicitor General conceded to Justice Alito and Justice Sotomayor at oral argument, the Court does not need to address the meaning of “set aside” under § 706(2). See Transcript of Oral Argument at 120, United States v. Texas, No. 22-58 (U.S. Nov. 29, 2022).

[20] See Administrative Procedure Act, Pub. L. No. 79-404, 60 Stat. 237 (1946).

[21] Cream Wipt Food Prods. Co. v. Fed. Sec. Adm’r, 187 F.2d 789, 790 (3d Cir. 1951).

[22] Wirtz v. Baldor Electric Co., 337 F.2d 518, 522 (D.C. Cir. 1963).

[23] Id. at 534–35.

[24] See 145 F.3d 1399, 1409–10 (D.C. Cir. 1998).

[25] Id. at 1410 (citing 5 U.S.C. § 706(2)(C)).

[26] Earth Island Inst. v. Ruthenbeck, 490 F.3d 687, 699 (9th Cir. 2007), aff’d in part, rev’d in part sub nom. Summers v. Earth Island Inst., 555 U.S. 488 (2009).

[27] Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, J., concurring).

[28] Transcript of Oral Argument at 48, United States v. Texas, No. 22-58 (U.S. Nov. 29, 2022).

[29] Harrison, Section 706 Does Not Call for Universal Remedies, supra note 13, at 42.

[30] Id.

[31] Id. at 40, 42–45.

[32] Id. at 43.

[33] Id.

[34] Id. at 45.

[35] Id. at 42, 45.

[36] Id.

[37] Brief of Petitioner at 40–44, United States v. Texas, No. 22-58 (U.S. Sept. 12, 2022).

[38] John Harrison, Vacatur of Rules Under the Administrative Procedure Act, 40 Yale J. on Reg. Bull. 119 (2023) [hereinafter “Harrison, Vacatur of Rules under the APA”].

[39] See id. at 123–31.

[40] Id. at 123–26.

[41] Id. at 127–28 (citing Kenneth Culp Davis, Administrative Law Treatise (1958)).

[42] Id. at 128–29 (citing Louis L. Jaffe, Judicial Control of Administrative Action (abr. student ed. 1965)).

[43] See id. (citing Abbott Laboratories, Inc. v. Gardner, 387 U.S. 136, 149 (1967)).

[44] See id. Harrison does not address discussions about vacatur in other early sources. See, e.g., Cream Wipt Food Prods. Co. v. Fed. Sec. Adm’r, 187 F.2d 789, 790 (3d Cir. 1951) (“Section 10(e) of the Administrative Procedure Act affirmatively provides for vacation of agency action which is unsupported by ‘substantial evidence’ and adds that ‘in making the foregoing determinations the court shall review the whole record . . . .’”). Nor does Harrison’s piece address analogous remedies that seem consistent with vacatur, such as the judicial power to delay the effective date of a rule under 5 U.S.C. § 705.

[45] Arizona v. Biden, 31 F.4th 469, 484 (6th Cir. 2022) (Sutton, J., concurring) (citing 5 U.S.C. § 706(2)).

[46] Id.

[47] Id. (citing Nken v. Holder, 556 U.S. 418, 433 (2009); Weinberger v. Romero-Barcelo, 456 U.S. 305, 320 (1982)).

[48] Id.

[49] See 310 U.S. 113 (1940).

[50] Id. at 117.

[51] Id. at 123.

[52] Id.

[53] Id. at 125.

[54] Id. at 132.

[55] See Jonathan Adler, Notice and Comment: On Universal Vacatur, the Supreme Court, and the D.C. Circuit, Yale J. on Reg. (Mar. 1, 2023), https://www.yalejreg.com/nc/on-universal-vacatur-the-supreme-court-and-the-d-c-circuit-by-jonathan-h-adler/ (citing 42 U.S.C. § 7607).

[56] Id.

[57] Id. (“[O]nce the D.C. Circuit has held that an agency action is unlawful, every other would-be challenger may rely upon the precedent in a challenge of their own, and those challenges will also occur in the D.C. Circuit.”)

[58] Id.

[59] Sohoni, supra note 13, at 1139, 1151–54, 1171; Ronald M. Levin, Vacatur, Nationwide Injunctions, and the Evolving APA, 98 Notre Dame L. Rev. 1997 (2023). At the time that the speech was delivered, Professor Levin’s article was forthcoming. References and citations throughout have since been updated to reflect the article’s publication.

[60] See Brief of Respondents at 40–42, United States v. Texas, No. 22-58 (U.S. Oct. 18, 2022); Brief of Florida as Amicus Curiae at 15–20, United States v. Texas, No. 22-58 (U.S. Oct. 25, 2022).

[61] 5 U.S.C. § 551(13); see also Caleb Nelson, Statutory Interpretation 555 (2011) [hereinafter “Nelson, Statutory Interpretation”] (“There is little controversy about definitional sections in statutes. Courts and scholars alike agree that legislatures have broad power to prescribe, by statute, how particular terms in the same statute should be understood.”).

[62] 5 U.S.C. § 706(2)(A).

[63] 5 U.S.C. §§ 551(13), 706(2) (emphasis added).

[64] Brief of Respondents at 40, United States v. Texas, No. 22-58 (U.S. Oct. 18, 2022) (quoting Black’s Law Dictionary 1612 (3d ed. 1933)).

[65] Brief of Respondents at 41, United States v. Texas, No. 22-58 (U.S. Oct. 18, 2022).

[66] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 174 (2012); see also Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669 (2007) (holding that courts should not read statutes in a manner that makes part of the statute “makes part of it redundant”).

[67] Brief of Respondents at 41, United States v. Texas, No. 22-58 (U.S. Oct. 18, 2022).

[68] Id.

[69] Id. at 40.

[70] 5 U.S.C. § 705.

[71] 5 U.S.C. § 551(13).

[72] 5 U.S.C. § 705.

[73] See Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 986–87 (2018).

[74] Harrison, Section 706 Does Not Call for Universal Remedies, supra note 13, at 37 (“The APA addresses remedies, not in section 706, but in section 703.”).

[75] Sohoni, supra note 13, at 1163 n.222.

[76] 5 U.S.C. § 706(1)–(2) (emphasis added).

[77] See, e.g., Hepburn & Dundas’ Heirs v. Dunlop & Co., 14 U.S. 179, 199–201 (1816); Morgan’s Heirs v. Morgan, 15 U.S. 290, 294 (1817); Mississippi & M.R. Co. v. Cromwell, 91 U.S. 643, 645–46 (1875); Kennedy v. Hazelton, 128 U.S. 667, 671 (1888).

[78] I.N.S. v. Nat’l Ctr. for Immigrants’ Rts., Inc., 502 U.S. 183, 189 (1991).

[79] See Scalia & Garner, supra note 66 (“[A] title or heading should never be allowed to override the plain words of a text.”).

[80] Cf. Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961) (“[A] word is known by the company it keeps.”); Third Nat. Bank in Nashville v. Impac Ltd., 432 U.S. 312, 322–23 (1977); Beecham v. United States, 511 U.S. 368, 371 (1994); Dolan v. U.S. Postal Serv., 546 U.S. 481, 486–87 (2006).

[81] Sohoni, supra note 13, at 1153–54, 1171–72.

[82] See Letter from Homer Cummings, Att’y Gen. of the U.S., to Franklin D. Roosevelt, President of the U.S. (Dec. 14, 1938) reprinted in Final Report of the Attorney General’s Committee on Administrative Procedure 251–52 (1941) [hereinafter “The 1941 Report”]; Letter from Franklin D. Roosevelt, President of the U.S., to Homer Cummings, Att’y Gen. of the U.S. (Feb. 16, 1939) reprinted in The 1941 Report at 252; Order No. 3125, Office of the Att’y Gen. (Feb. 23, 1939) reprinted in The 1941 Report at 252–53.

[83] Paul R. Verkuil, The Administrative Procedure Act at 75: Observations and Reflections, 28 Geo. Mason L. Rev. 533, 533–34 (2021).

[84] Jeremy Rabkin, The Origins of the APA: Misremembered and Forgotten Views, 28 Geo. Mason L. Rev. 547, 550–51 & n.9 (2021).

[85] See Verkuil, supra note 83, at 534.

[86] Sohoni, supra note 13, at 1171.

[87] Id. at 1153–54 (quoting The 1941 Report, supra note 79, at 115–16).

[88] The 1941 Report, supra note 82, at 117.

[89] See The 1941 Report, supra note 82, passim.

[90] See Aditya Bamzai, The Path of Administrative Law Remedies, 98 Notre Dame L. Rev. 2037, 2057–58 (2023). At the time that the speech was delivered, Professor Bamzai’s article was forthcoming. References and citations throughout have since been updated to reflect the article’s publication.

[91] Id. at 2058.

[92] Sohoni, supra note 13, at 1142–54.

[93] See 316 U.S. 407 (1942).

[94] See, e.g., Hepburn Act, ch. 3591, §§ 4–5, 34 Stat. 584, 589, 592 (1906); Act of June 18, 1910, §§ 1, 3, 36 Stat. 539, 542–43 (1910); Urgent Deficiencies Act of 1913, 38 Stat. 208, 219–20 (1913); Longshoremen’s and Harbor Workers’ Act, ch. 509, §21, 44 Stat. 1424, 1436 (1927); Communications Act of 1934, Pub. L. No. 73-416, §§ 402, 408, 48 Stat. 1064, 1093, 1096 (1934); Railroad Retirement Act of 1934, §10(b), 48 Stat. 1283, 1288 (1934); Act of Aug. 24, 1937, Pub. L. No. 75-352, § 3, 50 Stat. 751, 752 (1937) (repealed 1976); Railroad Retirement Act of 1937, § 11, 50 Stat. 307, 315 (1937); Bituminous Coal Act, ch. 127, § 6(b), 50 Stat. 72, 85 (1937); Fair Labor Standards Act, ch. 676, § 10(a), 52 Stat. 1060, 1065–66 (1938); Emergency Price Control Act of 1942, Pub. L. No. 77-421, § 204(a)–(b), 56 Stat. 23, 31–32 (1942) (repealed 1947).

[95] Urgent Deficiencies Act of 1913, Pub. L. No. 63-32, 38 Stat. 208, 219 (1913).

[96] Communications Act of 1934, Pub. L. No. 73-416, § 402(a), 48 Stat. 1064, 1093 (1934).

[97] Nat’l Broad. Co. v. United States, 44 F. Supp. 688, 690 (S.D.N.Y.), rev’d sub nom. Columbia Broad. Sys. v. United States, 316 U.S. 407 (1942), and rev’d, 316 U.S. 447 (1942).

[98] Id.

[99] Id. at 696–97.

[100] Id. (emphasis added); see also Sohoni, supra note 13, 1149–50 (discussing additional sources about the nationwide stay).

[101] Columbia Broad. Sys. v. United States, 316 U.S. 407, 421–22, 425 (1942).

[102] Nat’l Broad. Co. v. United States, 319 U.S. 190, 196 (1943) (“Since October 30, 1941, when the present suits were filed, the enforcement of the Regulations has been stayed either voluntarily by the Commission or by order of court.”).

[103] Columbia Broad. Sys., 316 U.S at 408.

[104] Nat’l Broad. Co. v. United States, 44 F. Supp. 688, 697–98 (S.D.N.Y.), rev’d sub nom. Columbia Broad. Sys. v. United States, 316 U.S. 407 (1942), and rev’d, 316 U.S. 447 (1942).

