Give a critical mouse a Supreme Court ethics code and it’ll ask for a glass of milk. Is that how the saying goes?

This week the Supreme Court issued its first public code of conduct. Facing increasing accusations that the justices are too cozy with political organizations and billionaires, and in response to the misunderstanding “that the Justices … unlike all other jurists in this country, regard themselves as unrestricted by any ethics rules,” the Court released eight pages reflecting what it had long adhered to internally.

The code covers what you’d expect: resisting outside influence or the appearance of outside influence, recusal guidelines, and participation in extrajudicial activities (i.e., no fundraising, no political activities, no promoting commercial products). For two recaps of the code, see here and here.

The guidelines make good sense and no one seems to object to the substance. But critics had objections nonetheless, quickly pointing out that there was no way of enforcing the code. Instead, the justices are expected to comply or presumably face the private wrath of Chief Justice John Roberts. This led some to insist, once again, that Congress must step in and pass its own standards and impose some form of accountability on the Court.

If people are truly concerned with the Court’s credibility or impartiality, that seems like a very bad idea. Making the justices attend histrionic and performative congressional hearings would be disastrous for the Court’s image. And even if the hearings were administrated by lower court judges rather than legislators, it would mean dragooning those judges into an often politically motivated process. For more about the difficulties and dangers of creating an enforcement mechanism, here’s an entire article about it.

But there’s another reason to be wary of congressional action: it’s not even clear Congress has the authority to pass an ethics code for the justices in the first place. While the Court currently abides by disclosure requirements applicable to other judges and government employees, the justices have made clear they do so voluntarily, not because they think they’re bound. Arguably, they’re not.

There’s nothing in the Constitution explicitly authorizing Congress to pass such a code. Under Article III, Congress can set the number of justices and modify their pay (though it can’t reduce their salaries while the justices are in office, which reinforces the Constitution’s expectation that the judiciary will enjoy independence from Congress).

Article III also states that the Supreme Court “shall have appellate Jurisdiction” over certain matters “both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make” (emphasis added). Some say this provision empowers the legislature to write binding ethics rules. But it can’t mean that Congress has plenary power over the Court’s internal operations because such an interpretation would lead to separation of power concerns. Instead, the language would seem to empower Congress to determine the nuts and bolts of how cases get to the Court. And in fact, it would be odd if the provision permitted Congress to pass an ethics rule for cases that arise under the Court’s appellate jurisdiction since those rules would not apply to cases arising under the Court’s original jurisdiction.

There are also some practical difficulties. Let’s say Congress tried to directly impose a binding ethics code on the justices. Any questions over the code’s constitutionality would go to … well, the Supreme Court, which could result in something of a crisis (or at least a chess match). What would happen if the Court refused to comply? Congress could retaliate by limiting its jurisdiction. Or, if it had good enough reason, it could try to impeach. But the very effort would start a game of constitutional chicken, which would not be great for the stability of our institutions (or judicial independence).

Before people who purport to care about the Court’s legitimacy throw the institution into a full-blown crisis, it’s worth noting that no serious observer of the Court actually thinks the justices are being bought and sold. No one has even attempted to point to a case where they think a justice has compromised his or her vote out of loyalty to some third party.

The idea that someone like Justice Thomas, who is well-known for his consistent judicial philosophy and readiness to dissent rather than compromise his principles, is trading his vote for a ride on a private plane is preposterous. In fact, the man said to be “buying” him, his close friend Harlan Crowe, doesn’t even have business before the Court. Crowe is also openly pro-choice, meaning the justice is doing a very poor job of acting as his proxy.

Similarly, while Justice Alito has been criticized for failing to report he took a private plane chartered by “Republican megadonor” Paul Singer, Singer had no business before the Court at that time. Since then, the Court has repeatedly turned down Singer’s company’s request to take up its case, and, in the one case it did, the Court voted 7–1 in his favor. Also, Singer has spent millions trying to legalize same-sex marriage, complicating the narrative.

