Particle Physics and the Southern District of New York, Wall Street Bets, and Obergefell
It's Pride month and last week was the 5th anniversary of Obergefell v. Hodges. This case held the 14th Amendment requires recognition of same-sex marriages. That was a huge step forward for LGBT+ rights in the United States. But it's also important to remember that in each of these cases there's often a human that went to extraordinary lengths and overcame extreme opposition to right a wrong.
The above is a picture of Jim Obergefell holding a picture of his late husband John Arthur. Jim and John met, fell in love, and spent many years together. John was eventually diagnosed with ALS, a terminal illness. When John received his diagnosis same-sex marriages weren't recognized in Ohio where they lived. Maryland did allow for same-sex marriages though. Jim and John wanted to tie the knot before John passed so they flew from Ohio to Maryland. Due to how frail John was they had to take a medical transport plane and hosted a ceremony on the tarmac in Maryland. Ohio refused to list John as the surviving spouse on the death certificate when John passed shortly after their marriage. Justice Kennedy described these events in the opinion of the court:
Recounting the circumstances of three of these cases illustrates the urgency of the petitioners’ cause from their perspective. Petitioner James Obergefell, a plaintiff in the Ohio case, met John Arthur over two decades ago. They fell in love and started a life together, establishing a lasting, committed relation. In 2011, however, Arthur was diagnosed with amyotrophic lateral sclerosis, or ALS. This debilitating disease is progressive, with no known cure. Two years ago, Obergefell and Arthur decided to commit to one another, resolving to marry before Arthur died. To fulfill their mutual promise, they traveled from Ohio to Maryland, where same-sex marriage was legal. It was difficult for Arthur to move, and so the couple were wed inside a medical transport plane as it remained on the tarmac in Baltimore. Three months later, Arthur died. Ohio law does not permit Obergefell to be listed as the surviving spouse on Arthur’s death certificate. By statute, they must remain strangers even in death, a state imposed separation Obergefell deems “hurtful for the rest of time.” He brought suit to be shown as the surviving spouse on Arthur’s death certificate.
These kinds of cases showcase human courage and perseverance to help make the United States a better place. It's important to remember the people in those stories when celebrating their accomplishments in the highest court.
Thumb Gambling Gone Wild
Let's talk about a silly topic: Wall Street Bets and Robinhood traders.
The stock trading app Robinhood helped bring commission-free trading to the masses through a phone app. The Reddit community r/wallstreetbets brings out the best of the worst of those traders. It's one of my favorite communities to follow—mostly because it's hilarious—but it's also a springboard for the absolutely reckless to disrupt normal flows in finance. Namely, a large cohort of thumb gamblers goes out of their way to invest in nearly bankrupt companies and broke ETFs. When Hertz was worth negative 1.8 billion Robinhood traders bought the stock because it was cheap. And who cares if the stock might go to 0 so long as it goes from 2 dollars a share to 5 before that happens.
The mods of /r/wallstreetbets have a new website and their first article is up predicting a wave of stock splits to accommodate bargain hunting Millenials. Check it out.
Schrödinger's United States Attorney
And now for something completely different.
Let's talk about particle physics, the Southern District of New York and SDNY's recent history of confusing firings during the Trump Administration. When the Trump Admin took over in 2017 several US Attorneys were asked to resign. Preet Bharara was the US Attorney at the time for SDNY and President Trump assured him he would keep his gig despite several US Attorneys getting dismissed under the new Admin. But, shortly thereafter, then-Attorney General Jeff Sessions fired Bharara anyway. Sessions then handpicked Geoffrey Berman to replace Bharara on an interim basis of 120 days. The Trump Admin needed to pick a replacement in that timeframe and have them confirmed by the Senate. Instead of doing that the 120 days lapsed and the Court appointed Berman using the power of the judiciary to occupy the position until a new candidate was confirmed by the Senate.