[105] 5 U.S.C. § 705.

[106] See Sohoni, supra note 13, at 1151 (“Then, as today, the target of judicial review was the rule. A reviewing court could preliminarily enjoin a rule on a wholesale basis. And when the reviewing court determined the rule was illegal on the

merits, the rule was set aside and permanently enjoined on a wholesale basis.”).

[107] Transcript of Oral Argument at 36–38, United States v. Texas (No. 22-58) (statement of General Prelogar), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-58_4fc4.pdf [https://perma.cc/HF7C-2HYY]; Memorandum from the Off. of the Att’y Gen. on Litigation Guidelines for Cases Presenting the Possibility of Nationwide Injunctions to Heads of Civ. Litigating Components, U.S. Att’ys 4 (Sept. 13, 2018) [hereinafter “Att’y Gen. Memorandum on Nationwide Injunctions”], https://www.justice.gov/opa/pressrelease/file/1093881/download [https://perma.cc/A4C9-V4NU].

[108] See William Baude & Daniel Epps, Marching Orders, Divided Argument, at 46:30–47:14 (Feb. 11, 2023) (accessed on Spotify) (“I think everybody agrees that when the APA was enacted, like nationwide vacatur of rules was not a common thing.”), transcript available at https://www.dividedargument.com/episodes/marching-orders/transcript [https://perma.cc/D75N-59LX].

[109] 397 U.S. 150 (1970).

[110] Id.

[111] Caleb Nelson, “Standing” and Remedial Rights in Administrative Law, 105 Va. L. Rev. 703, 708 (2019) [hereinafter “Nelson, Standing and Remedial Rights”] (quoting Jerry L. Mashaw et al., Administrative Law: The American Public Law System 1281 (7th ed. 2014)) (citing Stephen G. Breyer et al., Administrative Law and Regulatory Policy 816 (8th ed. 2017); Gary Lawson, Federal Administrative Law 1087 (8th ed. 2019)).

[112] Lawson, supra note 111, at 1087.

[113] Nelson, Standing and Remedial Rights, supra note 111, at 712–20.

[114] Id. at 717 n.54 (citing Stark v. Wickard, 321 U.S. 288, 290 (1944); Perkins v. Lukens Steel Co., 310 U.S. 113, 125 (1940); Tenn. Elec. Power Co. v. TVA, 306 U.S. 118, 137–38 (1939); R.R. Co. v. Ellerman, 105 U.S. 166, 174 (1882)); see also Gudgel v. Iverson, 87 F. Supp. 834, 841 (W.D. Ky. 1949).

[115] 302 U.S. 464 (1938).

[116] Nelson, Standing and Remedial Rights, supra note 111, at 718–19 (quoting 302 U.S. at 475).

[117] Alabama Power, 302 U.S. at 479.

[118] Nelson, Standing and Remedial Rights, supra note 111, at 721–25.

[119] Id. at 721–22 (citing Scripps-Howard Radio v. FCC, 316 U.S. 4 (1942); FCC v. Sanders Bros. Radio Station, 309 U.S. 470, 477 (1940)).

[120] 316 U.S. 407, 408 (1942).

[121] See Nelson, Standing and Remedial Rights, supra note 111, at 721–22.

[122] Id. at 727 n.98 (citing Stephen G. Breyer et al., Administrative Law and Regulatory Policy 816–17 (8th ed. 2017) (“This provision is best understood as codifying the bases for standing that had been developed by the courts at the time the APA was enacted.”); Elizabeth Magill, Standing for the Public: A Lost History, 95 Va. L. Rev. 1131, 1150 (2009) (“The widely accepted view of the history is that [§ 10(a)] was a declaration of existing law.”)); see also S. Rep. No. 79-752, app. B, at 229 (1945); Dep’t of Justice, Attorney General’s Manual on the Administrative Procedure Act 95–96 (1947).

[123] Nelson, Standing and Remedial Rights, supra note 111, at 727.

[124] See, e.g., Mashaw, supra note 111, at 1281; Breyer, supra note 111, at 816; Lawson, supra note 111, at 1087.

[125] Nelson, Standing and Remedial Rights, supra note 111, at 777–83.

[126] See, e.g., Air New Zealand Ltd. v. C.A.B., 726 F.2d 832, 836 n. 3 (D.C. Cir. 1984) (Scalia, J.) (adopting this reading of ADPSO).

[127] See Nelson, Standing and Remedial Rights, supra note 111, at 803.

[128] Id. at 780–83 (citing Japan Whaling Ass’n v. American Cetacean Society, 478 U.S. 221 (1986); Clarke v. Securities Industry Ass’n, 479 U.S. 388 (1987)).

[129] Abbott Labs, 387 U.S. 136 (1967).

[130] Toilet Goods Ass’n v. Gardner, 387 U.S. 167, 189–90 (1967) (Fortas, J., dissenting); Marla E. Mansfield, Standing and Ripeness Revisited: The Supreme Court’s “Hypothetical” Barriers, 68 N.D. L. Rev. 1, 19–23 (1992).

[131] Abbott Labs, 387 U.S. at 149.

[132] Toilet Goods, 387 U.S. at 174–201 (Fortas, J., dissenting). Please note that although Justice Fortas’s dissent bears the name of a companion case to Abbott Labs, Justice Fortas clarified that the dissent applied to Abbott Labs also. Id. at 174–75 (“Mr. Justice FORTAS, with whom THE CHIEF JUSTICE and Mr. Justice CLARK join, concurring in No. 336, and dissenting in Nos. 39 and 438 . . . I am, however, compelled to dissent from the decisions of the Court in No. 39, Abbott Laboratories v. Gardner, 387 U.S. 136, and No. 438, Gardner v. Toilet Goods Assn., 387 U.S. 167.”).

[133] Id. at 183.

[134] Id. at 176.

[135] The D.C. Circuit has awarded vacatur for decades, see supra note 107, and only one circuit has questioned the legality of vacatur. CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 259 (4th Cir. 2020) (Wilkinson, J., majority) (joined by Niemeyer, J.), reh’g en banc granted, 981 F.3d 311 (4th Cir. 2020). However, that circuit’s opinion was vacated and is no longer controlling precedent. Id.

[136] Att’y Gen. Memorandum on Nationwide Injunctions, 4.

[137] See, e.g., Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020); Dep’t of Com. v. New York, 139 S. Ct. 2551 (2019).

[138] Health Freedom Def. Fund, Inc. v. Biden, 572 F. Supp. 3d 1257, 1265–67 (M.D. Fla. 2021) (Mizelle, J.).

[139] Supra note 136.

[140] Supra note 107, at 57.

[141] See, e.g., Frost, supra note 14, at 1100 (“The APA appears to authorize nationwide injunctions in cases challenging federal agency action.”); Siddique, supra note 14, at 2123 n.167.

[142] See, e.g., Bray, supra note 14, at 438 n.121; Morley, supra note 14, at 35.

[143] Id.

[144] Gamble v. United States, 139 S. Ct. 1960, 1987 (2019) (Thomas, J., concurring).

[145] Caleb Nelson, Stare Decisis and Demonstrably Erroneous Precedents, 87 Va. L. Rev. 1, 13 n.35 (2001) [hereinafter “Nelson, Stare Decisis”].

[146] Id. at 84.

[147] See, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 486 (2001); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 161 (2000); Allentown Mack Sales & Serv., Inc. v. N.L.R.B., 522 U.S. 359, 374 (1998); Bd. of Governors of Fed. Rsrv. Sys. v. Dimension Fin. Corp., 474 U.S. 361, 365 (1986); Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 841–42 (1984).

[148] West Virginia v. E.P.A., 142 S. Ct. 2587, 2604 (2022) (“The same day that EPA promulgated the rule, dozens of parties (including 27 States) petitioned for review in the D. C. Circuit. After that court declined to enter a stay of the rule, the challengers sought the same relief from this Court. We granted a stay, preventing the rule from taking effect.”) (citing West Virginia v. E.P.A., 577 U.S. 1126 (2016)).

[149] See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165–66 (2010) (“If a less drastic remedy (such as partial or complete vacatur of APHIS’s deregulation decision) was sufficient to redress respondents’ injury, no recourse to the additional and extraordinary relief of an injunction was warranted.”)

[150] William Baude, Constitutional Liquidation, 71 Stan. L. Rev. 1, 8–13, 21–35 (2019).

[151] The Federalist No. 37 (James Madison), https://guides.loc.gov/federalist-papers/text-31-40#s-lg-box-wrapper-25493391 [https://perma.cc/ZEB9-YKGY] (emphasis added).

[152] Baude, Constitutional Liquidation, supra note 150, at 1.

[153] Id.

[154] Id.

[155] Id.

[156] Id.

[157] See id. at 66–68 (drawing the same analogy to Chevron).

[158] Att’y Gen. Memorandum on Nationwide Injunctions, 4; see also Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1408–09 (D.C. Cir. 1998) (“The agencies challenge the district court’s issuance of a nationwide injunction ordering ‘that the so-called Tulloch rule is declared invalid and set aside, and henceforth is not to be applied or enforced by the Corps of Engineers or the Environmental Protection Agency.’ The agencies make two arguments: first, that the plaintiffs are not entitled to an injunction because they presented no record evidence, and the district court made no explicit findings, as to the elements necessary for injunctive relief; and second, that even if the plaintiffs were entitled to an injunction the district court erred by granting nationwide relief to plaintiffs and non-parties alike. As for the first argument, we note at the outset that district courts enjoy broad discretion in awarding injunctive relief. . . . The agencies’ argument about the breadth of the injunction fares no better. We have made clear that ‘[w]hen a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.’”) (citations omitted).

[159] See, e.g., 15 U.S.C. § 1474(b)(3) (expressly incorporating § 706(2)); 28 U.S.C. § 3902 (expressly incorporating § 706(2)); 28 U.S.C. § 2342 (authorizing courts to “set aside” “regulations” promulgated by the Secretary of Transportation, the Federal Maritime Commission, and the Surface Transportation Board); 15 U.S.C. § 8302(c)(3)(B) (“The United States Court of Appeals for the District of Columbia Circuit shall . . . determine to affirm or set aside a rule, regulation, or order of the responding Commission . . . .”).

[160] See id.

[161] See Sohoni, supra note 13, at 1175.

[162] Act of Oct. 21, 1976, Pub. L. No. 94-574, 90 Stat. 2721 (amending 5 U.S.C. §§ 702–703); H.R. Rep. No. 94-1656, at 1 (The proposed legislation would amend section 702 of title 5, U.S.C., so as to remove the defense of sovereign immunity as a bar to judicial review of federal administrative action otherwise subject to judicial review.”).

[163] AMG Cap. Mgmt., LLC v. Fed. Trade Comm’n, 141 S. Ct. 1341, 1352 (2021).

[164] Alexander v. Sandoval, 532 U.S. 275, 292–93 (2001) (quotations omitted).

[165] 5 U.S.C. § 703.

[166] Harrison, Section 706 Does Not Call for Universal Remedies, supra note 13, at 45–46.

[167] Bamzai, supra note 90, at 2042–43.

[168] Id. at 2042–45.

[169] Id. at 2045.

[170] See Nelson, Standing and Remedial Rights, supra note 111, at 712–25; Bamzai, supra note 90, at 2044.

[171] Nelson, Standing and Remedial Rights, supra note 111, at 726–27.

[172] Harrison, Vacatur of Rules Under the APA, supra note 38, at 134; Bamzai, supra note 90, at 2045–51.

