This Is The Way

Walt Disney Parks and Resorts U.S., Inc., filed the lawsuit in the U.S. District Court for the Northern District of Florida on Wednesday, accusing DeSantis of orchestrating a "targeted campaign of government retaliation," which would violate the company's free speech rights. 

Disney filed the lawsuit after the Central Florida Tourism Oversight District, which houses Walt Disney World Resort, voted to invalidate two development contracts that Disney signed in February. 

DeSantis recently appointed a board to oversee the district housing Disney. 

In Friday's order, U.S. Magistrate Judge Martin Fitzpatrick wrote he's related "in the third degree" to someone employed by one of the parties in the lawsuit, which requires his recusal from the case.

If you don’t sit on the Supreme Court, that is.

We spend so much energy on (1) that we’re missing why (2) is important: If there was public faith that the Justices were being held to meaningful standards by anyone *other than* the press, there’d be less sensationalism around press reports that may or may not reveal misconduct.

— Steve Vladeck (@steve_vladeck) April 29, 2023

Instead, the Court’s supporters (and Justice Alito himself) are insisting that reform proposals are bad-faith efforts to attack the Court from its critics; while critics claim each of these reports reveals bad faith by the Justices.

It’s a feedback loop that spins us in circles.

— Steve Vladeck (@steve_vladeck) April 29, 2023

Professor Vladeck knows this, but I think it’s worth explaining. Rules for lawyers vary from state to state, so what I have to say only strictly applies in Texas.

Texas lawyers are subject to Ethical Guidelines (EG), and Disciplinary Rules (DR). Violating the EG’s can earn you a reprimand. Violating the DR’s can cost you your license.

I mention this because the rules establish guidelines and punishable acts. A basic requirement of due process and equal protection is that you can know what acts are violations of law, whether the punishment is civil, administrative, or criminal.  In Texas, lawyers are accountable to the State Bar (a creature of the state Supreme Court) for their professional conduct (or misconduct). They are held accountable through the DR’s. Without those they couldn’t be, because without those they can’t know what is a violation of the rules.

The Supreme Court doesn’t have such rules; which is part of what Professor Vladeck is talking about. And that’s a large part of the problem. But they are subject to federal law, such as the Ethics in Government Act. And the question is: who enforces that? The DOJ should, but that’s a political as well as legal decision.  

The critical issue here is the feedback loop Vladeck refers to. As a lawyer he knows that’s not just some act of God/force majeur. Someone is responsible for the situation; or several someones, since all 9 Justices signed the letter effectively placing themselves beyond review. They set up the situation, at least, going back to their interpretation of Art. III giving them lifetime sinecure. (There is so much concern with Biden’s age, but Vladeck notes in another tweet that two Federal judges appointed by Nixon are still on active status.) If the court declares itself above investigation, as it has effectively declared itself above the law, will this prompt the “constitutional crisis” the press is always looking for? Going after an ex-President is one thing; going after sitting Justices is another. And already the wagons are circling:

This message brought to you by a recipient of sweet Harlan Crow cash. https://t.co/TlI9wsLLWR

— emptywheel (@emptywheel) April 29, 2023

I don’t think the solutions start with DOJ and the courts. I think they start with the Congress; since the Court clearly isn’t up to it. And can’t really be tasked with policing itself, anyway.