(Posted July 12, 2024) The opinion presses are still this week at Ninth and Franklin – statistically unsurprising, considering that there are only three argued but undecided cases left – so let’s wade across the Potomac to consider one of SCOTUS’s several watershed decisions at the end of OT’23. There are plenty of those to choose from, but in my mind the biggest of those was the last to arrive: Trump v. United States.

The issues here are important enough that I’ve let my thoughts on the case simmer for a week and a half. Especially with SCOTUS decisions, where I don’t know the caselaw as well, I prefer not to offer hasty opinions. I recognize that you didn’t exactly go hungry for analysis, as the decision has been covered widely in other media.

In this appeal, the Court established wide-reaching presidential immunity for current and past presidents. This is the appeal where Trump’s lawyer responded to a question in oral argument by agreeing that if a president ordered SEAL Team Six to assassinate a political rival, that would be an official act and would be protected by immunity.

In last week’s opinion, the Supreme Court gave Trump, in the words of the dissenting justices, all he asked for and more. The decision creates three tiers of immunity analysis for former presidents. For what the Court calls “core” presidential responsibilities under the Constitution – things like appointing ambassadors, granting pardons, and removing Executive Branch officials – neither Congress nor the courts can restrain the president.

The second tier comprises those presidential duties in which the executive branch shares some responsibility with the other branches. For these acts, the president will now enjoy presumptive immunity that will bar any prosecutorial actions unless they pose “no dangers of intrusion on the authority and functions of the Executive Branch.”

The final tier covers a president’s unofficial acts, for which there’s no immunity. While the decision doesn’t define such acts, they logically include matters wholly outside the president’s responsibilities of office, such as playing golf or buying a gift for a family member.

In the “all that he asked and more” column, the ruling adds what Louisianans call a lagniappe – a little something extra. The Court holds that even where a former president may be tried for an unofficial act or where the prosecution overcomes the presumption, no evidence may be adduced of any acts that are privileged, and no inquiry is permissible into the president’s motives or intentions. It also, though no one asked it to do so, waves a wand over a longstanding Justice Department legal position that sitting presidents may not be prosecuted, and turns it into a de facto official holding of the Supreme Court. (See this essay for greatly expanded treatment of that premise.)

The Court justifies the first two tiers by different routes. For the first, it’s separation of powers. If the Constitution grants unfettered power to the Executive Branch, then the Legislative Branch may not pass laws to forbid or regulate the use of such power, and presumptively the Judicial Branch would be without authority to try such a case.

For the second, the majority seeks to protect the ability of the president to act, and react, boldly, without the nagging worry of potential future criminal prosecution. The Court fears an Executive Branch that “cannibalizes itself” if each president would be at liberty to send the law after his or her predecessor of a different party.

The dissenting justices see this as a massive and unwarranted grant of power to the president, immunizing him for what would be plainly criminal behavior as long as he’s performing official acts. Justice Sotomayor’s primary dissent (Justice Jackson also files one) includes this stark accusation:

The President of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.

The chief justice’s majority opinion accuses the dissents of “strik[ing] a tone of chilling doom that is wholly disproportionate to what the Court actually does today …” The majority includes repeated assurances that the ruling doesn’t place presidents above the law.

*   *   *

The chief’s assurances fail to convince me, for one primary reason: I’m not a moron. Yes, the president is now almost completely above the law. The criminal law might reach him for plainly private conduct like cheating on his taxes or embezzling money from his church; but for the overwhelming majority of presidential acts, no matter how egregious, the chief executive is now unconstrained to follow the law that he swears an oath to enforce. The chief justice’s assurance is written in water.

Here’s an Exhibit A for the prosecution in my thesis. Remember the ability to overcome presumptive immunity, to reach “official acts” (undefined in the opinion) for criminal prosecution? The threshold to overcome the presumption is that it must pose “no dangers of intrusion on” the president’s authorities. Note that it doesn’t say “massive dangers,” or even “unreasonable dangers.” It says “no dangers.” If the president can demonstrate any intrusion, however slight, then the law can’t touch him. Let’s face it: No American president will face any prosecution for any official act, as long as this case retains vitality.