[173]Emily Bremer, Pre-APA Vacatur: One Data Point, Yale J. on Reg. Notice & Comment (Mar. 23, 2023), https://www.yalejreg.com/nc/pre-apa-vacatur-one-data-point/ (citing 2 F. Trowbridge vom Baur, Federal Administrative Law 865 (1942)).

[174] 2 F. Trowbridge vom Baur, Federal Administrative Law 865 n.56 (1942).

[175] See id.; see also Bremer, supra note 173 (“Most of the forms in the book are inspired by reported cases. This form doesn’t say which case inspires it . . . .”).

[176] See, e.g., Black Warrior Riverkeeper, Inc. v. U.S. Army Corps of Eng’rs, 781 F.3d 1271, 1290 (11th Cir. 2015) (“[V]acatur . . . is the ordinary APA remedy.”) (quotation omitted); Nat’l Min. Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (“We have made clear that when a reviewing court determines that agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their application to the individual petitioners is proscribed.”) (quotation omitted); Data Mktg. P’ship, LP v. United States Dep’t of Lab., 45 F.4th 846, 859 (5th Cir. 2022) (“The default rule is that vacatur is the appropriate remedy.”); Sierra Club v. EPA, 60 F.4th 1008, 1021 (6th Cir. 2023) (“Reviewing courts certainly have the power to vacate an agency action they find unlawful.”); Regents of the Univ. of California v. U.S. Dep’t of Homeland Sec., 908 F.3d 476, 511 (9th Cir. 2018) (holding that vacatur is the usual remedy against unlawful regulations), rev’d on other grounds Dep’t of Homeland Sec. v. Regents of the Univ. of California, 140 S. Ct. 1891 (2020).

[177] Health Freedom Def. Fund v. Biden, No. 8:21-cv-1693, (Dec. 13, 2021) (Mizelle, J.) Am. Compl. (Doc. 39) at ¶¶ 58–81, available at https://storage.courtlistener.com/recap/gov.uscourts.flmd.391798/gov.uscourts.flmd.391798.39.0.pdf [https://perma.cc/49FS-GL9J].

[178] Id. at 20, 24–25.

[179] Id. ¶ 21.

[180] Health Freedom Def. Fund v. Biden, No. 8:21-cv-1693, (Dec. 13, 2021) (Mizelle, J.) Def.’s Reply in Supp. of Mot. for Summ. J. (Doc. 50) at 25.

[181] Health Freedom Def. Fund v. Biden, No. 8:21-cv-1693, (Dec. 13, 2021) (Mizelle, J.) Am. Compl. (Doc. 39) at 31.

[182] Id. ¶¶ 5, 21.

[183] Am. Compl., Texas v. United States, No. 6:21-cv-16 (S.D. Tex. Oct. 22, 2021) (Tipton, J.), (Doc. 109).

[184] Second Am. Compl., New York v. Dep’t of Com., No. 1:18-cv-2921 (S.D.N.Y. July 25, 2018) (Furman, J.) (Doc. 214).

[185] Compl., Florida v. Becerra, No. 8:21-cv-839 (M.D. Fla. Apr. 8, 2021) (Merryday, J.) (Doc. 1).

[186] Compl., Nebraska v. Biden, No. 4:22-cv-1040 (E.D. Mo. Sept. 29, 2022) (Autrey, J.) (Doc. 1).

[187] See supra note 19 and accompanying text.

[188] See Trump v. Hawaii, 138 S. Ct. 2392, 2425 n.2 (2018) (Thomas, J., concurring) (noting that “if Congress someday enacted a statute that clearly and expressly authorized universal injunctions, courts would need to consider whether that statute complies with the limits that Article III places on the authority of federal courts.”); Transcript of Oral Argument at 61, United States v. Texas (No. 22-58) (statement of Barrett, J.), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-58_4fc4.pdf [https://perma.cc/HF7C-2HYY] (

“Why isn’t it a matter of Article III jurisdiction? Why do you concede that it would be acceptable if Congress specifically authorizes it?”).

[189] See generally Mitchell, supra note 73.

[190] See, e.g., Ex parte Young, 209 U.S. 123, 161 (1908) (“It would seem to be clear that the attorney general, under his power existing at common law, and by virtue of these various statutes, had a general duty imposed upon him, which includes the right and the power to enforce the statutes of the state, including, of course, the act in question, if it were constitutional. His power by virtue of his office sufficiently connected him with the duty of enforcement to make him a proper party to a suit of the nature of the one now before the United States circuit court.”) (emphasis added).

[191] See generally Bray, supra note 14; see also CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 262 (4th Cir. 2020) (“And even on the district court’s view that CASA had standing to challenge the Rule, the decision to grant a nationwide injunction was still wrong. There is no reason—none—that the district court, if it felt the Rule unlawful, could not have issued a narrower injunction barring the federal government from enforcing the DHS Rule against CASA’s members.”). However, the opinion was vacated and is no longer controlling precedent. 981 F.3d 311 (4th Cir. 2020).

[192] Mitchell, supra note 73, at 950.

[193] Id. at 1012.

[194] Id. at 1012–13.

[195] Transcript of Oral Argument at 36–38, United States v. Texas (No. 22-58) (statement of General Prelogar), https://www.supremecourt.gov/oral_arguments/argument_transcripts/2022/22-58_4fc4.pdf [https://perma.cc/HF7C-2HYY].

[196] Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 318–19 (1999); Atlas Life Ins. Co. v. W.I. Southern, Inc., 306 U.S. 563, 568 (1939) (holding that federal courts must trace equitable remedies to “the English Court of Chancery at the time of the separation of the two countries”).

Read More »

The Rising Importance of State Courts – Justice Gregory C. Cook

Posted by on May 22, 2023 in Obiter Dicta, Per Curiam

The Rising Importance of State Courts – Justice Gregory C. Cook
Download PDF

The Rising Importance of State Courts

Hon. Gregory C. Cook*

The following is a lightly edited version of a speech by Justice Cook at Harvard Law School on April 1, 2023, at the Harvard Federalist Society’s annual Alumni Symposium. Justice Cook delivered these remarks while moderating a panel titled “The Rising Importance of State Courts” which also featured Judge John K. Bush of the United States Court of Appeals for the Sixth Circuit and Boies Schiller Flexner LLP partner Jesse Panuccio.

I am honored to be here today to talk about why state courts are important and becoming more important. I hope I can bring a unique perspective. I have spent almost exactly half of my career in state court and half in federal court. Even more unique, I have just finished campaigning for the Alabama Supreme Court. And, right in the middle of my campaign, the Dobbs decision was leaked and then released. The fact that Dobbs transferred decisions about abortion from the federal level to the state level significantly intensified the interest of the voters in my race, and I think the Court will be sending other issues to the states. More than anything, Dobbs made me focus on the rule of law as a touchstone as I talked to people on the campaign trail. People became acutely aware of the importance of electing judicial conservatives to their state Supreme Court if they wanted a court which would say what the law is, rather than what it should be. As I told the voters (both face to face and in my television advertisements), I am “boring and predictable” and intend to remain “boring and predictable” and to approach each case with this attitude. Often, my wife came on the campaign trail and would confirm to the audience, that I am indeed “boring and predictable.” Having campaigned for almost two years, I am confident that the voters of Alabama want judges who are boring and predictable; judges who do not surprise them. In fact, it may be time to rebrand originalism and simply refer to it as the “boring and predictable” approach.

Most of my early career was in state court. I spent time in rural courtrooms and tackling some large and some very small cases. There are 67 counties in Alabama, and I had cases in over 40 of them. It was a real eye-opening experience after spending three years in, some would say, the ivory tower at Harvard. Real people; real problems; real life; real solutions; real compromise; birds flying in the courtroom; depositions in front yards. It could be very personal. And, at least in the 1990s, subtle nuances were sometimes not the most effective arguments. When I began my practice in the early 90s, Alabama became known as “tort hell,” and we were a poster child for the national Chamber of Commerce and the Wall Street Journal. Judicial restraint was not a priority for our Supreme Court. The BMW decision—the U.S. Supreme Court case placing limits on punitive damages—is an Alabama case from that time period.[1] The business community eventually fought back and hired Karl Rove to run judicial campaigns. Business eventually spent approximately $20 million in campaign contributions, but changing the composition of a state supreme court is not fast or easy. It took three election cycles to change the majority of the court to a more textualist based judiciary.

State court can sometimes be a very rough-and-tumble place to practice law. As an example, I helped a partner try a bench trial within a week or so of having passed the bar exam. We drove to this rural county for an afternoon trial. We went to lunch at the barbeque restaurant across from the courthouse. When we entered, there sat the trial judge, having lunch with the plaintiff’s counsel. I do not say this to imply that this was unethical or even improper. It was not. In truth, they had lunch almost every day and had known each other for years. But this is not exactly how my civil procedure—or professional responsibility class—painted the everyday practice of law.

More recently, I have had the privilege to practice in federal courts across this country in some very large, complex cases. Federal courts work hard to get the answers right; they look carefully at nuances—but you don’t always get that “personal” feel in federal court. In fact, sometimes, cases progress through summary judgement entirely on the papers—and never appear personally in the courtroom. I will also say that, in my experience, most federal courts tend to be at least somewhat hesitant to make rulings on state law, or state constitutions, or state government matters. In short, most federal judges who I know are very conscious of not overstepping their assigned role in our dual sovereignty model. And, when they do make such rulings, try to intrude as little as possible into matters of state sovereignty.

As a newly elected justice, I believe Alabama is becoming a place which has the best of both worlds—providing real remedies to real people, but also paying close attention to the nuances of complicated legal arguments. I promise you things have changed in Alabama over the last 30 years and that I will always strive to listen carefully to every argument by all lawyers from all sides.

Most of my career has been as a private practice lawyer and I am a very, very new justice. So, my perspective is mostly as an advocate.

As an advocate, I am shocked that state constitutional arguments are not made in every single case where constitutional claims are raised. As a private lawyer, my clients did not care which arguments worked; they simply wanted to win their cases.

We are in the final weekend of the NCAA Basketball tournament, and I am certain that every coach wanted two free throws for each foul and not just one. The same is true in the courtroom. First, I strongly urge advocates to make both arguments—federal and state constitution. Second, you should not assume that the wording in the state and federal constitution is the same or that the caselaw is the same. Third, do not assume that the result will be the same under both documents even if the wording and caselaw is the same.

If you haven’t read Judge Jeff Sutton’s book on the importance of state constitutional law, you are really missing something, and much of what I say today is heavily influenced by his book.[2] In fact, he uses this free throw analogy.

The Left is waking up to this. Justice Brennan—a lion of the Left—wrote a key law review article in the Harvard Law Review in 1977. It was entitled: “State Constitutions and the Protection of Individual Rights.” The synopsis from the article is insightful, and I quote:

During the 1960s, as the Supreme Court expanded the measure of federal protection for individual rights, there was little need for litigants to rest their claims, or judges their decisions, on state constitutional grounds. In this article, Justice Brennan argues that the trend of recent Supreme Court civil liberties decisions should prompt a reappraisal of that strategy. He particularly notes the numerous state courts which have already extended to their citizens, via state constitutions, greater protections than the Supreme Court has held are applicable under the federal Bill of Rights. . . .[3]

If a state supreme court renders a decision, we are almost always the final word, especially if we are construing our state’s constitution.[4] State courts are where the action is today. State courts are where over 95% of all cases in the county are filed. According to the last numbers I have seen, there were 83,000,000 civil and criminal cases were filed in state courts.[5] The counterpart number in the federal courts is 400,000.[6] Think about it: 83,000,000 to 400,000. If you drill down to just the criminal cases, the disparity is even larger (17,000,000 to 70,000).[7]

Political groups know this. For instance, there was almost $4 million dollars spent on advertising in my Supreme Court race. Or, take North Carolina. Before the 2022 election, there was a 4-3 Democratic majority. They ruled that a constitutional amendment requiring voter ID was unconstitutional. Let me say that again slowly, they ruled that a part of their constitution, approved by the people in a statewide election, was unconstitutional. It did not surprise me that in their 2022 Supreme Court election and after a hotly contested election, the people switched the court from 4-3 Democrat to 5-2 Republican.

