Best conservative judges to clerk for? Forum

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This take is either just wrong or so lacking in nuance that it is unhelpful.

It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:

- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response

- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property

- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages

- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree

- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy


As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.

This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.

All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This. Newsom is a straight shooter, a great writer, and a principled judge. Oldham is a hack and an ideologue.

[Anonymous User]

If you look at the current members and their credentials and age and you'll see a lot of them are potential Fifth Circuit or Texas district judge picks like Huddle, Busby, Young, and Blacklock (particularly Young and Blacklock I'd say).

Several justices also have CA5/TD connections and experiences. Blacklock clerks for Smith, for example.

Yep, nature of the role of a SCOTX Justice is that you are well-tapped into these areas. Basically all of them right now are also very good bosses or mentors from what I understand. My friend who clerked there also said they have events and lots of cross-Justice interactions with the clerks. Of the current ones I've heard people rave about Lehrmann, Bland, Huddle, Young, Busby, Hecht, and Blacklock. Have not heard anything about Boyd (not necessarily anything negative, just have not heard). With respect to Devine I don't think he hires clerks or maybe doesn't hire that many. Also apparently he is not as involved in the court as the other eight. Most (maybe around 80%) of the clerks have connections to Texas, but I have run into a few SCOTX clerks did not.

SCOTX is a fantastic clerkship. Great judges (and bosses). Interesting issues. Slower docket with less run-of-the-mill cases. Get to live in Austin for a year. Texas firms give market bonuses for SCOTX. Lots of interaction with other judges and clerks. Only downside is pay is below federal level, particuarly if you clerk more than a year out of law school.

[Anonymous User]

If you look at the current members and their credentials and age and you'll see a lot of them are potential Fifth Circuit or Texas district judge picks like Huddle, Busby, Young, and Blacklock (particularly Young and Blacklock I'd say).

Several justices also have CA5/TD connections and experiences. Blacklock clerks for Smith, for example.

Yep, nature of the role of a SCOTX Justice is that you are well-tapped into these areas. Basically all of them right now are also very good bosses or mentors from what I understand. My friend who clerked there also said they have events and lots of cross-Justice interactions with the clerks. Of the current ones I've heard people rave about Lehrmann, Bland, Huddle, Young, Busby, Hecht, and Blacklock. Have not heard anything about Boyd (not necessarily anything negative, just have not heard). With respect to Devine I don't think he hires clerks or maybe doesn't hire that many. Also apparently he is not as involved in the court as the other eight. Most (maybe around 80%) of the clerks have connections to Texas, but I have run into a few SCOTX clerks did not.

SCOTX is a fantastic clerkship. Great judges (and bosses). Interesting issues. Slower docket with less run-of-the-mill cases. Get to live in Austin for a year. Texas firms give market bonuses for SCOTX. Lots of interaction with other judges and clerks. Only downside is pay is below federal level, particuarly if you clerk more than a year out of law school.

They've increased their pay somewhat, way better than it was a few years ago which was abysmal. Now, I think it is 70k. Still below federal but not that much.

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This take is either just wrong or so lacking in nuance that it is unhelpful.

It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:

- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response

- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property

- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages

- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree

- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy


As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.

This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.

All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.

Found the Oldham clerk.

Seriously though, Netchoice isn’t even the worst offender among Oldham’s seemingly politically-motivated decisions. For example, the standing analysis in Alliance for Hippocratic Medicine v. FDA is far worse, especially given Oldham’s background as a Fed Courts professor.

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This take is either just wrong or so lacking in nuance that it is unhelpful.

It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:

- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response

- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property

- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages

- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree

- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy


As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.

This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.

All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.

Found the Oldham clerk.

Seriously though, Netchoice isn’t even the worst offender among Oldham’s seemingly politically-motivated decisions. For example, the standing analysis in Alliance for Hippocratic Medicine v. FDA is far worse, especially given Oldham’s background as a Fed Courts professor.

