This Day in Liberal Judicial Activism—June 29

by Ed Whelan

1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:


Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.

To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.

Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.


Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:


The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.

The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.

This Day in Liberal Judicial Activism—June 28

by Ed Whelan

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

University of Texas Sued — Again

by Roger Clegg

The University of Texas has been sued, again, for its racially discriminatory undergraduate-admissions policy. This time, the claim has been brought in state court, and the allegation is that the policy violates the state constitution’s ban on such discrimination. It’s asserted that the “diversity” exception that have been carved out of federal antidiscrimination law in student admissions doesn’t exist in Texas law.

The lawsuit has been brought by Students for Fair Admissions (SFFA) — a nonprofit membership organization made up of over 21,000 students, parents, and others. SFFA has members who were recently rejected from UT; its president is Edward Blum, who was the principal force behind Fisher v. University of Texas, which twice went to the U.S. Supreme Court. SFFA also has pending lawsuits against Harvard and the University of North Carolina–Chapel Hill.

This is great news, and kudos to Mr. Blum, his lawyers, and of course most of all to the SFFA. It’s important for universities that insist on engaging in this sort of discrimination to know that the political and legal pressure on them to stop will be unremitting and resourceful, and that message is being sent, loud and clear. As the press release notes: “According to a Gallup Poll conducted days after Fisher was decided last year, ’seven in 10 American say merit should be the only basis for college admissions’ and ‘65% disagree with the Supreme Court decision allowing race to be a factor.’”

This Week in Judicial Supremacist Arrogance (Continued): Planned Parenthood v. Casey

by Michael Stokes Paulsen

This Thursday marks the twenty-fifth anniversary of the worst Supreme Court decision of all time.   Planned Parenthood v. Casey is worse than Roe, which itself ranks among the worst decisions of all time.  Casey reaffirmed Roe’s creation of a right to abortion – a constitutional right of some human beings to kill other distinct, living human beings.  Roe was textually, historically, and morally indefensible. Casey is even worse, and what makes it worse was the Court’s full awareness of the wrongness of Roe in all these respects, the deliberate attempted entrenchment of Roe notwithstanding this awareness, and the base motivation for doing so. 

The justices in Casey knew Roe was indefensible.  They reaffirmed it anyway, not because a majority thought Roe was right – it is plain that they did not – but because a controlling bloc thought that public perceptions of the justices, and the justices’ own self-image required them to adhere to Roe “whether or not mistaken.”  The justices’ power depended (or so they seemed to feel) on sticking to errors on which the Court had staked its authority, so that all those “tested by following” would continue to trust the Court and accede to its proclamation of authority to “speak before all others” on constitutional questions. 

Casey is the supreme example of judicial supremacist arrogance.  The decision is wrong, legally.  (The reliance on stare decisis was an obviously contrived pretext.)  The decision was wrong, morally, upholding one of the worst ongoing moral atrocities in the history of humankind.  And the decision was wrong, knowingly, deliberately and intentionally.  It was done for the most craven and reprehensible of reasons: vanity, self-importance, and a desire to further personal power and image. 

There’s much more that could be said, but I said most of it fifteen years ago, in a tenth-anniversary article for the Notre Dame Law Review (linked above, in the first line of this post) and five years ago in two short essays for the web magazine The Public Discourse, on the occasion of the twentieth anniversary of Casey.  (See here and here.) 

June 29, 1992 is a day that shall live in constitutional infamy.       

This Day in Liberal Judicial Activism—June 27

by Ed Whelan

1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Justice Breyer, who provides the decisive fifth vote in each case, explains that for “difficult borderline cases” that are “fact-intensive,” there is “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment, be assured, “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.” The particular factor that Breyer finds “determinative” in the Texas case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”

Thus, under Breyer’s view (as well as that of the other members of the Kentucky majority), American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage.

 

This Week in Judicial Supremacist Arrogance: City of Boerne v. Flores at Twenty

by Michael Stokes Paulsen

I’m stealing a page from Ed Whelan’s playbook and launching a series of (occasional) commemorations of acts of unbridled judicial chutzpah.  Ed’s series focuses on judicial activism – judicial interpretations that flout governing law.  Mine will highlight assertions of judicial supremacy – the Supreme Court’s arrogant claim that its interpretations of the Constitution, right or wrong, are binding on all other actors in our constitutional system.

The claim of judicial supremacy of course cannot be squared with constitutional text, structure, or evidence of original understanding. (This is a recurrent theme in my academic writing.  Two years ago, for Bench Memos, I wrote a series of five posts dedicated to this theme: here, here, here, here, and here.)   Nonetheless, predictably enough, the claim of judicial supremacy is affirmed by a wealth of self-serving judicial precedent. 