Or, consider Pennsylvania. It is 4-2 Democratic. In a split 2020 decision regarding the hotly contested election for President, three Justices said undated mail in ballots should be rejected, while three Justices said undated ballots should count; and the seventh Justice said undated ballots should be rejected in the future but allowed in that year’s Presidential election.

Or, consider Ohio. Until 2021, the parties nominated candidates but the party label was not listed on the general election ballot. After a Democrat won in the 2020 election and helped change the court balance, the legislature changed the law to put the party on ballot. Among its most contentious issues has been redistricting. The Democratic court twice rejected a Republican legislature’s Congressional map, and that dispute is still ongoing.

Or, consider Wisconsin. Conservatives held a 4-3 majority (there were no party labels). In the first election after the Dobbs decision (April, 2023), a conservative and liberal ran for the same open seat. The main issue in the election was abortion and the liberal candidate and her supporters made abortion the major campaign issue. I believe that the total campaign spending, on both sides, will exceed $50 Million in that race. More than any other race, this election has made the election of state court judges appear like true political races for the legislature.[8] While I am a fan of the election of state court judges and federalism, I fear this trend. I wonder exactly how we can draw a line which does not mean the loss of the important respect courts need to enable us to resolve difficult and hotly contested cases.

So, there is a great deal of action going on in state courts today. This should not surprise us. The majority of our Bill of Rights came from pre-existing state constitutions in the 13 original states. At our nation’s founding, the real need for protection was from state governments. The federal government was smaller than state governments. States ran everyday life. No one believed that the federal Constitution applied to states (and it really didn’t—with a very few exceptions). Hamilton even said: “There is no need for a Bill of Rights because states would be sentinels over the rights of the peoples.”

Judge Sutton has argued that it is less risky and easier for a state court to broaden an interpretation of a constitutional right. States have traditionally been our laboratories. It is part of the beauty of federalism. Allowing state courts to be the primary agents of change should hopefully improve the United States Supreme Court’s decisions. It will lower the resentment from counter-majoritarian decisions at the federal level. Also, a state court can rule more broadly because it has a more homogeneous population and circumstances. Judge Sutton calls this argument the “federalism discount.” State courts are much better positioned to recognize local conditions and traditions which bear on what those citizens perceive as truly fundamental rights worthy of constitutional protection. For instance, Wyoming citizens will probably be more protective of property and firearms and Utah citizens may be especially protective of freedom of religion.

Also, many states have mandatory appellate jurisdiction in their supreme courts, whereas the United States Supreme Court accepts only a tiny percentage of cases for certiorari each year. In other words, you are far more likely to make actual final, binding precedent if you go the state court route.

Also, state constitutions have different text and history, including some clauses that one may have never heard about: single subject rules, uniform law clauses, right to remedy clauses, title of bill clauses, among others. For instance, in Alabama we have the longest constitution in the United States, and we have a number of clauses that either are not in the federal Constitution, or which are notably different from the federal Constitution. Just a few examples are:

  • Article I, §23: “nor shall private property be taken for private use. . . .”
  • Article I, §13: “That all courts shall be open; and that every person, for any injury done him, in his lands, goods, or reputation, shall have a remedy by due process of law. . .”
  • Article I, § 26: “Every citizen has a fundamental right to bear arms in defense of himself or herself and the state. Any restriction on this right shall be subject to strict scrutiny.”
  • Article I, §33: “The privilege of suffrage shall be protected by laws regulating elections and prohibiting . . . . improper conduct.”

In addition, Alabama’s constitution has an express separation of powers provision (arguably preventing certain delegation of legislative powers—Article III, §43), a one subject rule for each law (Article IV, §45), a provision preventing changing of the original purpose of the bill (Article IV, §61), and many “local” constitutional amendments which cover only one county. Standing is yet another area where states courts may reach a different result under their state constitutions than federal courts, a point which I recently noted in a special writing.[9]

One particularly helpful example which Judge Sutton’s book explores is San Antonio v. Rodriguez.[10] This was an effort to force a constitutional right to equal school funding among school districts. The United States Supreme Court rejected this. Justice Powell reasoned that there was no right to education in the Constitution.[11] Diligent plaintiff lawyers did not give up. They brought state action in Texas state court and won, because there was language in the Texas Constitution which does discuss education directly.[12] Likewise, this happened in many other states. By Judge Sutton’s count, there have now been 44 states where this type of claim has been brought and the plaintiffs have won 27 of them.[13] Plaintiffs in these cases may also have achieved results that are more broad than they could have received from the U.S. Supreme Court, given federal courts’ hesitancy to order that state taxes be raised.

It is true that the dial probably moves in only one direction—more protection not less, meaning that the state court cannot restrict the protection given by federal courts under the federal constitution.

To the extent our audience includes conservatives, one might say that all of these extensions are liberal ideas—why should we care? One might point to the same sex marriage case from the Supreme Court of Massachusetts.[14] One might point to abortion—for instance, the South Carolina Supreme Court decisions, post Dobbs, striking down a heartbeat law based upon the right of privacy (which is in the text of the South Carolina Constitution).[15] Or, one might point to redistricting litigation in many states where some state supreme courts have held—contrary to the United States Supreme Court[16]—that partisan gerrymandering is justiciable and unconstitutional under their state constitutions.[17]

However, I believe those conservatives would be wrong. I expect that in the future conservatives will bring cases to enforce state constitutional rights. For instance:

  • Free speech against various state laws and agencies.
  • Free exercise of religion claims. The pandemic is a perfect example of state governments imposing incredibly restrictive rules on houses of worship. In fact, the reaction of many state courts to Employment Division v. Smith[18] to recognize a broader protection of the free exercise of religion than did the U.S. Supreme Court is an example of what can occur in state courts.[19]
  • Economic regulations. For instance, mandatory licensing cases (making the scrutiny stricter than Williamson v. Lee Optical).[20]

Other examples might be rent control or other economic rules that could be construed as takings or impairments of contract rights. Perhaps the best example of a case which might come out differently under some state’s constitutions is Kelo.[21] Or even Lochner-type economic rights. Another issue might be commercial speech protections or, election law efforts (to protect the secret ballot or election security issues).

I note the question which I have received from the audience regarding whether sending these issues to the states is good or bad. As posed, the student noted the decades of efforts of conservatives to appoint textualists to the federal courts and, especially the United States Supreme Court. Another student noted the difficulty of finding textualists for the many state court judicial positions and the difficulty of attracting qualified jurists given that the pay and support may not be equal to federal court. I reject these concerns. I think there are many qualified lawyers who believe in the rule of law and are willing to serve.

More fundamentally, I reject the premise of the question. Our constitution is built on the mandate for federalism. Federalism is beautiful. It is democracy in action. It is what conservatives have been requesting for decades. As a conservative, I do not believe I should win every argument. Instead, I believe that we should have those arguments and the best argument should win the day, rather than having the result dictated from Washington. And, it may be that my argument loses in a particular state and wins in another state. In sum, I believe the decision should be local, if at all possible.

Before I sit down, I want to urge our audience to consider getting involved in the state constitutional field. Of course, I urge you to consider a state supreme court clerkship. There is also lots of room for new scholarship. I am especially thinking of research and writing on the original public meaning of many state constitutional provisions and their history. Many state justices have begun expressly calling for additional scholarship in their writings. I hope those opinions and programs like this will highlight how open this field is to young scholars looking to make their mark. In some other areas, young scholars may be drowned out by lots of other voices.  However, in state constitutional law, a young lawyer may be the only voice. We often take for granted the wealth of resources to use for textualist analysis for the federal constitution, but the dearth of such resources on the state level may slow the develop of textualist analysis.

I could imagine law review articles or even treatises. Such scholarship might concern a single state, or a single subject (for instance, what type of variations exist in state constitutions on a particular subject like freedom of religion). I can even imagine a treatise or a Restatement effort to categorize the different types of clauses, given the likely connection between many of our state constitutions. I could also imagine scholarship on a framework for judges to decide such issues. For instance, should we (as Judge Sutton mentions)[22] decide state constitutional issues before federal constitutional issues?

I look forward to serving in the courts of the great State of Alabama, and as I look around this room I am optimistic about the future of not only my state, but the many others in which you will reside and, hopefully, serve.

* Greg Cook is an Associate Justice on the Alabama Supreme Court, having taken office in January 2023. Justice Cook is a 1991 graduate of Harvard Law School, magna cum laude, and is a former Executive Editor of the Harvard Journal of Law & Public Policy. He is the author of, among others, the Alabama Rules of Civil Procedure, Annotated (2018, Thomson Reuters). His daughter, Mary Catherine Cook (Harvard Law ‘24 and a JLPP editor) introduced him to the audience.

[1] BMW of North America, Inc. v. Gore, 517 US 559 (1996).

[2] Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law (2018). Judge Sutton sits on the United States Court of Appeals for the Sixth Circuit.

[3] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489, 489 (1977).

[4] The United States Supreme Court rarely has any authority to review state court decisions based upon their state constitutions. Conceptually, they could decide that a state supreme court’s interpretation of its state constitution (like its interpretation of a state law) somehow violates the federal Constitution. One example is the pending case from North Carolina regarding redistricting. The North Carolina Supreme Court (where Democrats held a 4-3 majority until recently) ruled that the proposed redistricting maps, drawn by the Republican Legislature, violated the state constitution. The Legislature then sought certiorari in the United States Supreme Court based upon the independent state legislature theory, claiming that the federal Constitution’s elections clause governs over the North Carolina Supreme Court’s construction of its constitution. That provision states that the time, place, and manner of congressional elections “shall be prescribed in each State by the Legislature thereof.” Moore v. Harper, Docket No. 21-1271.

Regardless of the outcome in Moore, this type of argument is exceptionally uncommon and there is much debate over even this limited theory. Given that the North Carolina Supreme Court (with a newly constituted Republican majority) has granted rehearing in this case, it is also possible that the United States Supreme Court will not reach a result in this matter.

[5] Ct. Stats. Project, Nat’l Ctr. for State Cts., State Court Caseload Digest: 2018 Data 7 (2020), https://www.courtstatistics.org/data/assets/pdf_file/0014/40820/2018-Digest.pdf [https://perma.cc/27VE-R97L].

[6] Admin. Off. of U.S. Cts., Federal Judicial Caseload Statistics 2018 [hereinafter Admin. Off., Statistics 2018], U.S. CTS., https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2018 [https://perma.cc/A5EF-7TJ6] (last visited Aug. 14, 2022) (358,563 cases filed); Admin. Off. of U.S. Cts., Federal Judicial Caseload Statistics 2020 [hereinafter Admin. Off., Statistics 2020], U.S. CTS., https://www.uscourts.gov/statisticsreports/federal-judicial-caseload-statistics-2020 [https://perma.cc/MU46-Z9MB] (last visited Aug. 14, 2022) (425,945 cases filed).

