2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.
In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”
2020—Under Ninth Circuit precedent, “a motions panel’s published opinion binds future panels the same as does a merit panel’s published opinion.” But over the objection of Judge Ferdinand Fernandez, Judge William Fletcher, joined by Judge Richard Paez, disregards a motions panel’s published opinion in the very same case and rules (in Innovation Law Lab v. Wolf) that plaintiffs challenging the federal government’s Migrant Protection Protocols are entitled to a preliminary injunction.
2022—Over the dissent of Judge Carlos Bea, a Ninth Circuit panel approves what it calls a “very modest extension” of the judicially invented Bivens damages remedy against federal officers for constitutional violations. But as Bea objects in dissent, the Supreme Court has never recognized a Bivens remedy for Eighth Amendment excessive-force claims.
Months later, after the Supreme Court’s ruling in Egbert v. Boule, the panel will withdraw its opinion and replace it with a short unpublished opinion that adopts Bea’s position.