Attempting to get rid of Berman the other week became far more complicated than Bharara's dismissal due to the reliance on the Court appointing Berman rather than going through a Senate confirmation. And, for fun, we'll explain what happened with a gratuitous analogy to Schrödinger's Cat.
Schrödinger's Cat is a famous thought experiment developed by physicist Erwin Schrödinger in the course of discussions with Albert Einstein to describe quantum superposition. A particle can exist in one state or another depending on a random subatomic event that may or may not occur. Schrödinger described this confusing situation and what it means using a cat in a box with a hammer on a lever connected to radioactive atom. If the radioactive atom decays, the hammer falls on a vial of poison gas and kills the cat. But until it is observed, that radioactive atom is in a state of superposition, meaning it has both decayed and not decayed simultaneously. Thus, the cat remains both alive and dead simultaneously until the atom's state is observed.
(Photo attribution: Dhatfield)
In an unfortunate development for Berman, he became the metaphorical cat in the box. His position existed in a state of superposition where to describe his role in government you needed to presume he was both fired and not fired at the same time.
Image taken from the totally real and not fake at all audition of Geoffrey Berman for the 2019 film adaptation of Cats.
Unlike Bharara, the Attorney General couldn't fire Berman. The Attorney General didn't give him the power to occupy the position of United States Attorney for SDNY—the Court did and attached a few strings. So the Attorney General lacked the power to fire him. Attorney General Barr instead attempted to pressure Berman out of the office by issuing a statement that he accepted his resignation. This was news to Berman who quickly replied that he had no intention of resigning.
Barr followed up with a letter detailing that the President of the United States exercised his right to fire Berman. Which is a curious move in and of itself. Why would Barr be sending a letter claiming the President fired Berman? Why wouldn't such a letter come from the White House? The answer became clear when President Trump was asked about Berman and declared he never fired him and it was all up to Barr.
Can the President fire a US Attorney appointed by the Court? Can Barr fire someone on behalf of the President he doesn't have the ability to normally fire? Did Berman retain his position? Was Berman fired at all? Did bureaucratic quantum events cause the hammer to drop? We can open the box and observe if Berman is fired or not fired.
Barr is correct that the President has the ability to fire any appointment to the US Attorneys office under Solomon. "As has already been pointed out, the President may, at any time, remove the judicially appointed United States Attorney, pursuant to 28 U.S.C. § 504. The language of subsection (b), "[e]ach United States attorney shall be subject to removal by the President * * *," clearly authorizes the executive to remove any United States Attorney, regardless of the nature of his appointment. The statutory scheme for the temporary appointment by the judiciary of the United States Attorney comports in all respects with due process of law."
The three branches of government don't exist in vacuums from each other. Separation of powers exists but the framework of the government intends that they interact with each other. And Solomon points this out by quoting Madison in the Federalist Papers—"* * * the political apothegm there examined does not require that the legislative, executive, and judiciary departments should be wholly unconnected with each other." The Federalist No. 48, at 343.
But if it's so easy for the President to fire Berman then why did they botch it so awkwardly? While it is true that the President has the Constitutional authority to fire Berman, the court order that appointed him says the position can only be filled by the President using the normal nomination and confirmation process through the Senate. If Berman had resigned then Trump and Barr could appoint someone to the spot following the Federal Vacancies Reform Act, free from the requirements of the order. Because Berman refused to resign though, FVRA dictates that normal succession would go to the second in command at SDNY and that's Audrey Strauss.
Senator Lindsay Graham, Chairman of the Senate Judiciary Committee, indicated he would rather not have a Senate fight over a new appointment by stating that he'd like a blue slip approval from Senate Democrats for any new appointment. So SDNY will continue along its same trajectory without Berman and likely without a Senate-confirmed appointment into the foreseeable future with Audrey Strauss at the helm.
And that's the story of how the United States Attorney for SDNY ended up in the awkward position of existing as Schrödinger's US Attorney.
Why did this all happen? It's hard to say. And I'm not the only one asking that question. President Trump and Barr know. Berman probably knows. Preet Bharara would love to know.