[7] Ct. Stats. Project, supra note 5, at 7; Admin. Off., Statistics 2018, supra note 6. But see Admin. Off., Statistics 2020, supra note 6 (93,213 federal criminal cases filed).

[8] See generally Shawn Johnson, For the first time in 15 years, liberals win control of the Wisconsin Supreme Court, NPR (Apr. 4, 2023), https://www.npr.org/2023/04/04/1167815077/wisconsin-supreme-court-election-results-abortion-voting-protasiewicz-kelly.

[9] Hanes v. Merrill, No. SC-2022-0869, So.3d (Ala. 2023) (Cook, J., concurring).

[10] 411 U.S. 1 (1973).

[11] Id. at 35.

[12] Edgewood Indep. Sch. Dist. v. Kirby, 777 S.W.2d 391 (Tex. 1989); Tex. Const. art. VII, §1 (“[I]t shall be the duty of the Legislature of the State to establish and make suitable provision for the support and maintenance of an efficient system of public free schools.”)

[13] Sutton supra note 2, at 30.

[14] Goodridge v. Dept. of Public Health, 798 N.E.2d 941 (Mass. 2003).

[15] Planned Parenthood South Atlantic v. State of South Carolina, 438 S.C. 188 (S.C. 2023) (construing Article 1, Section 10 of the South Carolina Constitution). This decision was 3-2 and the privacy provision is subject to competing interpretations, as explained in the dissent. It is possible that this decision is not the last word on this issue for South Carolina given ongoing debate the retirement of one justice and pending legislation.

[16] Rucho v. Common Cause, 139 S.Ct. 2484 (2019).

[17] Harper v. Hall, 380 N.C. 317, 868 S.E.2d 499 (2022).

[18] 494 U.S. 872 (1990).

[19] See, e.g., Minnesota v. Hershberger, 462 N.W.2d 393 (Minn. 1990) (Minnesota Supreme Court originally ruled in case regarding Amish practices based upon federal constitution; after remand after release of Smith, court reached same result under its state constitution).

[20] 348 U.S. 483 (1955) (state laws regulating business are subject to only rational basis review; finding no constitutional violation for a law making it unlawful for any person not a licensed optometrist or ophthalmologist to fit lenses to a face or to duplicate or replace into frames lenses or other optical appliances, except upon written prescriptive authority of an Oklahoma licensed ophthalmologist or optometrist). An example of a contrary result is Ladd v. Real Est. Comm’n, 230 A.3d 1096 (Pa. 2020) (concluding that a licensing regime violated the Pennsylvania Constitution’s right to pursue a chosen occupation).

[21] Kelo v. City of New London, 545 U.S. 469 (2005).

[22] Sutton supra note 2, at 178–79.

Read More »

A Federal Judge Pays Respect to State Supreme Courts – Hon. John K. Bush

Posted by on May 18, 2023 in Obiter Dicta, Per Curiam

A Federal Judge Pays Respect to State Supreme Courts – Hon. John K. Bush
Download PDF

A Federal Judge Pays Respect to State Supreme Courts

Hon. John K. Bush*

The following is a lightly edited version of a speech by Judge Bush at Harvard Law School on April 1, 2023, at the Harvard Federalist Society’s annual Alumni Symposium. Judge Bush delivered these remarks while speaking on a panel titled “The Rising Importance of State Courts,” which also featured Boies Schiller Flexner LLP partner Jesse Panuccio, and was moderated by Justice Gregory C. Cook of the Supreme Court of Alabama.


Thank you to the Harvard Federalist Society for hosting this wonderful symposium and for inviting me to participate on this panel. I must confess, though, that when I received the invitation, I did a double take. What do I, a federal judge, have to say about state supreme courts? I am far removed from state courts. At least $75,000 and two state citizenships, to be exact.[1] Perhaps a motion for a remand is in order.[2] But at the risk of making a federal case out of this, here goes.

Like Justice Cook, I bring more experience as a lawyer than as a judge to our discussion. I was an advocate in both federal and state courts for 27 years, before joining the bench about five and a half years ago. I was in the HLS class of 1989, which means I was a 3L when Justice Cook was a 1L. Future President Barack Obama was in Justice Cook’s class. So, I have this advice for the 3Ls here today: pay attention to the 1Ls. They may run the country someday.

As a federal circuit judge, I help manage the Sixth Circuit. But for reasons I will explain, Justice Cook has far more control over his jurisdiction, the state of Alabama, than I do mine. In fact, as I consider my federal judicial role, it seems that I am less the leader than a follower. How can that be so?

Well, on questions of fact, our court (like Justice Cook’s) generally respects the determinations of trial courts. We review lower court findings of fact for clear error.[3] And in reviewing verdicts, we do not “reweigh the evidence, reevaluate the credibility of witnesses, or substitute our judgment for that of the jury.”[4]

True enough, you might say, but what about questions of law? Don’t I have power because I review legal issues de novo?[5] That standard of review, I would submit, is somewhat of a misnomer. For even though we do not defer to district courts on questions of legal interpretation, we appellate judges do not have a completely free hand. Of course, we are bound by the text of the law. And in interpreting that text, we have two groups of bosses. On questions of federal law, my court is bound to follow the direction of the U.S. Supreme Court. And when it comes to state law, our bosses are state supreme courts. For questions of state law, my task is two-fold: to defer and to predict. If the state supreme court in charge of the law I’m applying has decided the legal issue, I must defer to that interpretation.[6] If that supreme court has not yet decided the issue, then I must predict what that court would do.[7]

So, properly understood, the role of a federal court of appeals judge is rather confined. I suspect, though, that many law students don’t think so. They may think that we are like supreme court justices because supreme court decisions are mostly all that they read in constitutional law class. And at national law schools like Harvard, the emphasis historically has been on the U.S. Supreme Court, not state supreme courts.

This educational approach, I submit, has created a somewhat shortsighted way of looking at the law—particularly state law. If one leaves law school having a primary focus on federal law, particularly as interpreted in federal constitutional cases decided by the U.S. Supreme Court, then that perspective may hamper one’s worldview. It can cause an attorney to ignore or not even be aware of viable arguments under state law.[8] And it can cause a judge to forget that state law may be a decidedly different animal than its federal counterpart. It can lead a state court to reflexively interpret a state constitutional provision to have the same meaning as the U.S. Supreme Court has given a parallel federal constitutional provision, even though the two provisions do not have precisely the same wording or history.[9] And it can lead federal judges to think they know what’s best for the interpretation of state law based on their experience with federal law. It creates the risk that federal judges will start interpreting state law not for what it is but instead for what we think it should be.

To explain, let me give some background. First, it is a bedrock principle that when it comes to the interpretation of state law, the buck stops with the state supreme court, not a federal court, not even the U.S. Supreme Court. For that principle we go back to 1874 and a case from a state in my circuit. In Murdock v. Memphis the U.S. Supreme Court declined to second guess the Tennessee Supreme Court in a state-law dispute over title to land.[10] The U.S. Supreme Court held that state court rulings on state law are not reviewable by federal courts.[11] This understanding is rooted in the text of the Judiciary Act of 1789, along with its amendments in 1867.[12]

This principle that state supreme courts control the interpretation of state law extends beyond the holding that federal courts cannot overturn a decision of a state court on state-law grounds. It also means that, even in federal cases, federal courts are to defer to state supreme courts in the interpretation of state law.[13] This comes up most frequently in diversity. In these cases, we are applying a particular state’s law, as interpreted by that state’s highest court. Consistent with the purpose of diversity jurisdiction, federal courts are involved in deciding disputes only to make sure that out-of-state litigants get a fair shake.[14] But we decide those cases always against the backdrop that state supreme courts control the interpretation of the state law we apply. This is how Federalists defended diversity jurisdiction against Antifederalist concerns about federal courts having too much power over state courts.[15]

Now, when a state supreme court has not addressed a particular question of law, we may also look to decisions by that state’s courts of appeals to see if we can reasonably forecast how the state supreme court would rule.[16] Erie v. Tompkins confirmed that the “laws of the several states” include the decisions of the state courts.[17] Sometimes, though, we lack guidance from any state court.

For new or unsettled significant questions of state law, we can—and I have argued should—certify the question to state supreme courts.[18] If the relevant state supreme court has not yet definitively resolved an important state-law issue, a federal judge’s assessment of that issue cannot escape being a forecast rather than a determination.[19] A federal court might make an inaccurate forecast and later be proved wrong if the state supreme court decides the issue the other way.[20]

Probably in response to the problem of inaccurate federal-court guesses, Florida was the first state to enact a certification procedure in 1945.[21] Today, every state except North Carolina has this option.[22] Generally, the certification process allows the state’s highest court to accept and decide questions of state law necessary to the decision of lawsuits pending in federal courts and, in some states, the courts of other states.[23] The U.S. Supreme Court recognized the procedure for the first time in 1960, has repeatedly commented favorably on it, and sometimes instructs lower courts to consider it on remand.[24]

My court had a case back in 2018 and 2019 where I argued that we should certify a novel question of Tennessee law to the Tennessee Supreme Court.[25] It was another case from Memphis, but this time a dispute over the constitutionality, under Tennessee’s constitution, of a statutory cap on punitive damages, among other things.[26] What made the panel decision so unusual was that our court struck down a Tennessee statute based on the Tennessee constitution. No federal constitutional provision was involved. I dissented from rehearing that case en banc.[27] I invited our court to establish guidelines for when a panel should certify a question.[28] I think it would be a good idea for all of the circuits to establish certification guidelines, unless and until the Supreme Court provides more guidance. This will increase predictability for litigants and prevent intra-circuit splits on when certification is appropriate.[29]

Most important, I think the judicial system is generally better off when federal courts certify more questions of state law to state supreme courts. Reluctance to certify incentivizes forum-shopping between federal and state court.[30] Also, as the U.S. Supreme Court has stressed, certification can save time, energy, and resources.[31] It helps build a cooperative judicial federalism,[32] and these concerns are especially weighty when a federal court is asked to invalidate a state’s law under a state constitution.[33]

The U.S. Supreme Court has cautioned against “friction-generating errors” that may result from federal courts construing new state laws that a state’s highest court has not reviewed yet.[34] Finally, and relatedly, the Supreme Court has indicated that we should avoid making an Erie guess that would invalidate a state law where certification makes avoidance possible.[35]

Two common objections to certification are (1) that it delays the case and (2) the possibility that the state court won’t take the case or doesn’t want to be bothered. While delay is an issue, it is more important to get the right answer after a longer process than the wrong answer done quickly. Even if a state supreme court might not accept the certified question, we still owe it to the state to give its highest court the option to be the first court to decide an important question of that state’s law. Certification is a valuable mechanism for preserving the sovereignty of state courts.[36] If a state supreme court declines to decide the certified question, it shares in the responsibility for any “friction-generating error” produced by our court’s decision.[37]

So, what is my point with this discussion of Erie and certification? It is not merely to bring back fond memories of civil procedure class. It is simply this: state supreme courts are important because, under our governmental system, they have the ultimate control over the interpretation of state law. Federal courts should not try to take this power away. We should stay in our lane.

Now I want to talk about the obverse issue: to what extent do state supreme courts have power over the interpretation of federal law? Your first response may be that, of course, state supreme courts have no such authority. Their decisions as to federal law are all reviewable by the U.S. Supreme Court, right?