Pretty sure the objectionable part of Oldham's Netchoice opinion is the obnoxious tone and blatant unwillingness to characterize what the platforms do as anything other than censorship (when they obviously do more than just censor people) rather than his reliance on Pruneyard, but maybe that's just me.

[Anonymous User]

More obscure subject but the new Oldham “justice” requirement for granting habeas is even nuttier than the more high-profile ones. There’s not even a colorable argument for it (and Oldham didn’t find one, it’s just purely results-driven). And again it’s supposedly in his area of special expertise. And I say this as someone who generally sympathizes with the pretty radical Thomas/Gorsuch approach to habeas law.

He’s engaged in a sort of project of abandoning originalism and textualism for the sake of getting conservative results without shedding the lingo like the common good folks do. If anything, he dials up the lingo. For clerks sympathetic to that project, or willing to play ball with it, he’s probably a great clerkship. Plus the odds he ends up on SCOTUS seem substantial.

[Anonymous User]

More obscure subject but the new Oldham “justice” requirement for granting habeas is even nuttier than the more high-profile ones. There’s not even a colorable argument for it (and Oldham didn’t find one, it’s just purely results-driven). And again it’s supposedly in his area of special expertise. And I say this as someone who generally sympathizes with the pretty radical Thomas/Gorsuch approach to habeas law.

He’s engaged in a sort of project of abandoning originalism and textualism for the sake of getting conservative results without shedding the lingo like the common good folks do. If anything, he dials up the lingo. For clerks sympathetic to that project, or willing to play ball with it, he’s probably a great clerkship. Plus the odds he ends up on SCOTUS seem substantial.

GOP powers-that-be have made clear that they view Gorsuch/Kavanaugh as a failure of the “conservative legal movement,” and that they will look for more results-oriented candidates in the future. It looks like Oldham is positioning himself as the most high-profile candidate in that space. Not too hard when your competition is Matthew Kacsmaryk and Lawrence Van Dyke.

[Anonymous User]

More obscure subject but the new Oldham “justice” requirement for granting habeas is even nuttier than the more high-profile ones. There’s not even a colorable argument for it (and Oldham didn’t find one, it’s just purely results-driven). And again it’s supposedly in his area of special expertise. And I say this as someone who generally sympathizes with the pretty radical Thomas/Gorsuch approach to habeas law.

He’s engaged in a sort of project of abandoning originalism and textualism for the sake of getting conservative results without shedding the lingo like the common good folks do. If anything, he dials up the lingo. For clerks sympathetic to that project, or willing to play ball with it, he’s probably a great clerkship. Plus the odds he ends up on SCOTUS seem substantial.

GOP powers-that-be have made clear that they view Gorsuch/Kavanaugh as a failure of the “conservative legal movement,” and that they will look for more results-oriented candidates in the future. It looks like Oldham is positioning himself as the most high-profile candidate in that space. Not too hard when your competition is Matthew Kacsmaryk and Lawrence Van Dyke.

I have never heard anyone in the so-called "conservative legal movement" describe Gorsuch or Kavanaugh as a failure. People may grumble about Kavanaugh's institutionalist tendencies, or Gorsuch's Bostock/McGirt opinions, but "failure?" Next to Roberts? No.

Your posts show a lot of contempt for conservatives, but a superficial/confused sense of who they are and what they believe. The criticisms of Oldham's Netchoice opinion (which I assume you posted) are equally uninformed.

As the alleged "Oldham clerk" tried to explain, the Netchoice issues are complex and largely unresolved, and how they're resolved will have major ramifications for our society's future. Coming here to spew talking points and headlines may be emotionally gratifying in some perverse, lowest-common-denominator way, but unless you actually understand what you're criticizing, you're just embarrassing yourself and contributing to the further degradation of civil discourse.

[Anonymous User]

Most conservative legal circles are disappointed in BK. His Texas standing opinion, his VRA section 2 vote, his whiny concurrences, the "please love me WaPo" (hint buddy they never will) that comes through in his writing. Just ick.

