‘Social Justice’ and Free Speech

by Roger Clegg

Friedrich Hayek famously noted how the word “social” as an adjective effectively means “not” — so that social science is not really science, and social climbing is not really climbing, and of course social justice is not really justice at all.

That came to mind as I read George Leef’s column about a case now being presented to the Rhode Island state supreme court, in which a student at a state school is being denied the opportunity to pursue his degree in social work, because of an unwillingness to advocate for the right kind of social change, all in the name of social justice. Well, social justice or not, there are some First Amendment problems here, and the Cato Institute, National Association of Scholars, and Foundation for Individual Rights in Education (FIRE) have filed an amicus brief urging the court to take the case.

Arguments Separating Fashion Designers from other Artists Aren’t Worthy of the Runway

by Jim Campbell

Freedom of conscience is now mainstream, as many in the fashion industry have raised objections to designing dresses for Melania and Ivanka Trump. In the wake of these “fashionable” objections (which have generally been cheered by the media), my colleagues and I at Alliance Defending Freedom have been discussing the no less serious crises of conscience faced by printers, graphic designers, filmmakers, cake artists, and other creative professionals who hold deep religious beliefs about marriage. All of these individuals are entitled to live by their convictions, as I’ve recently argued in the Washington Post.

Not surprisingly, some disagree with that. Steven Petrow has tried to make the case in the Post that refusing to dress the first lady isn’t like a cake artist who declines to create a custom cake celebrating a same-sex wedding. Claiming that there is “a false equivalency between the bakers and the dressmakers,” his analysis is deeply flawed.

Petrow’s first point is legal, insisting that the cake artist violates the law but that the fashion designer doesn’t. He says that the cake-maker discriminates based on sexual orientation, which is forbidden by law in some cities and states. But the fashion designers discriminate based on politics, and according to Petrow, “[p]olitical affiliation is not a protected class in any state.”

Petrow, however, overlooks that “political affiliation” is indeed a protected class in many places, including the District of Columbia and several large cities like Seattle. So, if Melania sought out a designer in the District and was turned away, that designer would face trouble under local law.

Petrow’s discussion is also unpersuasive because he fails to even consider constitutionally protected freedoms that belong to creative professionals like the cake artist, printer, graphic designer, and filmmaker. That “political affiliation” is included in many nondiscrimination laws shows just how far-reaching and constitutionally problematic those laws have become. Unmoored from their laudable origins and purposes, they now demand indefensible outcomes, like requiring a freelance writer who is an ardent Democrat to write materials praising Republican politicians or policies.

But this conflicts with our nation’s constitutional commitment to freedom of expression and conscience. That is why the Supreme Court has repeatedly concluded in cases like Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston and Boy Scouts of America v. Dale that nondiscrimination laws cannot override expressive and artistic liberties. It is also why, regardless of what some so-called nondiscrimination law might say, the Constitution forbids the government from forcing professionals to speak, promote, or create art for causes that they cannot in good conscience support. Because of these constitutional freedoms, a cake artist does not violate the law by declining to celebrate a same-sex marriage.

Petrow’s next argument also misses the mark. He claims that the fashion designers are motivated by “personal likes and dislikes,” which he believes is okay (apparently animus is acceptable), but that the cake artist unlawfully “refus[es] to provide services to an entire class of people.” Once again, he couldn’t be further from the truth.

Neither the cake artist nor any of the other conscientious professionals mentioned above refuse to serve gays and lesbians as a class. Rather, all of them serve LGBT citizens so long as they aren’t asked to promote or speak a message that celebrates an understanding of marriage at odds with their faith. So, if a gay customer wants brownies for a birthday party, the owner is happy to assist; but a custom cake celebrating a same-sex wedding is off the table. Drawing such a line does not reject “an entire class of people.”

Petrow’s unconvincing arguments show us that it’s time for those who applaud the fashion designers to recognize that another group of artists also deserve their support. Contrary arguments, no matter how they’re dressed up, aren’t worthy of the runway.

— Jim Campbell is senior counsel with Alliance Defending Freedom, which is defending the freedom of conscience of printers, graphic designers, filmmakers, cake artists, and other creative professionals in courts across the country.

No Comment for Now, But Much to Come

by Ed Whelan

For various reasons, I’ve decided not to comment on any of the speculation over whom President Trump will select to fill the pending Supreme Court vacancy. Instead, I’ve been busy reviewing the records of the candidates whom I believe to be in contention.

Within minutes of the time a nominee is announced, I expect to post a lot about the candidate. And I expect to continue to do so in the days and weeks that follow.

Will Congress Split the Ninth Circuit?

by Jonathan H. Adler

The Hill reports that Senator Jeff Flake (R-AZ) is introducing legislation to split up the U.S. Court of Appeals for the Ninth Circuit.  From the report:

“With regard to the court, it’s just access to justice,” Flake said. “Its docket is more than twice as big as the next biggest circuit. This has been a long time coming, and hopefully we can make some progress finally.” 