That is true. But I will offer a few examples where federal courts, in fact, defer to state supreme courts in applying federal law. In fact, even the U.S. Supreme Court defers to state supreme courts sometimes when applying federal law. It happens, for instance, when federal statutory law borrows from state law.

A noteworthy example is the Federal Tort Claims Act.[38] The FTCA borrows the state tort law “of the place where the act or omission occurred,” with some modification for no strict liability or punitive damages.[39] Also, when federal law provides no rule of decision for actions brought under 42 U.S.C. § 1983, such as a statute of limitations or tolling, Congress—in § 1988—has instructed federal courts to refer to state statutes.[40]

Another example involves cases under the Armed Career Criminal Act (ACCA).[41] That statute provides for sentencing enhancements if a defendant has committed three prior violent felonies or serious drug offenses.[42] Often, these prior convictions are state crimes whose scope and details have been developed by state courts. Federal courts compare the elements of the state crimes to ACCA’s definition of a “violent felony” or “serious drug offense.”[43] We are bound by how states have defined their crimes, which sometimes means the elements will not match or be too broad to be a violent felony, even if the name of the crime sounds like it would qualify as such.[44] (An “aggravated” robbery for example, may be a violent felony in one state but not another.)  Federal courts are not authorized to expound on the particulars of these state offenses. Instead, we must determine how the state supreme court would rule.

Finally, habeas review of state criminal conviction is another important area where federal courts defer to state courts. Here again, a federal statute controls a lot of the procedures, and specifically how federal courts will defer to state courts. That statute, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),[45] requires federal habeas courts to defer to a state-court interpretation of federal constitutional law, if it is reasonable.[46] In other words, even if we think the state courts got the interpretation of federal constitutional law wrong, we deny habeas relief so long as that interpretation was within the realm of reasonableness. Determinations of factual issues by state courts are also presumed to be correct, unless the petitioner can rebut them by clear and convincing evidence.[47] In both cases, the Supreme Court has told us that if a state court does not explain its decision, federal courts should “look through” to the last related state-court decision that does provide a rationale.[48] Here again, state courts and their decisions are vital to the federal case being decided by federal judges.

In these varied areas, federal courts have long had the obligation to defer to state supreme courts in the interpretation of not only state law, but also federal law.

In recent years, state courts have again realized how large, and thus important, their role is. Maybe we have my colleague Chief Judge Jeff Sutton to thank for this, at least in part, because of the excellent books he has written on state constitutional law.[49] Of course, the legal landscape has changed also. Decisions of the U.S. Supreme Court are driving this renewed interest in state supreme courts. Cases like Dobbs[50] highlight that state courts have the final say on some of the most impactful areas of the law.

As increased attention falls on state supreme courts, there is commensurately more interest in how members of those courts are selected or elected. States choose their highest court judges through elections, appointments, and some hybrid methods. Twenty-six have some form of gubernatorial appointment, with twenty-one of these states restricting the governor to appoint from a list of candidates prepared by a commission or board, while governors in the other five states (including Massachusetts) are not so restrained.[51] In two states, South Carolina and Virginia, the legislators select the judges.[52] In the remaining twenty-two states, direct elections are held.[53] Thirteen of these states have non-partisan elections, and eight attach partisan labels. Michigan has a unique system in which candidates are chosen at political party nomination conventions, but the general election is held without partisan labels.[54] Ohio did this too until January 2022, when it switched to the partisan general elections.[55]

My home state, Kentucky, has nonpartisan judicial elections.[56] Last year, my court heard a case about two candidates who allegedly engaged in partisan conduct.[57] The panel decision found that the Kentucky Judicial Conduct Commission’s Code of Judicial Conduct rules, as applied to these two candidates in vague threats, likely violated the First Amendment.[58] Campaign materials with a generic elephant and identifying the candidates as conservative and Republican did not rise to the level of claiming to be the party’s nominee.[59] And, endorsements by pro-life groups, which did not fall within the definition of a political organization in the Code of Conduct, did not mean the candidates were committing to deciding cases involving abortion in a certain way.[60] Thus, we held, the challenged conduct and speech were likely protected by the First Amendment.[61]

Wisconsin is another state with nonpartisan elections, but its voters recently experienced an election in which judicial candidates weighed in on various issues as part of the campaign. The race featured one candidate who called the state’s legislative maps “rigged” and referred to “precedent changes” about a 2011 state law.[62] This candidate also accepted contributions from the Democratic Party of Wisconsin.[63] She ran ads disclosing her position on abortion and was endorsed by two large pro-choice groups.[64]  Meanwhile, the other candidate was endorsed by the state’s three largest pro-life groups and had historical ties to the Republican Party.[65] The Wisconsin contest ended up being the most expensive judicial election in American history to date.[66]

That state supreme court candidates have become more assertive on issues in judicial campaigns reflects a transfer in final decision-making from the U.S. Supreme Court to state supreme courts. As one of my clerks, Ross Hildabrand, and his brother, Clark Hildabrand, wrote recently, state judges may have been hesitant in the past to interpret their state’s constitution differently than analogous provisions of the federal constitution because the Supreme Court had decided it had the final say on many of the most important issues.[67] Now, state supreme courts are realizing that they don’t have to interpret their constitutions in lockstep with the federal constitution with respect to abortion,[68] and future U.S. Supreme Court decisions may return the final say on other areas to the states too.

All of these developments have made state supreme courts very consequential places. And I suspect the increasing importance of state supreme courts has influenced the career choices made by the clerks in my chambers. To be sure, the vast majority of my 21 former clerks thus far are in private practice. But there is a significant group—four of them—who have foregone or taken a sabbatical of sorts from law firms to work for state attorneys general. In fact, I have slightly more former clerks who work, or have worked, for state attorneys general than those who are assistant United States attorneys. The state-attorney-general-office option not only allows for more in-court arguments early in one’s career, but also the opportunity to work on important issues that are increasingly being decided in lawsuits brought or defended by state attorneys general. In the past few years, such cases have run the gamut, involving election law, abortion, COVID-related restrictions, and a host of other important issues.

The increasing importance of state supreme courts also highlights the need for quality attorneys to run for office in those states that elect judges or to throw their names into the hat for consideration in those states where judges are appointed. The caliber of the judiciary should be high at both the federal and state levels; otherwise, the rule of law suffers.

I encourage you to consider making it a goal to improve the judiciary in your state. Of course, I would be happy if some in attendance today ended up as my colleagues in the federal judiciary. But I would be just as happy—perhaps even more so—if some of you followed Justice Cook’s lead to serve on the state-court bench.

In closing, let me say how pleased I am that this symposium is focused on state supreme courts. For me to do my job right as a federal judge, much depends on the work of state supreme courts. We federal judges need to remember that we do not know best when it comes to the interpretation of state law. And for the law students here, while I welcome your arguments based on federal law before our federal courts, don’t forget that state law and state courts are just as important, if not more so, for the lives of most Americans.

Thank you.

* Circuit Judge, United States Court of Appeals for the Sixth Circuit. Judge Bush acknowledges the assistance of his judicial extern, Mark L. Scalzo, in the preparation of these remarks.

[1] See U.S. Const. art. III, § 2, cl. 1; 28 U.S.C. § 1332(a).

[2] See 28 U.S.C. § 1446.

[3] Cooper v. Harris, 581 U.S. 285, 293 (2017).

[4] United States v. Wesley, 417 F.3d 612, 617 (6th Cir. 2005).

[5] See, e.g., United States v. Windham, 53 F.4th 1006, 1010 (6th Cir. 2022).

[6] Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., Inc., 249 F.3d 450, 454 (6th Cir. 2001); see Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

[7] Allstate, 249 F.3d at 454.

[8] See Jeffrey S. Sutton, 51 Imperfect Solutions: States and the Making of American Constitutional Law 8–10 (2018).

[9] Id. at 174–78.

[10] See 87 U.S. (20 Wall.) 590 (1874).

[11] Id. at 627–28, 635.

[12] Id. at 630–33.

[13] Erie, 304 U.S. at 78 (1938).

[14] Lindenberg v. Jackson Nat’l Life Ins. Co., 919 F.3d 992, 995 (6th Cir. 2019) (Bush, J., dissenting).

[15] Id. at 995–96.

[16] Id. at 996.

[17] Id. (citing Erie, 304 U.S. at 78).

[18] Id. at 997 (citing Transamerica Ins. Co. v. Duro Bag Mfg. Co., 50 F.3d 370, 372 (6th Cir. 1995)).

[19] Id. at 996 (citing R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496, 499 (1941)).

[20] Id.

[21] Id.

[22] Id. at 997.

[23] Id. at 996.

[24] Id. at 996–97 (collecting cases).

[25] Id.

[26] See id.

[27] Id. at 995.

[28] See id. at 995–1002.

[29] Id. at 997, 1001.

[30] Id. at 997–99.

[31] Lindenberg v. Jackson Nat’l Life Ins. Co., 912 F.3d 348, 371 (6th Cir. 2018) (Larsen, J., concurring in part and dissenting in part) (citing Arizonans for Off. Eng. v. Arizona, 520 U.S. 43, 77 (1997)).

[32] Id. (citing Lehman Bros. v. Schein, 416 U.S. 386, 391 (1974)).

[33] Id. (citing Arizonans, 520 U.S. at 79); see Lindenberg, 919 F.3d at 1000.

[34] Lindenberg, 912 F.3d at 371 (citing Arizonans, 520 U.S. at 79).

[35] Lindenberg, 919 F.3d at 1000.

[36] Id. at 999 (citing Haley v. Univ. of Tenn.-Knoxville, 188 S.W.3d 518, 521 (Tenn. 2006)).

[37] Id. (citing Arizonans, 520 U.S. at 79).

[38] 28 U.S.C. §§ 2671–80.

[39] Id. at § 2674.

[40] 42 U.S.C. §§ 1983, 1988.

[41] 18 U.S.C. § 924(e).

[42] Id.

[43] United States v. Batey, No. 22-5339, 2023 WL 2401193, *1 (6th Cir. Mar. 8, 2023).

[44] See id.; Descamps v. United States, 570 U.S. 254, 257 (2013).

[45] Pub. L. No. 104-132, 110 Stat. 1214 (1996) (codified as amended in scattered sections of 8, 15, 18, 19, 21, 22, 28, 40, 42, 49, and 50 U.S.C.).

[46] 28 U.S.C. § 2254(d).

[47] Id. at § 2254(e).

[48] Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).

[49] Sutton, supra note 8; see also Jeffrey S. Sutton, Who Decides? States as Laboratories of Constitutional Experimentation (2022).

[50] Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228, 2284 (2022).

[51] Partisan Election of Judges, Ballotpedia, https://ballotpedia.org/Partisan_election_of_judges (last visited Apr. 18, 2023) [https://perma.cc/UW98-2NTN].

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Id.

[57] Fischer v. Thomas, 52 F.4th 303 (6th Cir. 2022).

[58] Id. at 310.

[59] Id. at 310–12.

[60] Id. at 312–13.

[61] Id. at 310–13.

[62] Editorial Board, Wisconsin Supreme Court Race Shows Folly of Electing Judges, Wash. Post, Mar. 29, 2023, https://www.washingtonpost.com/opinions/2023/03/29/wisconsin-supreme-court-judge-election/ [https://perma.cc/XSR3-USAY].

[63] Richard J. Epstein, Wisconsin Court Candidates Clash Over Abortion and Democracy, N.Y. Times, Mar. 21, 2023, https://www.nytimes.com/2023/03/21/us/politics/wisconsin-supreme-court-debate.html [https://perma.cc/4XCQ-35DC].