The same justices who thus dramatically altered the balance of political power in our nation once professed the opposite conclusion. In their confirmation hearings, the chief and Justices Alito, Gorsuch, and Kavanaugh assured senators that they warmly embraced the premise that no man is above the law. Justice Barrett takes them to task for this switcheroo in her partial concurrence/dissent, writing that the majority’s bold shift “makes a mockery of the principle, foundational to our Constitution and system of Government, that no man is above the law.”

Nor does this decision fit well within the decisional frameworks that the Court’s majority has professed. It isn’t textualist; the Constitution says nothing about presidential immunity, though it does grant immunities to other officers in other respects. It isn’t originalist; the Founders would be appalled by this, as the dissents point out in a string of quotations. And it plainly ignores any pretense of judicial restraint, deciding questions that weren’t truly before the Court, just so the majority can generate a broad rule.

*   *   *

For those of us who see clearly the danger that this decision presents, how can this error be corrected? It won’t be easy and it won’t happen in the short run; maybe not in my lifetime. A constitutional amendment could wipe out broad immunity, perhaps substituting a narrower protection. When the Court’s personnel changes, a different set of justices could overrule this opinion. That won’t happen quickly because seats change hands so seldom; in addition, the Court would need a procedural vehicle, a suitable appeal, in which to take up the question. Either way, if a solution will come, it’s many years away.

In the meantime, we now live in a different America than we did at the end of June. Our ancestors, including three of mine, fought a war to rid ourselves of a ruler who wasn’t answerable to the criminal law; now the Supreme Court has given us another one. We can all too easily imagine what immunity like this would inspire in the mind of a future president who disdains the rule of law that we lawyers have sworn an oath to support.

There’s one more effect that I see from this decision, and it directly affects those of us who live and work in the appellate milieu. For a few years now, the Supreme Court of the United States has been hemorrhaging institutional legitimacy. Troubling news accounts of gifts to justices, and ensuing refusals to recuse, have subjected the Court to biting criticism. The Court’s hastily released code of conduct proved wholly toothless, a reflection that the Court, too, is above the laws that apply to other judges.

Then there’s public support. The popularity vel non of opinions isn’t supposed to matter in a justice’s mind in deciding cases. That’s as it should be; Brown v. Board of Education and Obergefell v. Hodges were highly unpopular in major swaths of society when they arrived. So, probably, was Miranda v. Arizona; the tough-on-crime set back then probably rankled at the idea of respecting arrestees’ rights.

But in the past couple of years, the Court has handed down several rulings that are deeply unpopular with sizable majorities of the populace. Dobbs v. Jackson Women’s Health is one such; a clear majority of Americans supported the right of a pregnant woman to get an abortion on her doctor’s advice. By striking down a right that had existed for half a century, the Court announced a deeply unpopular decision that has generated electoral backlash, even in ruby-red states. Consider also Garland v. Cargill, where the Court ignored widespread public support for a ban on bump stocks, essentially telling Americans that they just have to live with what are effectively machine guns in private hands, wandering among us.

Now we have another such resentment-triggering opinion. I’ve read multiple reports that something like 70% of Americans believe that the president should not be immune for committing criminal acts. The Supreme Court gave the president that immunity anyway, effectively legitimizing Richard Nixon’s infamous claim that “If the president does it, that means it is not illegal.”

One unpopular ruling isn’t a problem for the Supreme Court, but a long string of those will cause wide swaths of the American populace to lose confidence on the Court as a neutral arbiter. We’re long past the idea of a Supreme Court that merely “calls balls and strikes” – that was never true, even when then-Judge Roberts professed it in his confirmation hearing. (If you doubt me, consider the purely judicial origin of the doctrine of qualified immunity, which has, by judicial fiat, gutted the §1983 remedy that Congress enacted.) Now we’ve reached the point that a growing number of Americans see the Supreme Court as merely another political branch of government. The next step is growing civil disobedience of unpopular decisions. The next step after that is unpleasant to contemplate.

But the justices don’t care. The majority now have enough votes that they no longer need to care. This brings to mind the quip of a Robe in the last century who told a law clerk that the most important skill on the Supreme Court is the ability to count to five.





(Posted July 3, 2024) Due to tomorrow’s holiday, the Supreme Court of Virginia releases two published rulings a day early. Both implicate sovereign immunity.

The shorter of the two – and hence the one I’ll usually read first – is a published order in Stafford County School Board v. Sumner Falls Run, LLC. This is a petition for review of the denial of sovereign immunity, brought under Code §8.01-670.2. This is the new (2022) statute that allows interlocutory appeals of interlocutory orders granting or denying immunity pleas. Today’s order appears to be the first published ruling of the Supreme Court employing that statute.