The immediate occasion for starting this series is the twentieth anniversary, this past Sunday, of City of Boerne v. Flores.  (Planned Parenthood v. Casey, winner of the Grand Prize for judicial arrogance, suffers its twenty-fifth anniversary later this week.) 

In City of Boerne, the Court held that the requirements of the Religious Freedom Restoration Act of 1993 (“RFRA”) were unconstitutional insofar as they applied to state governments. The Court held – contrary to text, structure, history, and precedent – that Congress’s power to “enforce” the provisions of the Fourteenth Amendment against states, pursuant to section five of the amendment, is limited to enforcing the Court’s understanding of those provisions. 

RFRA took as its starting point a broad understanding of the religious liberty protected by the Free Exercise Clause of the First Amendment. The Court had, just three years earlier, in Employment Division v. Smith (1990), adopted a narrow reading of the Free Exercise Clause – departing from its earlier precedents, which had adopted a broader view of the clause.  Congress sought to restore that earlier, broader protection of religious liberty by means of a statute.  The Court in City of Boerne held that Congress was constitutionally forbidden from enforcing against state governments any broader understanding of religious liberty than set forth in the Court’s current judicial doctrine – even though that broader understanding had been the Court’s own doctrine for nearly thirty years. 

The Court in City of Boerne seemed to take umbrage at the impudence of Congress in not going along with the Court’s new understanding in Smith.  The Court’s framing of the case fairly drips with contempt for Congress’s act of constitutional disagreement.   Congress’s rather direct disagreement with Smith appeared to be a significant factor in the Court’s decision. “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause,” the Court explained.  (Didn’t they know?  Only the judiciary can alter the meaning of the Free Exercise Clause!)

How many different ways is City of Boerne wrong?  Put to one side for a moment the fact that Employment Division v. Smith was a deeply questionable decision on the merits of its interpretation of the Free Exercise Clause in the first place. (The broad understanding of Free Exercise is the better view.  But that is not my primary point here.)  The core problem with City of Boerne is the judicial supremacist conceit that the Court is the only truly authoritative constitutional interpreter. The Constitution’s meaning, under the approach of the Boerne opinion, actually goes up (and down) with the Supreme Court’s decisions.  Congress’s power “to enforce” generally-stated limitations on state governments “by appropriate legislation” is limited to implementing the Court’s diktats.  Congress’s enforcement power is hitched to the Court’s activist wagon, wherever it goes at any particular point in time.  Congress has no independent interpretive power in enforcing the Fourteenth Amendment.  The Supreme Court is the boss.  Congress is the assistant or adjunct. 

There are at least four related reasons why this is conception is way off the mark. 

Keep reading this post . . .

Today’s Big Victory for Religious Liberty

by Ed Whelan

In Trinity Lutheran Church v. Comer, the Supreme Court ruled today that the state of Missouri violated the Free Exercise rights of a church when it excluded religious organizations from taking part in a program of grants for playground resurfacing. As Chief Justice Roberts summed things up near the end of his majority opinion for six justices, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

Contradicting early predictions of a ruling sharply divided on ideological grounds, Justice Kagan joined the Chief’s opinion in full, and Justice Breyer wrote an opinion concurring in the judgment. Breyer “agree[s] with much of what the Court says” but (consistent with his general approach) is reluctant to sign on to any broad principle.

Only Justices Sotomayor and Ginsburg dissented. Remarkably, they opined that the Establishment Clause is violated by allowing Trinity Lutheran to take part in the grant program (an argument that the state itself rejected). They also would have held that the Free Exercise Clause allowed Missouri’s exclusion of churches from the grant program.

 

(Justices Thomas and Gorsuch declined to join one footnote in the Chief’s opinion that they said was “entirely correct” but that they feared “some might mistakenly read” to refuse to apply the “legal rules recounted in and faithfully applied by the Court’s opinion.”)

This Day in Liberal Judicial Activism—June 26

by Ed Whelan

1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.

2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.”

It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”

This Day in Liberal Judicial Activism—June 25

by Ed Whelan

1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.

2008— By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.

This Day in Liberal Judicial Activism—June 24

by Ed Whelan

1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court!

This Day in Liberal Judicial Activism—June 23

by Ed Whelan

2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.

It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.

Fact-Checking the Fact Checker

by Ed Whelan

In today’s “Fact Checker” column in the Washington Post, Michelle Ye Hee Lee tries to take issue with this passage from Justice Alito’s recent concurring opinion in Packingham v. North Carolina:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

Alito’s second sentence quotes from Justice Kennedy’s 2002 opinion in McKune v. Lile. As Lee notes, Kennedy’s McKune opinion in turn cites a 1997 Bureau of Justice Statistics report that states:

Released rapists were 10.5 times more likely than nonrapists to have a subsequent arrest for rape. Prisoners who had served time for other sexual assaults were 7.5 times more likely than those who had not served time for sexual assault to be arrested for a new sexual assault.