The accusation isn’t that the justices are changing their votes in exchange for luxury travel; it seems to be that they are flouting disclosure rules and thus “see themselves as above the law.” But there’s a serious argument that travel costs qualify for the personal accommodation exception to the disclosure rules. And lest we forget, justices nominated by presidents from both political parties have had their travel paid for by others to get to events. Even colleges have offered to use private planes to transport the justices.

In other words, there’s a lot of simplification, obfuscating inconvenient facts, and selective amnesia going on (see: colleges paying $100,000+ for books signed by Justice Sonya Sotomayor, or the justice failing to disclose travel payments or to recuse from a case involving her publisher). One begins to wonder whether the accusations, most often directed at “conservative” justices, aren’t intended to destabilize the Court rather than rehabilitate it.

The same goes for the accusations that the justices are “fundraising” for “political causes.” There’s been a lot of hand-wringing over the justices’ appearances at Federalist Society events. But the Federalist Society neither lobbies nor litigates, and it’s no more political than the American Constitution Society, which has hosted events for justices on the other side of the bench.

Calling either of these organizations political erroneously conflates judicial philosophy with partisan politics. And most, if not all, of the justices regularly appear at colleges, which themselves have become political. University officials routinely use the justices’ appearances as fundraising opportunities for large donors.

The complaint seems to be that the justices attend or speak at events that are also attended by wealthy people who donate to political causes. Well, of course, they do. The justices went to elite schools and had elite careers. It’s no surprise they run in high-powered social circles and are sought-after speakers at high-profile events. And it’s no surprise that the host institutions (including colleges) use these appearances as fundraising opportunities, even if the justices are not engaging in fundraising themselves. So yes, the institutions are very glad to advertise their events to donors. And yes, some of those donors will also donate to political causes. None of that means that the justices are unable to perform their duties impartially or are engaging in political or fundraising activities themselves.

We can squabble over whether the “gifts” (Crowe buying Justice Thomas’s mother’s house for future use as a museum, RBG receiving a large monetary award and donating it to charity) were “gifts” subject to disclosure rules or whether they truly raise the specter of impropriety. My own opinion is that most of the accusations are overblown and that most of these things (private travel to events, trips with close family friends) are different than gifting someone a Rolex. That being said, there are cases where I think the justices should have disclosed or perhaps, in their better judgment, refrained.

Still, it’s important to recognize the difference between the judiciary and the legislative branch, which presents a far greater opportunity for corruption. Law is simply not like politics. Politicians wield a far more dangerous power than judges. Politicians pass laws that directly threaten liberty; judges pass judgment on the constitutionality of those laws. Politicians have nearly unlimited opportunity to vote on measures directly affecting our everyday lives and can do so arbitrarily or self-interestedly without anyone knowing because they vote on omnibus bills that hardly anyone reads. There are simply too many bills to keep track of, and there’s less political accountability than ever now that Congress outsources a lot of its work to the administrative state.

Legal interpretation, by contrast, is limited and transparent. The justices only take a handful of cases a year (fewer than ever), engage in open oral arguments, and write lengthy opinions justifying their decisions. Unlike the frequent and accepted vote-trading that goes on between politicians, it’s quite clear when judges are compromising their long-held principles. Judging doesn’t present the same opportunity and danger as the political branches. And to the extent that Congress is concerned about the Court, well, you know that saying about people in glass houses.

The point is, if we are concerned about legitimacy, we should be thoughtful about how we characterize the Court and the remedies we suggest. That’s not to say the rules cannot be improved or clarified or that the justices can’t do better. It’s only to say that the current state of the debate has the potential to do more damage to the Court than bolster it.