Gorsuch doesnt rate as bad for some reason (I am not sure that's fair; McGirt is worse than any number of BK concurrences and McGirt is not Gorsuch's only big mistake). I think its because Gorusch doesnt come across as craven; he's always arrogant and periodically, catastrophically wrong but at least he always has his chin up and will look you in the eye.

[Anonymous User]

More obscure subject but the new Oldham “justice” requirement for granting habeas is even nuttier than the more high-profile ones. There’s not even a colorable argument for it (and Oldham didn’t find one, it’s just purely results-driven). And again it’s supposedly in his area of special expertise. And I say this as someone who generally sympathizes with the pretty radical Thomas/Gorsuch approach to habeas law.

He’s engaged in a sort of project of abandoning originalism and textualism for the sake of getting conservative results without shedding the lingo like the common good folks do. If anything, he dials up the lingo. For clerks sympathetic to that project, or willing to play ball with it, he’s probably a great clerkship. Plus the odds he ends up on SCOTUS seem substantial.

GOP powers-that-be have made clear that they view Gorsuch/Kavanaugh as a failure of the “conservative legal movement,” and that they will look for more results-oriented candidates in the future. It looks like Oldham is positioning himself as the most high-profile candidate in that space. Not too hard when your competition is Matthew Kacsmaryk and Lawrence Van Dyke.

I have never heard anyone in the so-called "conservative legal movement" describe Gorsuch or Kavanaugh as a failure. People may grumble about Kavanaugh's institutionalist tendencies, or Gorsuch's Bostock/McGirt opinions, but "failure?" Next to Roberts? No.

Your posts show a lot of contempt for conservatives, but a superficial/confused sense of who they are and what they believe. The criticisms of Oldham's Netchoice opinion (which I assume you posted) are equally uninformed.

As the alleged "Oldham clerk" tried to explain, the Netchoice issues are complex and largely unresolved, and how they're resolved will have major ramifications for our society's future. Coming here to spew talking points and headlines may be emotionally gratifying in some perverse, lowest-common-denominator way, but unless you actually understand what you're criticizing, you're just embarrassing yourself and contributing to the further degradation of civil discourse.

I’m really surprised that you haven’t. After Bostock, rhetoric about the “failure” of the movement was commonplace. To be clear, I’m not talking about elite fed soc professors at top law schools. I’m talking about conservative politicians and commentators. People like Josh Hammer. Ron DeSantis publicly said that Trump’s SCOTUS picks were not good enough and that he would model his picks after Thomas/Alito. Look at Vivek Ramaswamy’s shortlist for SCOTUS. Honestly it sounds like you just haven’t been paying attention.

Also, I’m conservative and clerked for a conservative judge. I didn’t post the criticism of Netchoice (though I think it is a bad opinion). I did post the criticism of Alliance for Hippocratic Medicine v. FDA, which I think is much worse than Netchoice.

Believe it or not, I have met many fellow conservative attorneys who are surprised to see Oldham’s decision making, which seems to align more with politics than legal principles in some high profile cases. I think that’s sad, because he’s obviously brilliant and could be a fantastic impartial judge.

[Anonymous User]

Most conservative legal circles are disappointed in BK. His Texas standing opinion, his VRA section 2 vote, his whiny concurrences, the "please love me WaPo" (hint buddy they never will) that comes through in his writing. Just ick.

Gorsuch doesnt rate as bad for some reason (I am not sure that's fair; McGirt is worse than any number of BK concurrences and McGirt is not Gorsuch's only big mistake). I think its because Gorusch doesnt come across as craven; he's always arrogant and periodically, catastrophically wrong but at least he always has his chin up and will look you in the eye.

McGirt is absolutely correct.

[Anonymous User]

I’m really surprised that you haven’t. After Bostock, rhetoric about the “failure” of the movement was commonplace. To be clear, I’m not talking about elite fed soc professors at top law schools. I’m talking about conservative politicians and commentators. People like Josh Hammer. Ron DeSantis publicly said that Trump’s SCOTUS picks were not good enough and that he would model his picks after Thomas/Alito. Look at Vivek Ramaswamy’s shortlist for SCOTUS. Honestly it sounds like you just haven’t been paying attention.