Alito’s second citation is to Kebodeaux, which, as Lee puts it, “cites an updated version of the 1997 [BLJ] report,” a report that “is considered one the most comprehensive studies on sex offender recidivism.” Kebodeaux (again, still quoting Lee) “cites the report’s finding that released sex offenders were four times more likely to be rearrested for a sex crime than non-sex offenders, and 5.3 percent of sex offenders were rearrested for a sex crime within three years after release.” (Emphasis added.)

You’d think that all of this would be enough to demonstrate to Lee that Alito’s passage has things right. But then we get this strange paragraph from her:

On the surface, comparing 1.3 percent to 5.3 percent makes it seem like sex offenders are four times more likely to commit a sex crime after release. But the 1.3 percent represents 3,328 of 262,420 released non-sex offenders. So out of the total of 3,845 people arrested post-release on sex crimes, 13 percent were prior sex offenders.

Lee contends that the comparison in her first sentence somehow only “seem[s]” sound “[o]n the surface. But her next two sentences—the heart of her supposed refutation of Alito—don’t in fact refute it and instead commit the very “apples-and-oranges comparison” that she wrongly accuses Alito of.*

Lee’s supposed “gotcha” is that, because sex offenders are only a small portion of the overall population of criminal convicts, prior sex offenders account for only 13% of the people “arrested post-release on sex crimes.” But Alito never said the contrary. So Lee is fact-checking, and purporting to correct him on, a proposition of her own invention.

Lee proceeds to argue that the “rate of getting arrested for the same crime is lowest among sex offenders compared to non-sex offenders, with the exception of people convicted of homicide.” (Emphasis added.) I’ll take her word for it. But, again, she’s not disputing anything that Alito actually wrote.

Lee concludes that Alito “makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem.” (Emphasis added.) But Alito’s far narrower point, as his first sentence puts it, is simply that repeat sex offenders “pose an especially grave risk to children.” How does Lee imagine that the higher recidivism rates that she presents for fraud or motor-vehicle theft undermine that point?

* I tweaked this sentence about an hour after initial posting.

This Day in Liberal Judicial Activism—June 21

by Ed Whelan

1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.” 

This Day in Liberal Judicial Activism—June 20

by Ed Whelan

2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”  

This Day in Liberal Judicial Activism—June 18

by Ed Whelan

1973—By a vote of five justices, the Supreme Court rules in United States v. SCRAP that plaintiffs, including a group of law students (“Students Challenging Regulatory Agency Procedures”), have standing to challenge the Interstate Commerce Commission’s decision not to suspend a 2.5% freight rate increase.

What is the alleged injury on which their standing is based? As the majority sums it up, the rate increase “would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area,” thus causing the plaintiffs economic, recreational and aesthetic harm. The majority even acknowledges that the case presents “a far more attenuated line of causation to the eventual injury” than in a case the previous year in which the Court found no standing, and it further observes that “all  persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. ”

1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

This Day in Liberal Judicial Activism—June 17

by Ed Whelan

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)  

This Day in Liberal Judicial Activism—June 15

by Ed Whelan

1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.”

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

 

Ludicrous Misreading of Americans with Disabilities Act

by Ed Whelan

The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.

The crystalline clarity of this provision somehow didn’t stop federal district judge Joseph H. Leeson, Jr. In a ruling last month in Blatt v. Cabela’s Retail, Inc., Leeson denied an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.

Let’s trace Leeson’s somersaults of reasoning:

1. Noting that the employee contended that the ADA’s exclusion of gender identity disorders would violate the Constitution, Leeson invokes the canon of constitutional avoidance in interpreting the ADA. Under the canon of constitutional avoidance, if a serious doubt is raised as to the constitutionality of a federal law, a court will determine whether there is a “fairly possible” alternative interpretation of the federal law that avoids the constitutional issue.

One tiny problem: Leeson never bothers to explain how reading the ADA to mean what it says would present any constitutional problem. Oh, I’m sure that some academic somewhere could spin some theory about how some norm implicit in some penumbra of some emanation of some simple word in the Constitution could require that any federal law that protects against discrimination on the basis of disabilities somehow also protect against discrimination on the basis of gender identity disorders. But Leeson doesn’t even try to spell out such a theory. He simply assumes, without a single word of explanation, that the ADA’s exclusion of “gender identity disorders not resulting from physical impairments” is constitutionally problematic.

2. This is beyond bizarre: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

What?!?

We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders? That’s nuts.

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?

This Day in Liberal Judicial Activism—June 14

by Ed Whelan

1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

 

Sixth Circuit to Hear Important Establishment-Clause Case

by Daniel Blomberg

This week, the en banc Sixth Circuit will hear Bormuth v. County of Jackson. The case illustrates how broken establishment-clause jurisprudence has long been. But as Becket and Stanford Law School professor Michael McConnell argue in our amicus brief, it’s also a great case for recognizing that the fix is now at hand. And it may well open up an avenue for the Supreme Court to ensure the fix is final.