The setup is simple: “Stafford County is in the process of building two new schools. A nearby property owner … is concerned about the adverse effects this construction will have on an easement it owns and on the value of property it owns.” The owner filed a DJ action against the local school board and VDOT, seeking several rulings to protect its property rights.

The circuit court entertained but ultimately rejected special pleas filed by the two governmental entities, claiming that sovereign immunity barred the proceeding. That led to two separate appeals, consolidated for today’s ruling. A panel of the Supreme Court today reverses and remands the case.

The court first holds, consistent with existing caselaw, that the Declaratory Judgment Act doesn’t abrogate sovereign immunity. The circuit court erred in ruling that it did. That, in turn, leads to the more involved question whether the immunity applies here. DJ proceedings are available where the petitioner seeks to vindicate a self-executing provision of the Constitution of Virginia.

There’s no such provision for claims against the Commonwealth, so the panel today directs judgment in favor of VDOT. The court regards as “more complex” the question of the school board’s immunity. The interlocutory appeal seeks a judgment on the propriety of the county’s anticipated future plans, and that seems premature, so the panel remands for evidence to determine if the claim is ripe yet.

As with most published orders, we don’t know who wrote this one. The panel comprised Justices McCullough, Russell, and Mann. The court decides the case on the briefs, without oral argument.


For a good, old-fashioned published opinion, let’s turn to Page v. Portsmouth Redevelopment and Housing Authority, an appeal argued in February. Page owns a building next door to one owned by the authority. The latter building was dilapidated when the authority bought it in 2009, but the authority allowed it to remain open as a soup kitchen, a clothing store, and a food pantry, all operated by a ministry.

The authority did nothing about the dilapidated condition of the structure. By 2014, the building was so bad, the City sent it a notice to abate the hazardous condition, or the City would raze it and bill the authority for that operation. Facing that prospect and the threat of criminal and civil sanctions for doing nothing, the authority finally knocked the building down.

If you think that produced a happy ending, then you don’t know appellate litigation. The demolition produced significant damage to Page’s building next door. He sued the authority for those damages. To address the foreseeable immunity defense, he argued that the authority breached a proprietary duty to maintain the building and was thus just as liable for the damages as a private landowner would have been. The authority replied that it had the same immunity as the City would have had, and the City acted at abate a public nuisance – clearly, a governmental function.

The circuit court agreed with the authority and dismissed the case; the Court of Appeals affirmed in an unpub handed down just over a year ago. Today the Supreme Court unanimously reverses and sends the case back for trial.

The primary holding here is that the authority’s poor maintenance of the building is what necessitated the demolition, and in failing to return it to good repair for five years after buying it, the authority violated duties implicating its proprietary function. That means that it’s answerable in damages.

The court distinguishes a 2011 SCV decision, Lee v. Norfolk, in which the City razed a privately owned dilapidated building. The Lee court held that the City acted in its governmental capacity in doing so, so it was immune from damages. And if this were a lawsuit against the City of Portsmouth, that doctrine would again bar liability. But here, the building’s owner demolished the structure. The City prompted the action but didn’t carry it out.

Today’s opinion – Justice Kelsey writes for a unanimous court – contains one other newsworthy item. The Court of Appeals panel that affirmed the dismissal last year had held that Page approbated and reprobated on the question whether the authority was acting on behalf of the City when it razed the building. The panel’s unpub quoted Page’s lawyer in the circuit-court argument as saying that the authority “w[as] acting … on behalf of the [C]ity” (ellipsis inserted by CAV). That, the panel held, was inconsistent with Page’s position on appeal.

I was in the courtroom when the Supreme Court entertained oral argument in this case. Justice Russell called the lawyers’ attention to the full passage from the trial-court transcript, and it became immediately apparent that the insertion of the ellipsis was problematic. Here’s what Page’s lawyer had actually said: “We are saying it was not an exigent situation but that they were acting in their proprietary role on behalf of the [C]ity.” (Emphasis added by SCV) The CAV opinion also neglected to mention the lawyer’s very next sentence from the transcript, where he made it clear that he was not conceding that the authority stood in the City’s shoes.