Also, I’m conservative and clerked for a conservative judge. I didn’t post the criticism of Netchoice (though I think it is a bad opinion). I did post the criticism of Alliance for Hippocratic Medicine v. FDA, which I think is much worse than Netchoice.

Believe it or not, I have met many fellow conservative attorneys who are surprised to see Oldham’s decision making, which seems to align more with politics than legal principles in some high profile cases. I think that’s sad, because he’s obviously brilliant and could be a fantastic impartial judge.

No one takes Josh Hammer seriously. Ramaswamy's "shortlist" was a group of random names he chose out of a hat, and of course someone running against Trump is going to say he'd pick more conservative nominees. Otherwise, what is the point of not voting for Trump again? No one outside of about 10 people cares about this stuff, hence why Trump is easily going to be the nominee again.

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This take is either just wrong or so lacking in nuance that it is unhelpful.

It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:

- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response

- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property

- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages

- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree

- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy


As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.

This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.

All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.

Found the Oldham clerk.

Seriously though, Netchoice isn’t even the worst offender among Oldham’s seemingly politically-motivated decisions. For example, the standing analysis in Alliance for Hippocratic Medicine v. FDA is far worse, especially given Oldham’s background as a Fed Courts professor.

This paper is the most thorough and convincing debunking of Oldham's NetChoice opinion—at least the common carrier part: https://papers.ssrn.com/sol3/papers.cfm ... id=4716522. It doesn't criticize him for abandoning Supreme Court precedent (which is limited) but because he chides the platforms for their "historical amnesia" then produces a really bad historical analysis. To be fair, it says Newsom's analysis was off, too.

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This take is either just wrong or so lacking in nuance that it is unhelpful.

It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:

- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response

- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property

- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages

- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree

- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy


As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.

This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.

All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.

Found the Oldham clerk.

Seriously though, Netchoice isn’t even the worst offender among Oldham’s seemingly politically-motivated decisions. For example, the standing analysis in Alliance for Hippocratic Medicine v. FDA is far worse, especially given Oldham’s background as a Fed Courts professor.

This paper is the most thorough and convincing debunking of Oldham's NetChoice opinion—at least the common carrier part: https://papers.ssrn.com/sol3/papers.cfm ... id=4716522. It doesn't criticize him for abandoning Supreme Court precedent (which is limited) but because he chides the platforms for their "historical amnesia" then produces a really bad historical analysis. To be fair, it says Newsom's analysis was off, too.

There are many problems with this paper's analysis. Assuming social media companies don't use public infrastructure, ignoring the government's role in their development, taking for granted they don't hold themselves out to the public...

Also ignoring statutory definitions because: “If a common carrier enjoys fewer constitutional protections than another private business, then a legislature can’t be permitted to define who is a 'common carrier' by statute. Otherwise, legislatures would have the power to strip businesses of their constitutional rights.”

Still, I enjoyed the paper as it explains the history of common carriers, and I learned much from it. Because it is presented as a takedown of Justice Thomas and Judge Oldham, it will be well-received by the legal academy. That doesn't mean its conclusions are sound.

[Anonymous User]

Nobody who praises Oldham can complain about judges being “results-oriented” ever again. On the wide spectrum of the Fed Soc world he stands out as an outlier for regularly writing batshit opinions.

If that's what a conservative applicant wants, he's certainly (one of) their guy(s). But the idea that he's brilliant or writing these incredible opinions when he forces a Republican W in a case they should lose is not a serious claim. Comparing his NetChoice opinion to Judge Newsom's amply demonstrates how poorly he measures up to a conservative judge who is actually brilliant and fairly principled.

This take is either just wrong or so lacking in nuance that it is unhelpful.