Flake’s office said the bill will be similar to the legislation he introduced a year ago to establish an additional U.S. circuit court — composed of Arizona, Nevada, Montana, Idaho and Alaska — to relieve what he said at the time is an “oversized and overworked” 9th U.S. Circuit.

The Ninth Circuit is known as the most liberal appellate court in the country, but it’s also the largest and unwieldy.  With nearly 30 authorized seats, the court is so large that it does not sit as a full court when it rehears cases en banc. Republican lawmakers have talked about breaking up the Ninth before, but without success. With unified government, however, that may change. There is also talk of moving a judiciary bill that would create additional judgeships on the courts with the greatest backlogs, and perhaps to rebalance the U.S. Court of Appeals for the D.C. Circuit.

This Day in Liberal Judicial Activism—January 23

by Ed Whelan

1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene. After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”

Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that, as Justice Scalia’s dissent aptly summarizes it, forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.” (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)

1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct. Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence. Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.”

Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994. 

Trump’s Opportunity to Shape the Federal Courts

by Jonathan H. Adler

When Donald Trump was sworn in as the nation’s 45th President, there were 114 federal court vacancies, with more on the way. 17 of these vacancies are on federal appellate courts, where there will be two additional vacancies by the end of February.  

Over at the Volokh Conspiracy, I review the number of vacancies and current balance on each of the U.S. Circuit Courts of Appeals. With one exception — the U.S. Court of Appeals for the Third Circuit — Trump’s ability to alter the balance of the federal appellate courts is limited, at least for now. Yet, according to Ballotpedia, a majority of currently sitting federal judges are or will become eligible to take senior status at some point in the next four years.

If the Trump Administration wants to encourage more judges to take this option, thereby creating more vacancies for President Trump to fill, it will take care to ensure that Trump’s initial nominees are particularly well-qualified and respected. Sitting judges are more likely take senior status if they are more confident in the caliber of their likely replacements.

Justice Gorsuch?

by Jonathan H. Adler

The indispensable Jan Crawford at CBS News is reporting that Judge Neil Gorsuch of the U.S. Court of Appeals for the Tenth Circuit may be emerging as the leading contender for Justice Scalia’s replacement on the Supreme Court. According to her report, the leading contenders (at the moment) are Gorsuch, Judge William Pryor of the U.S. Court of Appeals for the Eleventh Circuit and Judge Thomas Hardiman of the U.S. Court of Appeals for the Third Circuit. Judge Pryor had been a leading candidate, in part, due to his close relationship with Attorney General-designate Jeff Sessions. Judge Gorsuch, however, is seen as a less controversial pick who would be easier to confirm. Notably absent from Crawford’s report is any mention of Judge Diane Sykes of the U.S. Court of Appeals for the Seventh Circuit, who is often identified as a strong candidate for the nomination.

For those interested in learning more about Judge Gorsuch, here are profiles from SCOTUSBlog and BloombergBNA. In addition, here’s a VC post of mine on a Gorsuch opinion raising questions about Chevron deference. I also recommend taking a look at Judge Gorsuch’s Canary lecture on Justice Scalia’s jurisprudence that he delivered last year at the Case Western Reserve University School of Law. Here are a video of the talk and a published version of his remarks.

This Day in Liberal Judicial Activism—January 22

by Ed Whelan

1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

1996—Federal district judge Harold Baer rules (in United States v. Bayless) that New York City police officers did not have reasonable suspicion that criminal activity was afoot when they observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four males cross the street in single file and, without speaking with the driver, deposit duffle bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them.

Dismissing this last fact, Baer opines that publicity about the prosecution of a corrupt police officer in that neighborhood eliminated any inference that the men were engaged in evasive conduct. Indeed, “had the men not run when the cops began to stare at them, it would have been unusual.” Finding that the investigatory stop by the police violated the Fourth Amendment, Baer orders suppression of the evidence of the 34 kilograms of cocaine and two kilograms of heroin found in the duffle bags in the trunk.

Amidst the ensuing public outcry over Baer’s ruling—including comments by President Clinton that he might try to get his own appointee to resign—Baer reverses himself two months later and laments the “hyperbole (dicta) in my initial decision [that] regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”

This Day in Liberal Judicial Activism—January 21

by Ed Whelan

2014—Arch-activist Stephen Reinhardt sets the stage for the judicial invalidation of state marriage laws throughout the Ninth Circuit. Writing for a liberal panel, Reinhardt rules in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Reinhardt construes the Supreme Court’s recent decision in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles.

Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.

In fact, the Windsor majority’s reasoning was directed at the specifics of the Defense of Marriage Act, so it was unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.