A new Government Accountability Office report on the Biden administration’s student debt cancellation bonanza, which was struck down by the Supreme Court in June, says the administration was doing too little to protect taxpayers:

Education developed two processes to assess borrower incomes and account for fraud risks, but did not implement key procedures to further identify and prevent potential fraud. For example, the department approved millions of applicants before fully implementing processes to review and evaluate fraud risk, such as collecting income information from the other borrowers it had selected for verification or assessing the borrowers it had approved. In addition, the department automatically approved some borrowers based on self-reported data, without conducting any additional assessment of borrower risk.

This sounds like an administration in a hurry, which is certainly how the cancellation felt. After a year and a half of reaching no conclusion about mass cancellation, on August 24, 2022, Biden declared that he was good to go. By mid-October, as various groups scrambled to mount a legal defense against the unconstitutional $430 billion action, the Department of Education started taking—and approving—applications.

In response to the GAO, the Department says it did enough to block fraud, and would have done more had a court—perhaps unexpectedly—not issued an injunction against the cancellation effort. The administration says it knew who the vast majority of applicants were, so the fraud threat was minimal. To this, GAO responded that even if a small share of applications were fraudulent, that could still seriously add up in a $430 billion action. It is also a little hard to feel assured that the Education Department really knew all about its borrowers, since a 2022 GAO report found that the department had major record-keeping problems. Indeed, that incompetence is part of the justification for $39 billion in cancellation the Biden administration recently declared.

This is all part of a larger pattern of the Biden administration canceling student debt left and right in ways largely inscrutable to the public and, at least in some cases, almost certainly unconstitutional. Indeed, the same day the Supreme Court declared Biden’s jubilee unconstitutional, the president announced his administration had “finalized” a new, very generous repayment program. No act of Congress—the people’s representatives. Just Biden begetting a repayment plan expected to cost taxpayers $475 billion over ten years. Meanwhile, other repayment-easing endeavors are working through heavily biased regulatory procedures.

The new GAO report highlights the dangers that were in Biden’s gold rush for student borrowers. But more broadly, it helps illuminate the reality of policymaking unmoored from basic constitutional processes: the diffuse people who will pay the costs—taxpayers—are afterthoughts.

We have two kinds of political speech, the rhetorical and the responsible. Those who speak responsibly make concrete arguments and proposals that look to the ethics and consequences of what should be done. More often speakers engage in empty rhetoric that reveals and burnishes a politician’s brand without proposing anything real or engaging an opponent seriously.

Consider Senator Josh Hawley (R‑MO), who recently attacked the Supreme Court’s decision in Citizens United. The Senate majority leader, Mitch McConnell, has been a consistent critic of campaign finance “reform” and an ardent defender of the First Amendment regarding campaign finance. Senator Hawley, in contrast, styles himself as a “populist” who opposes “the Establishment” and “the elites” and so on. Like every person favoring restrictions on the funding of political speech, Hawley favors “the people” against “Big Money.”

Does he really? Consider the concrete circumstances of the Citizens United case. A small number of people incorporated themselves as the “Citizens United” to engage in electoral advocacy. They made a film that harshly criticizes a leading Democratic politician, Hilary Clinton. At that time, it was plausible to think such incorporated groups were prohibited from spending money on such films. 

If Hawley had his way when Citizens United was decided, the strong criticism of Ms. Clinton would have never been seen by anyone; it would have been censored by the government. If Hawley had his way now, the harsh criticisms of leading politicians by incorporated groups of individuals would also never be seen. 

Sometimes political rhetoric undermines its speaker. Hawley’s rhetoric on Citizens United reveals him to be the best friend the Hilary Clintons of the world ever had. Sounds like Senator Hawley is real populist to me!

Newspaper headlines proclaim that President Biden has issued a “massive, sweeping, wide-ranging” executive order on artificial intelligence. And no one seems to be saying that whatever the content of the order is, “massive, sweeping, wide-ranging” regulations should not be issued by one man. 

President Biden, members of Congress, and the judiciary should take a look at the White House’s own website, where they would read: “Under Article II of the Constitution, the President is responsible for the execution and enforcement of the laws created by Congress.” Not to make the laws, but to execute and enforce them. If AI needs government attention, it should come from Congress.