It seems to me that those who dismiss Oldham's Netchoice opinion out of hand as hackery are giving him short shrift. Newsom and Oldham both agree that the issue presented is a novel issue. They both also agree that there are only a few prior SCOTUS cases that are analogous and thus relevant to the determination of the case, and that their holdings are definitely not all aligned in the same way when it comes to resolving the issue of social media platform moderation:

- Miami Herald v. Tornillo (1974): newspaper has the right to criticize someone without being forced to print a response

- Pruneyard v. Robins (1980): a shopping mall cannot exclude peaceful protesters from their property

- PG&E v. Public Utilities Comm'n (1986): utility sending monthly newsletter to customers along with their bill cannot be forced to include ratepayers' messages

- Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995): parade organizers cannot be forced to include groups with which they disagree

- Rumsfeld v. FAIR (2006): law schools could not refuse to allow military recruiters to come and give recruiting pitches to students on campus, even if the school disagreed with Don't Ask Don't Tell policy


As is perhaps obvious, Miami Herald, PG&E, and Hurley all look like favorable precedent for the platforms, and Newsom points to these in his opinion. But Pruneyard and Rumsfeld present a case for the governments hoping to regulate the platforms, which Oldham points to in his opinion. From where I sit, saying that either one of those positions is hackery is, well, hackery. The precedent is mixed. It isn't clear whether moderating speech is speech in this case; Miami Herald doesn't involve content moderation at all (it's a compelled speech case), PG&E and Hurley all hold that a group excluding speech is itself speech, and Pruneyard and Rumsfeld both go the other way.

This is leaving aside the common carrier analysis which Oldham argues in the alternative in his opinion. Newsom doesn't address the argument at all. It's an interesting position that mirrors and expands Justice Thomas's arguments in Biden v. First Amendment Institute (2021). May be right, may be wrong, but certainly doesn't go against precedent since the Court hasn't really ruled on this theory.

All this to say, those who hate Oldham's opinion are welcome to hate it, but to say it isn't at least a defensible position is to pretend that our First Amendment jurisprudence is much clearer than it is when it comes to platform content moderation. The issue is thorny, and two conservatives came out different ways on it, each for precedent-based reasons. Same as it ever was.

Found the Oldham clerk.

Seriously though, Netchoice isn’t even the worst offender among Oldham’s seemingly politically-motivated decisions. For example, the standing analysis in Alliance for Hippocratic Medicine v. FDA is far worse, especially given Oldham’s background as a Fed Courts professor.

This paper is the most thorough and convincing debunking of Oldham's NetChoice opinion—at least the common carrier part: https://papers.ssrn.com/sol3/papers.cfm ... id=4716522. It doesn't criticize him for abandoning Supreme Court precedent (which is limited) but because he chides the platforms for their "historical amnesia" then produces a really bad historical analysis. To be fair, it says Newsom's analysis was off, too.

There are many problems with this paper's analysis. Assuming social media companies don't use public infrastructure, ignoring the government's role in their development, taking for granted they don't hold themselves out to the public...

Also ignoring statutory definitions because: “If a common carrier enjoys fewer constitutional protections than another private business, then a legislature can’t be permitted to define who is a 'common carrier' by statute. Otherwise, legislatures would have the power to strip businesses of their constitutional rights.”

Still, I enjoyed the paper as it explains the history of common carriers, and I learned much from it. Because it is presented as a takedown of Justice Thomas and Judge Oldham, it will be well-received by the legal academy. That doesn't mean its conclusions are sound.

This is an odd response. Doesn’t the paper say the platforms hold themselves out, but that makes them public accommodations, not common carriers? It also talks about Section 230 and government franchises quite a bit. I read it to give some very specific standards for government franchises that match the history, but you’re resorting to vague language about “us[ing] public infrastructure” and “the government’s role in their development.” If we apply those hazy standards, I suppose you can make anything a common carrier if you want to.

[Anonymous User]

Are you all really seriously discussing an unpublished 100-page paper by a YLS 3L?

[Anonymous User]

Are you all really seriously discussing an unpublished 100-page paper by a YLS 3L?

Seriously, and not even an especially compelling one. Back on topic: Judge Oldham is, by all accounts, a great mentor. I wouldn't hesitate to clerk for him if I was anywhere right of center, even if I didn't agree with all his takes.

[Anonymous User]

Any insight into the experience clerking for Judge Rao?