This Day in Liberal Judicial Activism—January 19

by Ed Whelan

1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.

1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

This Day in Liberal Judicial Activism—January 17

by Ed Whelan

2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.


2014—Retired Sixth Circuit judge Boyce F. Martin Jr.’s career of zany lawlessness ends in rank public disgrace, as the Judicial Conference of the United States denies his request to keep confidential the results of a Judicial Council investigation into up to $138,500 of “questionable travel reimbursement expenses.”


By suddenly retiring in May 2013, Martin succeeded in obtaining a dismissal of the misconduct proceedings against him. But the Judicial Council decided that the public interest required disclosure of the charges against Martin.


Further, in an action that one federal judicial expert called “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.


2014—The judicial butchering of the Constitution continues. In Kosilek v. Spencer, a divided panel of the First Circuit affirms a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name has been changed to Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”


Eleven months later, the en banc First Circuit will overturn the panel ruling by a 3-2 vote.

This Day in Liberal Judicial Activism—January 16

by Ed Whelan

2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.


When various religious groups sponsored an advertising campaign offering “healing for homosexuals,” the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

Trump’s Justice Department Begins to Take Shape

by Jonathan H. Adler

Barring some extraordinary development, Alabama Senator Jeff Sessions will be the next Attorney General of the United States. What will the Justice Department look like under Sessions? Based upon this reporting by David Lat at Above the Law, the Department will be led by a team of smart, principled, experienced attorneys.

For starters, it’s been widely reported that Maryland U.S. Attorney Rod Rosenstein will be nominated to be Sessions’ number two: Deputy Attorney General. As I blogged here, Rosenstein would be a fabulous choice.

For Associate Attorney General, Lat reports the leading candidate is Rachel Brand, former head of DOJ’s Office of Legal Policy. This is another inspired choice.

For Solicitor General, Lat’s story is consistent with my reporting that the leading candidates are NY litigator George Conway and former Reagan Administration DOJ official Charles “Chuck” Cooper

Lat further reports that the leading contender to head the Office of Legal Counsel is Steven Engel, who served as the Deputy AAG for that office in the second half of the Bush Administration.

Finally, Lat reports on two individuals who had been rumored to be in the running for SG: Jones Day attorneys Noel Francisco and Greg Katsas. Writes Lat, Francisco is likely to be the Principal Deputy SG and Katsas is expected to be Deputy White House Counsel.

Whatever one thinks of Trump’s other appointments, this would be a very strong legal team and one that should instill confidence. Let’s hope that Lat’s reporting is correct (and that the President-elect does not change his mind).


This Day in Liberal Judicial Activism—January 14

by Ed Whelan

1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds. 

Austin Events

by Ed Whelan

I will visit the capital of Texas next week for two speaking engagements.

On Wednesday, January 18, I will discuss “What Trump Means for the Supreme Court” at a lunchtime event sponsored by the Austin lawyers chapter of the Federalist Society. CLE credit is available. More info here.

On Thursday, January 19, law professor Sanford Levinson and I will discuss/debate “President Trump’s Supreme Court Nominations” at a lunchtime event sponsored by the University of Texas law school’s chapter of the Federalist Society. The event will take place in TNH 2.140 (that’s perhaps the strangest room designation I’ve seen) from 11:45 to 1:00.

(I had initially feared that it would be difficult to catch a flight back to D.C. on Inaugural Eve, but I should have realized that Austin is probably the one city in Texas that is least likely, on a per capita basis, to have ardent Trump supporters.)

Cruz and Kirsanow Correct the Record

by Carrie Severino

Democratic Senators were unable to get a foothold against Sessions yesterday, yet they seem to think that they can make something out of a voter fraud case that Sessions prosecuted over thirty years ago. The facts, once again, demonstrate Sessions’s integrity and overwhelming qualifications for the position of Attorney General.

Peter Kirsanow, member of the US Commission on Civil Rights, stated that “if [Sessions] had failed to prosecute the Perry County case, that would have been an extraordinary dereliction of duty.” He also cited Craig Donsanto, former head of the public integrity unit of the DOJ who told Sessions to go forward with this, stating that experts and other contemporary witnesses believed that “this was a classic case of voter nullification.”

Senator Cruz also called out the left’s misrepresentation of the Perry case. He asked David Cole, National Legal Director of the ACLU, “why did you omit the fact that the complaint came from African American citizens, from elected African American incumbent politicians, and the indictment came from a grand jury that was a majority African American? Why did you omit those facts?”