I’ll admit to some reading between the lines on my part here, but sitting in the courtroom back in February, I was confident that Justice Russell, at least, wasn’t happy with the way the CAV panel had thus doctored the record to make it look like there was approbate/reprobate waiver. Today’s opinion commends the authority’s lawyer for agreeing that his adversary never conceded the point in circuit court. The opinion doesn’t chastise the panel; it merely rules that it “erred in holding” as it did. This restraint reflects the subdued language of appellate opinions.





(Posted June 28, 2024) Today is the last business day of the second quarter, so it’s a good time to look around and see what’s been happening in the appellate world.


SCV whittles its docket

Yesterday’s decision in Powell v. Knoepfler-Powell reduces to four the number of argued-but-undecided appeals on the docket of the Supreme Court of Virginia. Here are capsule summaries of the appeals that are still “open”:

Page v. Norfolk RHA is a public-nuisance claim that implicates the governmental/proprietary distinction in municipal cases. It’s the oldest appeal on the docket in one sense, having been argued four months ago today.

Eckard v. Commonwealth, argued in April, addresses a claim of juror misconduct in a criminal trial.

Crumpler v. Stark and Durham v. Commonwealth comprised the June micro-docket, just three weeks ago. Crumpler appears to involve a series of disputes among residents of a community at Smith Mountain Lake, though it’s hard to get a full sense from just the assignments of error. Durham implicates a motion to suppress and a sufficiency challenge in a criminal prosecution.

As noted here recently, I’ll be following these cases to see if the Supreme Court will fully clear its argued-cases docket over the summer, before the September session.


2Q David-Goliath Index

Another calendar quarter’s worth of decisions are in, so let’s see how our big guys and little guys fared in the SCV. Counting published opinions and unpubs, our Davids prevailed three times, while Goliath came out ahead nine times. Added to the first quarter’s numbers, that gives us a D-GI of 30/70 for the first half of the year, as the little guy has won six of these appeals and the big guy 14.


An uptick in decisions

I also counted the number of merits decisions we’ve received in the first half of 2024. The court has handed down twenty published opinions/orders and five unpubs since the calendar turned. That’s not a lot by the standards of several years ago, but the pace is far ahead of last year, when we got only 28 published rulings and two unpubs all year. It’s worth mentioning that three of this year’s published rulings were three-sentence affirmances that merely adopt the CAV’s decision and analysis.

Back in January, I publicly wished for more writ grants. Early returns, measured by the future contents of Virginia Reports volumes, are encouraging.


Will the SCV follow SCOTUS?

In some respects, the question above might be considered impolite; Virginia maintains a firm sense of independence from those folks in Washington. I ask the question because this morning, Those Other Robes addressed a principle known as Chevron deference. The premise arose from the 1984 decision in Chevron USA v. Natural Resources Defense Council, which held that in evaluating ambiguities in statutes, courts should normally defer to interpretations by the relevant administrative agencies. The concept is that the agencies will normally have more technical expertise than will courts, which are by nature generalists.

If you’ve relied on this principle in federal court, please know that the medical examiner now has the body and will be signing the death certificate soon. SCOTUS today ended Chevron deference’s life at the tender age of 40, in Loper Bright Enterprises v. Raimondo. Henceforth, courts won’t defer to agencies, regardless of their expertise.

No, I haven’t transitioned to a federal appellate website; for coverage of SCOTUS, I cheerfully refer you to the folks at SCOTUSblog, who do a wonderful job of covering proceedings at One First Street. I mention this because Virginia has a version of the Chevron principle: It’s called the rule of practical construction, a premise that I learned many years ago when I literally worked in City Hall. Here’s a recent expression of it, and its limitations, from a 2018 SCV opinion:

Although the practical construction given to a statute by public officials charged with its enforcement is entitled to great weight by the courts and in doubtful cases will be regarded as decisive, when an issue involves a pure question of statutory interpretation, that issue does not invoke the agency’s specialized competence but is a question of law to be decided by the courts.

Jones v. Commonwealth ex rel. Moll, 295 Va. 497, 503 (2018), quoting Commonwealth v. Barker, 275 Va. 529, 536 (2008) (emphasis added in Jones).

In this sense, I perceive that Virginia courts have employed a watered-down version of Chevron deference. It remains to be seen whether our courts will follow the federal lead and send what remains of administrative-agency deference to a quiet cemetery somewhere.