Biden is not the first president to believe that his office was invested with kingly powers. Both President George W. Bush and President Barack Obama used executive orders to grant themselves extraordinary powers to deal with terrorism. Lawmaking by the president, through executive orders, is a clear usurpation of both the legislative powers granted to Congress and the powers reserved to the states.

Clinton aide Paul Begala once boasted: “Stroke of the pen, law of the land. Kind of cool.” President Obama declared: “We’re not just going to be waiting for legislation.… I’ve got a pen, and I’ve got a phone, and I can use that pen to sign executive orders and take executive actions and administrative actions that move the ball forward.” President Donald Trump upped the ante: “I have an Article II, where I have the right to do whatever I want as president.”

One of the great concerns of the Founders was to rein in executive power. Thus they wrote a Constitution to divide and limit the powers of all elected officials. But they thought that each branch would be jealous of its own authority and would not tolerate a usurpation of its power by the other branches. Somehow Congress and the courts have lost their taste for conflict with the executive. 

No matter what agenda the president seeks to impose by executive order, Congress should stop him. The body to which the Constitution delegates “all legislative powers herein granted” must assert its authority. In a constitutional republic, one man should not have kingly powers — and the Constitution doesn’t grant them to him. 

Over the last few years, there has been a surge in challenges to books in public school libraries. These “banning” battles have drawn considerable attention – and alarm – but they miss deeper questions: How do public schools select books in the first place, and do they offer a balance of opinions on controversial issues?

Findings in a Cato Policy Analysis released today, “Are Public School Libraries Accomplishing Their Mission?” suggest that public schools do not tend to stock a balance of views, but lean, perhaps strongly, to the left.

To test whether public school libraries carry balanced viewpoints, we randomly selected 200 “regular” public school districts (no charter schools or special districts) and looked for eleven titles in libraries serving middle and high schools. We selected books seeking a balance of views on race and the fundamental nature of American society.

Basically, is the country grounded in liberty and equality, or has it always suffered from systemic racism?

As the figure above shows, we were far more likely to find titles that suggest the country suffers from systemic racism – books in the Stamped series by Ibram X. Kendi, and Ta-Nehisi Coates’s Between the World and Me – than books that take issue with the thrust of Kendi’s and Coates’s arguments, or that present the United States as fundamentally good.

The titles directly addressing the kinds of arguments put forth by Kendi and Coates are Woke Racism by John McWhorter and Cynical Theories by Helen Pluckrose and James Lindsay. Books in the Rush Revere series by Rush Limbaugh represent the view that the United States is fundamentally good.

Far more schools had libraries that made the Kendi and Coates books available than the others. Especially stark was that almost 40 percent of schools with searchable libraries – 135 total – had access to Stamped: Racism, Antiracism, and You, but less than 1 percent had access to Woke Racism or Cynical Theories. Each of those conservative books was found in just one school.

And as seen in the next figure, when we broke districts down by the 2020 presidential election winner in their county, schools in Trump-won counties were much more likely to stock at least one Rush Revere title than in Biden-won areas. But more schools in Trump-won counties held Stamped: Racism, Antiracism, and You, and Between the World and Me than held a Rush Revere book.

These findings suggest that public school libraries have a yawning left-leaning bias in acquiring books. As the paper lays out, this is consistent with substantial evidence that the library profession has a pronounced liberal lean.

This seems to be assumed within the profession, and librarians who donate to Democrats outnumber those who give to Republicans roughly 9 to 1.

It also appears that publications on which librarians draw to assess what books to stock, such as School Library Journal and Kirkus Reviews, have liberal biases. They were more likely to have reviewed the liberal books on our list than the conservative books, and to have done so favorably. So not only might librarians favor liberal views, they also draw on recommendations from sources with their own liberal filters.

Is it, then, case closed that liberal bias among librarians and their preferred reviewers has created unbalanced inventories? No. The paper discusses other, very plausible explanations for some or all of the imbalance we found.