[64] Id.; see also Editorial Board, supra note 62.

[65] Editorial Board, supra note 62.

[66] Epstein, supra note 63.

[67] Clark L. Hildabrand and Ross C. Hildabrand, Who Decides? Depends on What the Federal Government Allows, 2022 Harv. J.L. & Pub. Pol’y Per Curiam 2, *5–7 (2022).

[68] For example, South Carolina’s Supreme Court held, earlier this year, that its state constitutional right to privacy is implicated when a woman gets an abortion. Planned Parenthood S. Atl. v. State, 438 S.C. 188 (2023), reh’g denied (Feb. 8, 2023).

Read More »

The Constitution after Covid – Justice Jimmy Blacklock

Posted by on Apr 3, 2023 in Obiter Dicta, Per Curiam

The Constitution after Covid – Justice Jimmy Blacklock
Download PDF

The Constitution after Covid

Justice Jimmy Blacklock*

The following speech was delivered to the University of Chicago Law School’s Federalist Society chapter on February 8, 2022. 

* * *

I’ll start with a quote from a white paper issued by McKinsey and Company in May 2020:

It is increasingly clear our era will be defined by a fundamental schism: the period before COVID-19 and the new normal that will emerge in the post-viral era: the “next normal.” In this unprecedented new reality, we will witness a dramatic restructuring of the economic and social order in which business and society have traditionally operated. And in the near future, we will see the beginning of discussion and debate about what the next normal could entail and how sharply its contours will diverge from those that previously shaped our lives.[1]

You probably remember all the talk about the “new normal” back then. The idea that Covid ushered in a new normal was a very stylish way to talk for a while. The phrase was on the lips of all the mainstream opinion-makers in our culture. The media, business leaders, government bureaucracies, the non-profit world, even the commercials on TV all seemed to be singing from the same songbook, as curiously they so often do.  Two years later, I don’t hear about the new normal as much. And there are a couple of reasons that might be.

It could be that after the initial shock of the early stages of the pandemic, Americans demanded not a new normal but a return to the old normal. And so maybe the reason you don’t hear about the new normal anymore is because we rejected it. They pitched the idea as hard as they could, but we didn’t buy it—and we’re headed back to where we were. But it could also be that you don’t hear talk about the new normal these days because we’re already living in it. It’s already replaced the old normal. Perhaps what was called the new normal in the spring of 2020 has become just plain normal today.

And if it’s true, as McKinsey and Company thought, that we will witness or have witnessed “a dramatic restructuring of the economic and social order in which business and society have traditionally operated,”[2] then you’d expect we’d witness a similarly dramatic restructuring of our legal order. So have we? Have we entered a new era in constitutional law? And more important than the descriptive question of the extent to which Covid has already changed our legal culture is the prescriptive question: should it change our legal culture? Should we let it? Do you want Covid to bring about a dramatic restructuring of our constitutional order? And if you don’t, what are you going to do about it? These are the questions I’d like us to think about together today.

We’re now almost two years removed from the onset of the coronavirus crisis. The previously unimaginable government interventions that swept the country in the spring of 2020 have subsided. I will say that coming from Texas—where my only daily reminder of Covid is the handful of people who still choose to wear a mask at the grocery store—to Chicago—where many of your civil rights depend on your vaccination status—is a bit of a culture shock. But while government Covid restrictions aren’t vanishing at the same rate all over the country, they do seem to be on a downward trend almost everywhere. Life, in much of America, is pretty much back to what you might call “normal.”

And as life seems to get back to the old normal in many ways, it’s tempting to think that the law will naturally follow suit, and to think maybe we can just put 2020 in the memory hole and carry on as if nothing has changed, as if everything is, well, normal.

But lest we forget, there was absolutely nothing normal about the government ordering American citizens to stay in their homes unless they had an approved reason for leaving. There was nothing normal about the indefinite elimination of the right to peaceably assemble. There was nothing normal about the government ordering houses of worship to close their doors. And there was nothing normal about all of this being done not by legislation but by executive branch officials using unilateral emergency powers.

Given everything that’s happened in our country over the last two years, there has never been a more important time—certainly in my lifetime at least—for us as lawyers and judges to do some serious thinking about our commitment to our Constitution. Among the many concerns motivating our government’s response to Covid, preservation of constitutional rights has not seemed to be very high on many people’s priority lists. As a legal community—and more broadly as a People—we need to confront the wreckage of the last two years openly and honestly. We need to reckon with what happened, and we need to decide what kind of government we want to pass on to the next generation.

I’d like to focus briefly on the question of religious liberty during Covid because it’s one of the starkest examples of previously unthinkable government action that came and went during 2020 and that we as lawyers and judges need to reckon with. It’s of course the very first freedom enshrined in our Bill of Rights, and religious liberty is the reason that so many of our ancestors immigrated to America, whether it was the Pilgrims four hundred years ago or many people from all over the world much more recently.

Given the First Amendment, and given our nation’s history and traditions, many people I’ve talked to—and here I think of my parents, who were raised going to church every Sunday and raised me that way—could never have imagined that the forced closure of churches on a mass scale would ever happen in this country. That’s the kind of thing that might happen in Russia or China, but not here. Maybe if there was a really bad contagious disease going around, almost everybody would choose to stay home from church, but surely the government in America can’t close the churches’ doors against their will.

But it did. And in terms of the legal rationale for it, a lot of people pointed to the Supreme Court’s decision in Jacobson v. Massachusetts[3] from over one hundred years ago which upheld compulsory smallpox vaccination, and they said, essentially, Jacobson means the government can do whatever it thinks is necessary to protect public health in a pandemic. But Jacobson involved compulsory vaccination, and as controversial as that topic may be, there’s no explicit provision in the text of the Constitution protecting people against compulsory vaccination. Without pre-judging the constitutionality of compulsory vaccination, we can all agree that the text of the Constitution doesn’t mention vaccines. There is no anti‑vaccination clause. But there is a Free Exercise Clause, and there is a right to peaceably assemble, although you might not have known it from the way our governments have behaved. My own view—which I’ve expressed in writing[4]—is that courts should very strictly scrutinize pandemic measures that interfere with rights afforded by our state and federal constitutions. If that’s not the case—if the rule is instead that courts should defer to governors, mayors, and public health authorities when they decide it’s not safe for people to gather to worship, to protest, or to simply be with their families and friends—then it seems to me we don’t actually have a right to religious liberty or a right to peaceable assembly. We have only privileges, which we can exercise only when the government thinks it’s safe for us to do it. Of course, the whole point of having a right to something is that you get to do it even when the government thinks you shouldn’t.

I mentioned the Pilgrims earlier. I’m right now reading out loud an American history book to my children in the evenings, and I’ve been struck—as I am every time I think about early American history—by the extreme hardships endured by the early settlers: disease, starvation, drowning at sea. And time after time, in the story of each new colony that was carved out of the wilderness, we read that the reason they endured those unspeakable hardships was so they could worship God freely in the New World.  Benjamin Franklin famously said, “Those who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor safety.”[5] The people who founded this country gave up their safety entirely in the relentless pursuit of liberty. The tension between liberty and safety that we’ve experienced during Covid is nothing new. It’s an intractable question that every generation has to confront. What’s new, perhaps, is the overwhelming preference for safety over liberty that so many powerful institutions in our society demonstrated during Covid. But the question itself—should our government prioritize our liberty or our safety—is among the oldest political questions around.

I use the word “political” intentionally. No public health official or scientist can dictate to a self-governing people how to strike the right balance between safety and liberty in the face of a contagious disease. We the People of this country have the right and the responsibility to answer that question, and we do so through politics. Politics shouldn’t be a dirty word. Politics is a wonderful thing! It is the way a free people shapes its own destiny. It is a precious heritage we have inherited from people who faced hardships we can’t even imagine so that we could rule ourselves through politics, instead of being ruled by unaccountable authorities like kings or so‑called experts. What a blessing it is to be able to resolve our disagreements peaceably through politics, rather than to be dictated to by unaccountable government power exercised in the name of “science.”

We often hear people bemoaning how Covid quickly became “so political.” I think often they’re really complaining about the distasteful personalities involved—or the rancorous and vindictive way we conduct public debate these days—when they complain about things getting too political. That’s understandable. But sometimes what people seem to be saying—and this is really a dangerous idea—is that our response to Covid shouldn’t be political; it should be scientific. They contrast politics and science; they cast politics as dirty and inefficient, and science as pure, noble, and effective. And they chastise us to “Follow the Science.”

There are at least two enormous assumptions in the “Follow the Science” mantra. First, of course, is the assumption that government scientists are capable of accurately understanding the disease and coming up with effective means of combatting it through government policy. Whether that’s a valid assumption is a big topic I don’t want to get into. But let’s just assume it is valid. Even if we assume the government could stop Covid or any other disease if it wanted to, you have to make another assumption before you’d agree that government policy should just “Follow the Science.” You’d have to assume that reduction of the transmission of the disease is the highest and best value to be pursued and that all government policy should pursue that value at the expense of all other values. You’d have to assume that our government should value our safety far more highly than it values our liberty. But that value judgment is itself political. You’ve assumed away the biggest, most important question, a question that a free society can only answer by politics: How willing are we to give up our ancient liberties for the chance we might reduce the impact of a respiratory virus or of any other threat to our safety?

There’s a lot more to this wonderful life than just staying alive. How do we put a value on that? A free people, a sovereign people, would answer these questions of competing values for themselves and then instruct their government to behave accordingly. An unfree people, a subject people, must accept the answer dictated to them by those in power and then helplessly endure whatever hardships the government imposes on them. Which of those descriptions—the sovereign people or the subject people—better describes us over the last two years? It’s a mixed result, I’d say. But there are signs of the sovereign people reasserting themselves.

Last fall, in November of 2021, the People of Texas decided to dictate to their government, rather than the other way around. They chose not to leave it up to scientists or judges to decide whether they can worship as they choose the next time the WHO or the CDC declares a pandemic. They took matters into their own hands by exercising their sovereign right to amend their state constitution. They’ve now added the following provision to their Bill of Rights:

Sec. 6-a. This state or a political subdivision of this state may not enact, adopt, or issue a statute, order, proclamation, decision, or rule that prohibits or limits religious services, including religious services conducted in churches, congregations, and places of worship, in this state by a religious organization established to support and serve the propagation of a sincerely held religious belief.[6]

The adoption of this amendment—this direct rejection by the People of Texas of a pandemic measure they never want to see again—reflects something very healthy, which is that the people are still very much in charge, when they decide to be.

So—before I close, let’s return to where we started—are we already in a new normal? The People of Texas have certainly said the answer is no, at least when it comes to government restriction of religious services. But of course, there are many other ways the world around us seems to have changed over the last few years and continues to change, and now I’m not talking just about Covid. We need to ask ourselves: will we accept these things as the new normal, or will we—as our forefathers did—boldly pursue liberty even in the face of danger? That’s a question each of us has to answer for ourselves. And depending on your answer, there may be a price to pay for standing up for what you believe to be true. Some of you have probably already experienced that. I want to assure you that, at forty-one years old, I have no regrets about any of the times I have stuck my neck out and stood for the truth. My regrets are the times I had the chance to take that risk but chose the safety of silence instead.

You are a group of brilliant young people, with boundless possibilities in front of you. You’re here at this university because you have the raw materials required to be the kind of person who doesn’t just float through life seeking money and pleasure but who helps shape the destiny of your country.