Readers of Bench Memos well know that the Supreme Court broke the establishment clause about 45 years ago with its decision in Lemon v. Kurtzman. That decision exiled standard constitutional analysis and its focus on historical understanding, and replaced it with a vague, stitched-together purpose/endorsement/entanglement test. As Seventh Circuit judge Frank Easterbrook noted in a 2012 dissent, Lemon’s concoction was simply “made up by the Justices.” And judicial consensus quickly developed that the concoction was inherently unstable and impracticable, leaving courts — to quote now-Justice Gorsuch (who was himself quoting a Sixth Circuit opinion) — in “Establishment Clause purgatory.”

That purgatory has lasted for decades. Lemon became Justice Scalia’s infamous undying “ghoul in a late night horror movie,” toppling memorials to police officers, shuttering ministries to prisoners, and censoring historic landmarks. Impervious to repeated judicial attempts to ward it off, Lemon lurched on, outliving even Justice Scalia. Or so it appeared.

But a closer look at the Supreme Court’s 2014 decision in Town of Greece v. Galloway shows that Lemon is, at long last, dead. In 180-degree contrast to Lemon’s historical agnosticism and arbitrary line-drawing, Town of Greece set a new standard that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” In the post-Lemon era, Town of Greece directs that “any test” under the establishment clause must acknowledge history. As Justice Alito elaborated in concurrence, if there is any daylight between a judicial test and historical practice, that “calls into question the validity of the test, not the historic practice.”

In a 2015 concurrence, Sixth Circuit Judge Alice Batchelder correctly recognized Town of Greece as a “major doctrinal shift” that worked “a sea change in constitutional law.” While the change is dramatic, it isn’t unheralded. Actions speak louder than words, and the writing on the wall here was that the Supreme Court last applied Lemon to determine the merits of an establishment-clause claim in 2005. By contrast, both of its establishment-clause decisions in the last five years — Hosanna-Tabor and Town of Greece — relied explicitly and heavily on history to guide the Court’s interpretation of the clause.

And it’s not like courts cannot figure out what the establishment clause means. Earlier this year, in fact, Tenth Circuit judges Paul Kelly and Timothy Tymkovich drew on Town of Greece and Professor McConnell’s historical research to identify six “general features” of an historical establishment of religion: “‘(1) [state] control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.’” State action that presents these features will normally violate the establishment clause, and if they are absent, the state action will not constitute an impermissible establishment.

But the lower courts still feel haunted by Lemon. Which brings us back to the Sixth Circuit, where the Bormuth case essentially centers on Lemon’s hopelessly sloppy endorsement prong. The pagan animist plaintiff, Peter Bormuth, claims that the county commission’s prayer habits (and a few unkind words) made him feel so unwelcome that he was unconstitutionally intimidated from participating in county meetings. His primary complaint was not with prayers, but with who prayed them: the legislators themselves, not chaplains or visiting ministers, both of which the Supreme Court has already said are okay.

The now-vacated (and sharply split) panel opinion agreed with Bormuth. Never mind that he appears to have quickly gotten over the alleged intimidation: his personal webpage lists several videos of him confidently speaking to the county commission since he filed his lawsuit, including to wish the commissioners a happy Solstice and to address the female commissioners specifically about the dangers of breast cancer. Nor did it matter to the panel that Bormuth has a history of firing off federal lawsuits. His past cases include claims of religious discrimination against a community college (for a poetry reading where a Christian woman allegedly read before he could), the Michigan secretary of state (for allegedly conspiring with the state Democrat party to rig a primary in favor of a Christian minister), and a private nonprofit nature preserve (for denying him access to the park after he threatened to violently hex park staff).

So what happened? As Judge Griffin’s dissent persuasively explained, the panel majority got stuck on Lemon. Which is surprising, since not only is Town of Greece directly on point as a legislative-prayer case, but Justice Alito’s concurring opinion also pointed to a nearby Michigan county and city’s practice of legislator-led prayer as both constitutionally innocuous and rather common. More importantly, Town of Greece required historical analysis for all future establishment-clause cases. Yet the panel struck down a legislative-prayer practice without a jot or tittle of history. Instead, it turned entirely on what was effectively Lemon’s endorsement prong.

Notably, the en banc Sixth Circuit’s decision to vacate the panel opinion augurs well. But the en banc Fourth Circuit is also considering a similar legislative-prayer case and it appears ready to continue following Lemon. So the Supreme Court may soon need to intervene to clarify that Lemon is really and truly dead.

In any event, the time is now at hand for courts to exorcise Lemon’s ghost and follow Town of Greece’s command to treat historical analysis as the touchstone of establishment-clause analysis.

– Daniel Blomberg is legal counsel at Becket.