Based on our sample of books, it appears that conservative authors might not target public school libraries as aggressively as liberal writers. In particular, Stamped: Racism, Antiracism, and You has been heavily marketed to schools, including through a giveaway by the publisher in 2021. The Rush Revere titles have been significantly marketed, especially on Limbaugh’s own site, but that appears to have been more toward families directly than schools.

And Woke Racism – which is written in a clear way most high schoolers could likely follow – does not appear to have had any special outreach to schools. Nor has Cynical Theories, though it might be more complex than would be read by most high schoolers.

Another possible explanation for our findings that undermines the librarian-bias conclusion is that our list might not have included some balancing conservative books. We simply might not have thought of them. In addition, most public school book conflicts have been about fiction, often for kids younger than middle school. We did not examine fiction (Rush Revere is probably best described as historical fiction) and we focused more on older students. Our results, then, tell us little about book selection in the more commonly disputed areas.

As we were working on this paper, Columbia University professor Kirsten Slungaard Mumma released a much broader analysis of public school library holdings than ours, which suggests that school libraries tend to reflect the political makeup of their district populations. It included possible evidence of an overall left-leaning bias, though that was not a focus of her research. She also noted what motivated our paper: There is almost no research on public school library holdings and what leads to them. 

If there is one clear conclusion about public school libraries, it is that they need to be studied more closely. Our paper, which includes not only the findings of our balance analysis but an overview of what researchers know about how these libraries work, is a step in that direction.

It’s the most wonderful time of the year! Last week, on the first Monday in October, the Supreme Court reconvened for a brand new term. It’s slated to be another big one—with cases involving guns, regulation of social media platforms, and several doctrines that have enabled our behemoth administrative state. Here’s a quick recap of the Court’s first week back and the first three oral arguments of the year.

The Court first heard oral arguments in Pulsifer v. United States, which involved a question only the government could love: whether “and” means “or.” In 2018, Congress passed the First Step Act to reduce judges’ reliance on mandatory minimum sentences, which are known to result in arbitrary and unfair punishment. The Act allows judges to depart from minimums when the defendant does not have (A) more than four criminal history points, (B) a certain kind of prior offense, “and” (C) a second kind of offense.

Pulsifer pleaded guilty to distributing at least 50 grams of meth and is therefore subject to a mandatory minimum of fifteen years in prison unless he qualifies for a departure from the minimum. He had more than four criminal history points, had a prior offense under (B), but had not been convicted of an offense under (C). His attorneys argued that he qualified for departure because he did not have (A), (B), and (C). The government, however, argued that “and” means “or,” and a defendant does not qualify for departure from the minimums if he or she has (A), or (B), or (C). 

It’s true, of course, that words must be read in context and there really are times when “and” is meant to indicate “or.” As Justice Kagan noted during the argument, if your doctor tells you that, to get a blood test, you should not “eat food, drink any liquids, and smoke,” you would know that your doctor means you should not eat food, drink liquids, or smoke. In that case, what your doctor is trying to communicate by selecting the word “and” is that you should not eat food, and you should not drink any liquids, and you should not smoke. “And” modifies all three clauses.

Here, Justice Kagan observed, there’s some reason to think Congress meant “or” when it said “and.” For example, it would be bizarre for Congress to think it’s more disqualifying to have A, B, & C than to have several B offenses, which are more serious. It would also mean that defendants would prefer to be convicted of a higher point crime under (B) than be convicted of a lower point crime under (C), if doing so allowed them to qualify for departure from the minimums. But as Pulsifer’s attorney argued, the justices aren’t permitted to overturn laws merely because they think them odd.

The government argued that judges must assume Congress is an “intelligent drafter” of laws, and an intelligent Congress would have meant “or.” But, of course, Congress very often writes arbitrary, if not irrational, statutes all the time. And as Justice Gorsuch noted, Pulsifer’s interpretation may be odd, but it’s not absurd. Justice Gorsuch also noted that the government didn’t adopt this reading of the statute until late in litigation, casting doubt on its authenticity. 