I want to share with you a quote from Abigail Shrier, who was a classmate of mine at Yale Law School. This is from a speech she gave to students at Princeton, which you can find online:

You who are studying at one of the greatest academic institutions in the country only to be told that after graduation, you must think as we tell you and recite from this script—why were you born? What’s the point of being alive? Computers are vastly better at number crunching. They’ll soon be better at all kinds of more complex tasks. What they cannot do is stand on principle. . . . What the computer cannot know is the glorious exertion of the human will when it refuses to truckle in the face of lies and instead publicly speaks the truth.[7]

There’s a different kind of wilderness out there today than the physical one the Pilgrims faced.  It’s a wilderness of lies, and it can be just as unforgiving, in its own way, as the physical wilderness our ancestors confronted. In the face of that danger, will you seek the safety of silence? Or will you confront the darkness of the wilderness with the light of truth? Will you accommodate yourself to the new normal? Will your lips repeat things your heart knows are false—things about what is good and true and beautiful in this world, things about the history of this extraordinary country of ours, things about our human nature as men and women—things the world wants you to say but that your conscience tells you are lies? Again, the old conflict between safety and liberty shows itself. There is great safety in accommodating yourself to fashionable opinion. The people at McKinsey who wrote the paper I started with want to hear you say certain things—things that are easy to say but that just aren’t true. You may make more money that way. You may be held in higher esteem by those whose opinions appear to matter most in our society. You may avoid the risks of social conflict and even ostracism that come from standing for the truth in a wilderness of lies. But at what cost? What kind of a life is that? A life spent suppressing the divine spark that lights the fire of truth within you?

No. We are the inheritors of a glorious tradition of liberty and limited government, passed down to us by people who faced dangers beyond our wildest dreams so that we could live today in this beautiful land of abundance and freedom. As with every generation, it is our responsibility to do what needs to be done now—whatever the cost to ourselves—to ensure that our children and our children’s children will enjoy those same blessings. So what will we do? What will you do? Whatever it is for each of us—writing, speaking, working in government, or just raising a family or being a good friend—let us speak the truth. Let us do it boldly. Let us be worthy of the generations who came before us.  And let us, with God’s help, pass the test that our Founding Fathers laid down as the measure of each generation. Let us “secure the Blessings of Liberty to ourselves and our Posterity.”[8]

That’s all I have. Thank you.

* The Supreme Court of Texas.

[1] Kevin Sneader & Shubham Singhal, Beyond coronavirus: The path to the next normal, McKinsey & Company (March 23, 2020), https://www.mckinsey.com/industries/healthcare-systems-and-services/our-insights/beyond-coronavirus-the-path-to-the-next-normal.

[2] Id.

[3] 197 U.S. 11 (1905).

[4] In re Salon a la Mode, 629 S.W.3d 860 (Tex. 2020) (Blacklock, J. concurring in the denial of mandamus relief).

[5] Pennsylvania Assembly: Reply to the Governor, 11 November 1755, Founders Online, https://founders.archives.gov/documents/Franklin/01-06-02-0107 (last visited Mar. 6, 2023).

[6]  Tex. Const. art. I, § 6-a (2021).

[7] Abigail Shrier, What I told the students of Princeton, The Truth Fairy, (Dec. 8, 2021), https://abigailshrier.substack.com/p/what-i-told-the-students-of-princeton.

[8] U.S Const., pmbl.

Read More »

Eulogy for Holden Tanner – Justice Jimmy Blacklock

Posted by on Jan 10, 2023 in Obiter Dicta, Per Curiam

Eulogy for Holden Tanner – Justice Jimmy Blacklock
Download PDF

Eulogy for Holden Tanner

Justice Jimmy Blacklock*

The following eulogy was delivered at Holden’s funeral on Sunday, March 20, 2022, at the First Baptist Church of Pearland, in Pearland, TX. Footage of the funeral service, including this eulogy, can be accessed at https://www.youtube.com/watch?v=cakUzk3LRyk.

* * *

I need to begin by expressing my deepest gratitude to Holden’s dear wife Stephanie, and to his loving parents, Patty and John, for giving me this opportunity, this great privilege, to be able to share these words with you—in honor of my law clerk, my friend, my brother in Christ, Holden Tanner.

I hired Holden to be my law clerk at the Texas Supreme Court without meeting him at all! All I needed to see was his resume. I was partial to Holden’s resume because it was so much like mine: raised by a Christian family not far from Houston, an undergraduate degree from a state school in Texas, then Yale Law School, with plans to come back to Texas for a judicial clerkship. On paper, we had a lot in common. Unlike me, Holden had gathered all these credentials after being homeschooled—and that part of his background assured me that he came from parents who sacrificed their own comfort and convenience to try to raise up a faithful and virtuous young man. All of us who knew Holden would agree that, with God’s help, his parents did exactly that. We must all thank the Lord first for the blessing of our time with Holden—but we should also give thanks to Holden’s parents and his wife Stephanie for helping to make him the man he was.

Judges compete with each other to attract the best law clerks, and I knew Holden was the kind of student I needed to scoop up quickly before somebody else beat me to it. So, I hired Holden the day I got his resume—after a quick telephone interview—for a clerkship that wouldn’t start for another couple of years.

Little did I know when I hired “The Holden Tanner of the Sterling Resume,” that “The Holden Tanner of Flesh and Blood” would walk in the door and exceed my wildest dreams! Holden was a brilliant, hard-working, extraordinarily well-read, sensitive, generous, and very principled young man. It does not do him justice merely to say—as is true—that he was as talented as any law clerk I could ever hope to have. To talk of Holden Tanner merely as a law clerk is not nearly enough. Holden was one of the most extraordinary men I have ever known—a talented lawyer, yes, but also a philosopher, a theologian, a political theorist, a writer, an artist at heart—and a far better lawyer because he was also all those other things. More important than all that—Holden Tanner was a man after God’s own Heart. Working with him made me a better judge, and knowing him made me a better person.

Holden was really in his element at the Texas Supreme Court—a place where the life of the mind comingles with the affairs of the state. His presence at the courthouse was larger than life. His bellowing laughter rang down the hallways, full of joy for his work and love for his colleagues. His many talents were on full display at the Court. His intellect—sharpened over the years by untold hours of quiet reading and reflection—jumped off the pages of everything he wrote. His good moral judgment—the product of his upbringing and his faith—deepened and strengthened his understanding of the law. But perhaps what impressed me most about Holden was his passion—his relentless drive—to know and to speak the Truth.

Holden devoted himself tirelessly to the improvement of the law through the pursuit of the Truth—with a capital T. Holden saw the Law and the Truth as very closely connected. Like the Founders of our nation, Holden believed that our system of laws should be informed by the natural law, a higher source of law that comes not from fashionable opinion—but from a mature knowledge of our human nature as fallen beings, created in God’s image, who owe each other certain moral obligations. Holden believed that good legal rules begin as moral rules, and he believed that morality is an objective truth we can know, not an opinion we can choose.

Natural law, in Holden’s words, “reminds us that law is an institution with a purpose: to proscribe evil, protect virtue, and promote human flourishing. It holds that law, as a system of obligations, is a subset of morality. Natural law upholds the moral worth of the individual.”[1]

Holden worked as hard as anyone I have ever worked with, and he did it in passionate pursuit of the Truth. He counseled me on case after case; he frequently volunteered to delve deeply into cases I had not even assigned him; and he helped me write opinions of the Court. His words, his ideas, are now part of Texas law because of his fine work on some of those opinions, and Texas is better for it. In the midst of all that work for me, he also wrote scholarly law review articles in his spare time that will be read and cited by other influential thinkers for years to come.

He did all of this graciously, joyfully, and selflessly. It was very clear to me that the reason he worked so hard was not to accumulate riches or accolades for himself; he didn’t do it for himself. He did it for love. He did it because he loved God, he loved his family, he loved his neighbor, and he loved his country. He dreamed not of money or power for himself. Instead, his dream was that his children and his children’s children would live in a world governed by the Truth, not by lies.

In addition to using his talents as a thinker and a writer to promote the Truth through the law, Holden boldly spoke the Truth every time he had the chance. You rarely had to ask for his opinion, but you were eager to hear it because you knew it came from a reliable and well-informed source.

Our world today, despite all our modern technology and conveniences, can sometimes feel spiritually like a barren wilderness, a wilderness of lies and half-truths about what is really good, true, and beautiful in this wonderful life God has given us. Holden was like a torch in the wilderness, a light in the darkness of this world. A bright light. And he did not hide his light under a bushel.

There are many different ways to respond to the lies the world tries to tell us. One way is to seek the safety of silence, to accommodate ourselves to the lies we hear all around us, to tell ourselves that maybe the lies aren’t really so bad, perhaps even to repeat with our own lips things we know to be lies—just to get along or avoid trouble.

Another way to respond to the lies of this world was Holden’s way. To boldly proclaim the Truth to all who have ears to hear it. To feel the divine spark within you lighting the fire of Truth—and not to hide it because you’re afraid of what people will think about you, but to let it shine for all to see. To stand boldly for the Truth like a prophet in the wilderness. That’s what I saw Holden Tanner do—with every breath of life God gave him.

And do you know what happened? Was he reviled or scorned or cast out for standing firmly for what he believed? Not that I saw. Quite the opposite, in fact. Holden was loved by everyone at the Court, especially by all the other law clerks, many of whom probably didn’t agree with a word he said. Yes, he stood firmly for the Truth, but he did it in love. He did it with a tender and genuine spirit that made it impossible for those who disagreed with him to also dislike him.

C.S. Lewis, in his timeless classic, The Abolition of Man,[2] wrote that modern education—which tries to deconstruct and demystify the ancient heritage passed down to us by our ancestors—was creating a generation of “Men Without Chests.” These Men Without Chests lacked the confident moral judgment necessary to act virtuously. These Men, Lewis thought, would be particularly susceptible to modern fads and propaganda because they lacked a firm grounding in objective moral truth rooted in tradition and faith. Holden Tanner, ladies and gentlemen, was no such man. C.S. Lewis, I am confident, is going to absolutely love Holden Tanner when they meet each other in the presence of God!

Holden Tanner was a Man With A Chest. A big one. He stood for the Truth in a wilderness of lies. He defended the Faith that was his heritage and his hope. He stood for eternity in an age of forgetfulness. It was my great honor to stand beside him, even for a brief time.

Holden cannot be replaced, but we can remember him and honor him by ourselves lifting up the torch of Truth, spoken in love, which Holden carried so boldly and so well. To his parents, his wife Stephanie, his precious children Alex and Cordelia: you should be very, very proud of this great soul through whom God blessed us all so mightily—my dear friend, Holden Tanner.

Let me end by telling you that I know from multiple conversations with Holden that his hope was in salvation through Jesus Christ and that he firmly believed that when his time on Earth was through, the Lord would take him to his eternal home. Holden’s hope, I know, for each of us, is that by faith we would all be reunited with Holden—and with all those who have gone before him—in God’s presence, when our time has come.

The Lord gave, and the Lord hath taken away; blessed be the name of the Lord.[3] Amen.


* The Supreme Court of Texas. Holden Tanner clerked for Justice Blacklock in 2021–22.

[1] Holden T. Tanner, How to Recover Conservative Judging, Law and Liberty (August 24, 2021), https://lawliberty.org/how-to-recover-conservative-judging/.

[2] C.S. Lewis, The Abolition of Man (1943).

[3] Job 1:21 (King James).

Read More »