News & Notes

1. There has been a flood of complaints against Judge Cannon to the 11th Circuit. The problem is that they don't actually complain about anything. So Chief Judge Pryor rightfully dismissed them and said no mas. Here's his order. To the people filing 1000s of complaints, it reminded me of William Shatner's line "Get a Life" on Saturday Night Live.

2. Apparently the viral story (that was also blogged about on this platform) was totally bogus:

It turns out all those stories, however, were based on a falsehood. Harris' license had been reinstated years prior and was only registering as suspended due to a clerical error. As of this writing, there has been no spate of additional articles, corrections, or a reinvigorated news cycle based around this information, because the truth here doesn't lend itself to virality and engagement.

That's a good indication that this never should have been a national story to begin with, which would be true even if Harris had been driving on a suspended license. A man in Michigan driving allegedly when he wasn't supposed to is not newsworthy enough to deserve coverage in the most influential outlets in the U.S. (and beyond). Good for a social media laugh? Sure. Justifying its own news cycle? No.

3. Judge Newsom and Judge Rosenbaum are going at it in this appeal that ends up holding that a grant program for Black women is discriminatory .  The writing from both is great and worth a read.  

Judge Newsom introduces the case in his majority opinion:

In this appeal from the denial of a preliminary injunction, we are asked to decide whether the Fearless Strivers Grant Contest, an entrepreneurship funding competition open only to businesses owned by black women, violates 42 U.S.C. § 1981, which prohibits private parties from discriminating on the basis of race when making or enforcing contracts.  We must also decide, as a threshold matter, whether the plaintiff, the American Alliance for Equal Rights, has standing to challenge the contest.   After careful review, and with the benefit of oral argument, we hold (1) that the Alliance has standing and (2) that preliminary injunctive relief is appropriate because Fearless’s contest is substantially likely to violate § 1981, is substantially unlikely to enjoy First Amendment protection, and inflicts irreparable injury.  We therefore affirm the district court’s determination that the Alliance has standing to sue but otherwise reverse its decision and remand with instructions to enter a preliminary injunction.  

Judge Rosenbaum's dissent starts this way:

No one doubts the sincerity of an Arsenal (soccer) player’s desire to beat Tottenham.  But he can’t be allowed to try to win by flopping on the field, faking an injury near Tottenham’s goal.  For those not in the know, the object of flopping is to manufacture a foul that the player hasn’t actually experienced to manipulate the referee into inappropriately exercising his power to award a penalty kick in the box, where it’s likely to result in a goal.  Referees’ vigilance prevents players who have a sincere desire to defeat their opponents—but who try to do so through manufactured fouls— from commandeering referees to improperly exercise their adjudicatory authority to award unwarranted penalty kicks. 

Article III’s standing requirement—which comes from the Constitution’s limitation on the Judiciary to hear only “[c]ases” and “[c]ontroversies”—prevents the legal version of flopping.  Among other things, standing seeks to ensure that a party has a genuine and personal stake in the matter—a real alleged injury.  That way, the court’s decision is not an impermissible advisory opinion but instead addresses a “real need to exercise the power of judicial review in order to protect the interests of the complaining party.”  Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974).  As the Supreme Court has explained, “The powers of the federal judiciary will be adequate for the great burdens placed upon them only if they are employed prudently, with recognition of the strengths as well as the hazards that go with our kind of  representative government.”  Id. at 222 (citation and quotation marks omitted). 

Here, no one doubts the sincerity of American Alliance for Equal Rights’s desire to challenge what it views as “distinctions and preferences made on the basis of race and ethnicity.”  Compl. ¶ 6.  American Alliance seeks to do so by challenging the Fearless Foundation’s Striver’s Grant Contest (the “Contest”) designed to help Black women in the business world, where they are grossly underrepresented as business owners.1  But as American Alliance has portrayed its members’ alleged injuries, it has shown nothing more than flopping on the field.2   Although three of American Alliance’s members pay lip service to the idea they are “ready and able” to participate in Fearless’s Contest, their declarations show, in context, that none has a genuine interest in actually entering the Contest.