Justice Kagan and Justice Jackson both appeared to have little sympathy for the government’s invitation to deviate from the ordinary meaning of the text. Justice Kagan said that where there’s two permissible interpretations and “where liberty is on the line,” she’d interpret the statute in a way that favors the accused. Similarly, Justice Jackson noted that this was a criminal statute “with huge implications,” and where there are two textually grammatically possible readings, that should weigh against the government.

While Justices Kagan and Jackson found the case’s criminal context important, there’s good reason to extend the same principles to other enforcement actions. Administrative proceedings, for example, can have tremendous consequences for people’s livelihoods. The Court is slated to hear at least one case involving deference to administrative agencies’ interpretations of law this term. Hopefully, judicial independence and a presumption of liberty will reappear in that context as well. 

The second case that was heard, Consumer Financial Protection Bureau (CFPB) v. Consumer Financial Services Association, is one of several cases the Court has taken up this term that has the potential to roll back the sprawling administrative state. But if oral argument is any guide, this challenge won’t be successful.

In 2010, Congress created the CFPB through the Dodd-Frank Act and authorized it to enforce a new prohibition on “any unfair, deceptive, or abusive act or practice.” To make CFPB “independent,” Congress allowed it to choose its own annual funding in perpetuity subject to a $750 million cap, with unspent funds rolled over each year.

Unlike most other agencies, which are subject to an annual appropriations process, the CFPB director simply requests whatever amount he or she believes is “reasonably necessary.” And even then, the director doesn’t ask Congress, but instead requests money from the Federal Reserve (which is itself outside the normal appropriations process) and the Fed Reserve will oblige so long as the request is within the limit.

Congress also made CFPB’s director unremovable by the president except for cause. But the Supreme Court invalidated that limitation a few terms ago on the basis that it violated the president’s power to remove officers. In other words, the Court recognized that the Bureau had gotten a little too independent.

The plaintiffs in this case similarly argue that its funding mechanism has made it too independent from Congress. They sued to challenge CFPB’s payday lending rule, which bans lenders from making preauthorized attempts to collect loan payments after two consecutive denials based on insufficient funds. They say allowing CFPB to choose its funding subject to only an illusory cap, in perpetuity, violates the Appropriations Clause. That provision requires all appropriations to come from Congress and plays an important role in keeping unelected bureaucrats accountable to elected officials.

Arguing for the CFPB, Solicitor General Elizabeth Prelogar made the case that CFPB’s structure is grounded in constitutional text and practice. When the Founders wanted to limit Congress’s appropriations authority, she said, they did so explicitly—as they did in the case of the Army Appropriations Clause (which limits appropriations to a two-year duration). And since the founding, Congress has funded agencies through standing appropriations that give agencies significant discretion over how much money they use. The CFPB’s funding structure, she said, is not materially different.

This broad interpretation of the Appropriations Clause caused Justice Thomas to ask whether there are any limits on how Congress can appropriate funds. The Solicitor General answered that Congress must provide funding for specific purposes from specific sources and it cannot give away its authority entirely, by say, giving a quadrillion dollars to the president to use as he likes.

Prelogar’s heavy reliance on historical practice might have been a consequence of the Court’s recent ruling in New York Pistol Association v. Bruen. In that case, the Court ruled that restrictions on the Second Amendment will only be upheld if an analogous law existed at the time the Amendment was passed. But as Justice Kagan noted, there’s no exact historical analogue to the way Congress has funded CFPB. She therefore asked whether it’s more important that the Court find a historical analogue or that it extrapolates principles from the examples it can find. That’s a question the Court will continue to grapple with as it builds on Bruen.

I’ve argued before that the Court has become too reliant on historical practice. After all, the Constitution enshrines principles, not practices. Practices can inform the meaning of certain words or phrases in the Constitution, but they should not be considered determinative of whether a modern practice is constitutional.

Arguing for the challengers, former Solicitor General Noel Francisco made the case that in funding CFPB, Congress has effectively given away its appropriations power entirely, since the cap is so high that CFPB essentially gets to pick its own budget. Justice Kagan responded that perhaps the fact that CFPB hasn’t met its spending cap suggests that it should be doing more.

The most interesting part of the argument was an exchange between Francisco and Justice Jackson, who asked him where in the Constitution’s text he derived his suggested limits on the appropriations power. Francisco responded that as with most separation of powers principles, we derive them from text, structure, and purpose. His response indicates how far we’ve come from the Robert Borkean “inkblot” days, when judicial conservatives insisted some parts of the Constitution were too opaque to be understood. For a moment, it was as if the two had swapped places, with Justice Jackson employing a strict interpretation of the text and Francisco looking more broadly to constitutional construction and purpose. Justice Jackson has been said to employ “Progressive Originalism” when interpreting the Constitution, and it will be interesting to see how she develops this methodology as a challenge to the Originalism employed by some of the other justices.

All of the justices seemed to agree there must be some limits to Congress’s ability to delegate away its appropriations power, but most appeared to believe CFPB hadn’t crossed them. So while the case is yet another example of the continuous erosion of the separation of powers and Congress’s propensity to give its power away to unelected, unaccountable agency bureaucrats, it seems unlikely the Court will deem CFPB’s funding mechanism unconstitutional.

The last case the Court heard in its first week back involves the perennial question of “standing,” or what kind of injury a plaintiff must sustain before bringing a lawsuit. Standing disputes take up a surprising amount of lawyers’ time, especially when it comes to constitutional lawsuits, in which government attorneys try to avoid defending laws on the merits and instead get cases dismissed based on procedural technicalities.

In Acheson Hotels v. Laufer, the plaintiff was a woman who surfed hotel websites to see whether they provided disability access information, even though she had no intention of visiting the hotels. “Disability testing” has become something of a cottage industry, with plaintiffs suing hotels for violations of the Americans with Disabilities Act and then settling the lawsuit despite having no interest in visiting the location, and thus no possibility of experiencing disability discrimination. The lower courts ruled that Laufer had standing to sue the hotel, but after the Supreme Court agreed to take up the case, Laufer dismissed her claims against the hotel and argued the Court should deem the case moot. In fact, by the time of oral argument, the case was (in the words of Justice Kagan) “dead, dead, dead.” The hotel had changed hands, its website was fully compliant, and the plaintiff had dismissed her case.

That meant that much of the oral argument centered around whether the Court should still decide the standing question. While several justices suggested the lawsuit was moot, Chief Justice Roberts observed that courts generally must determine whether the plaintiff has standing to bring a claim before determining whether that claim has become moot, and thus there’s nothing odd about taking up the question now.

Justices Thomas and Jackson questioned whether it might be “easier” to just dismiss the case as moot, vacate the court decision below, and wait for a live case to come back to the court at a later time, but Justice Barrett noted that such a path would require more resources in the long run, since it would require entirely new (and duplicative) briefing at a later date. The Chief Justice also noted that a case might never come back to the Court, since a plaintiff could follow the same course of action as Laufer and dismiss his or her claim any time a defendant successfully appealed to the Supreme Court.

After discussing mootness, the Court moved on to whether Laufer had sustained an injury sufficient to bring a lawsuit, asking both attorneys several hypothetical questions related to whether a plaintiff would have standing to sue if they were mere bystanders of racial discrimination. 

Justice Jackson, for example, compared Laufer to someone who sees a sign on the door of a restaurant across the street indicating it discriminates, but who never intends to frequent that restaurant. Laufer’s attorney responded that going to the website was not the equivalent of looking at the sign, but instead the equivalent of going to the restaurant and actually being subject to discrimination. In her view, going to the website inflicted a “dignitary harm,” because it deprived Laufer of information “for a reason that conveys that [she has] inferior status in society.” But as Justice Kavanaugh pointed out, all observers of the website are treated the same. The discriminatory treatment doesn’t happen until a person actually gets to the hotel.

It would, at least on the front end, be easier for the Court to kick the can down the road by calling this case moot. The safe bet is that’s exactly what it will do. But at some point the Court will have to clean up standing doctrine, which has become unmoored from the text of the Constitution and is inconsistently applied. At times, courts have applied standing principles too loosely, allowing uninjured plaintiffs to secure huge settlements from innocent businesses. At other times, courts have applied standing too strictly, succumbing to government attorneys’ gamesmanship and kicking civil rights plaintiffs out of courts. Standing doctrine needs a serious clean-up, but this likely won’t be the case to do it.

The coming weeks will see increasingly consequential cases. If last week was this much fun with cases involving semantics and standing, we anxiously await the rest of the term.

Social media sites face many choices when they set rules for users. How much speech is permissible? Will conversations be “anything goes” or strictly moderated for relevance and decorum? Will moderation decisions be automated, human, or a mix? Different sites have made different choices, and that’s as it should be. Indeed, the First Amendment requires that sites have the freedom to make these decisions for themselves.

Although social media may be a relatively new medium, long‐​established First Amendment principles give sites the right to control what content they host, just as newspapers and book publishers have a right to select the editorials and manuscripts they print.

Some states, including Texas and Florida, have attempted to infringe the First Amendment rights of social media companies in blatant ways, such as by forcing sites to host user content they do not wish to. And now New York State has joined the fray with its own unconstitutional intrusion into the editorial freedom of social media sites.

New York recently enacted an “Online Hate Speech Law” that requires social media sites to promulgate policies governing so‐​called “hateful conduct” and create “mechanisms” by which users can report such conduct. “Hateful conduct” is defined by the statute to include online speech that can “vilify” or “humiliate” a group or a class on the basis of race, sex, and other traits.

New York’s law was soon challenged in a lawsuit brought by several operators of online platforms, including law professor and First Amendment expert Eugene Volokh. As the operator of the “Volokh Conspiracy” blog, which allows user comments, Volokh himself would be forced to comply with the law’s requirements.

A district court ruled in favor of Volokh and blocked the law from going into effect, holding that it likely compelled speech in violation of the First Amendment. The court found that the law impermissibly required sites to publish a “hateful conduct” policy even if they would prefer not to publish any such policy, forcing them to speak when they would prefer to remain silent.

New York appealed that decision to the Second Circuit, and Cato has filed an amicus brief urging the Second Circuit to affirm the lower court and hold the law unconstitutional (with thanks to attorneys Joshua Zuckerman and Brian McCarty of Gibson Dunn, who drafted the brief on behalf of Cato).

In our brief, we explain why the law’s “reporting mechanism” requirement violates the First Amendment rights of both social media sites and their users by chilling free expression. Some sites may prefer not to have a reporting mechanism for so‐​called “hateful conduct,” given that most of the speech falling under New York’s mandated definition of that term is itself lawful speech protected by the First Amendment.

These sites may reasonably expect that if they did have such a reporting requirement, users would naturally self‐​censor for fear of being reported. By compelling unwilling sites to create a mechanism for users to report on each other, the law is likely to stifle the uninhibited flow of speech that these sites would prefer to allow.

Of course, social media sites are free to voluntarily create reporting procedures, and many had already done so prior to New York enacting its law. But the choice of whether to create such a mechanism, how it operates, and what speech to make reportable must be up to each individual site.

New York’s one‐​size‐​fits‐​all definition of “hateful conduct” puts a thumb on the scale, with the clear aim of inducing self‐​censorship of some lawful speech that New York would prefer to suppress. The Second Circuit should make clear that states can’t use mandates like “reporting requirements” to indirectly achieve online censorship that states couldn’t impose directly.