Cole responded: “I don’t think I intentionally omitted those facts, Senator Cruz. What I did was to express our concerns about several aspects of that case.” He all but ceded to Senator Cruz’s admonition, but he proceeded to mischaracterize the record, citing only limited and selective facts. Senator Cruz quickly seized upon this, stating “any law student or any litigant who presented such a one-sided picture of that facts, conveniently omitting every single fact that is to the contrary, would not be treated as a credible witness and would not be treated, as you describe in your testimony, as strictly nonpartisan.”

The facts of this case, and the obvious problem therein, are quite simple. As Kirsanow explained, “[y]ou had two separate factions of Black Democrats in Perry County who were vying for seats. One faction went to the US attorney’s office and said ‘wait a minute, we believe that there is rampant voter fraud going on here.’” It had appeared that voters were encouraged to vote via absentee ballots, and that these votes were either changed or forged by members one of the two factions.

Here is an image of one of the ballots from that case:

The image includes text from a deposition of one witness who stated that this was her ballot and that she “didn’t mark anything out.” The witness was asked to verify the obvious fact that there were names marked out on this ballot, and she verified that she had not marked them out, and that she had not authorized anyone else to do so. Anybody can easily see that this absentee ballot had been tampered with. Democratic senators who are trying to besmirch Sen. Sessions’s prosecuting this case are fighting against their own cause. Sen. Sessions brought this case in 1985, during his days as US Attorney of Western Alabama, in order to protect the right of those Black Democrats in Perry County to vote for the person of their choice. Based on the evidence, Sessions prosecuted three people who he believed had changed the votes of their neighbors’ absentee ballots.

The above ballot is not one of a kind. “If you look at the FBI’s affidavit related to this they found 75 forged signatures on absentee ballots” said Kirsanow. “There were multiple counts where there were individuals, who were part of, or candidates, who were taking absentee ballots, changing them, altering them, or filling them out on behalf of individuals, and then giving them to the elections board.” In fact, one person had voted for their cousin, but their vote was changed. Three people were indicted for various counts surrounding a voting fraud scheme. However,  most of the witnesses changed their testimony under pressure. As a result many counts were dismissed during trial, and the jury acquitted defendants of the remainder.

The son of one of the defendants in the case, Albert Turner Jr., has even come out in favor of Senator Sessions, stating:

“My differences in policy and ideology with him do not translate to personal malice. He is not a racist. As I have said before, at no time then or now has Jeff Sessions said anything derogatory about my family. He was a prosecutor at the Federal level with a job to do.  He was presented with evidence by a local District Attorney that he relied on, and his office presented the case.  That’s what a prosecutor does.  I believe him when he says that he was simply doing his job.”

Charged with ensuring “that the laws be faithfully executed,” US Attorneys work to enforce federal laws throughout the country. As Attorney General, Sessions will do just that. The facts of the Perry County case fully support the conclusion evident from the hearings that Sessions will faithfully execute the law with integrity and equality.

As Kirsanow stated at the conclusion of his remarks today, “the facts of the case establish that, had a prosecutor not taken this and pursued this, there would have been some serious questions about his integrity.” Bravo, Senator Sessions.

This Day in Liberal Judicial Activism—January 12

by Ed Whelan

1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”

New York Times Is Beyond Parody and Beneath Contempt

by Ed Whelan

I have very low expectations that the New York Times will correct the errors it makes that reflect and reinforce its ideological biases, but somehow the New York Times manages to sink even lower than I thought possible. Here is a case study in its irredeemably irresponsible—indeed, flagrantly know-nothing—smugness:

1. In an article in the year-end issue of the New York Times Magazine, Emily Bazelon smeared Justice Scalia for his supposed views on science. I spelled out in posts how Bazelon got just about everything wrong—citing a report for a proposition it rejects, mischaracterizing the reasoning in a Scalia dissent, conflating social science with the hard sciences, and confusing intellectual humility with disrespect for science. But if you’re disinclined to read through my posts or to take my word for it, I invite you to read law professor and former Scalia clerk (and self-described leftist) Ian Samuel’s absolutely devastating reply to Bazelon (which I excerpted here) on her culminating claim. Samuel concludes:

So, no, Justice Scalia was not wary of science. In fact, the cautious spirit he displayed in Myriad Genetics is in the best tradition of the scientific method.

2. A responsible reporter, on discovering how badly she had screwed up, would have worked hard to make amends—making sure, for example, that corrections were made to the online version of the article and were highlighted in a subsequent issue of the magazine. A responsible reporter would also have encouraged the magazine to publish letters pointing out her errors. (Any such steps, to be sure, would have been inadequate, for the article was beyond repair and should never have been published.)

Instead, Bazelon used a Facebook post to respond to a series of Samuel’s tweets (his fuller reply was to her post) and addressed part of one of my points in a three-sentence P.S. that didn’t even link to my posts. (Never trust someone who purports to respond to an argument but won’t link to it.) No corrections were ever made to the magazine article.

3. On December 22, in order to give the NYT Magazine the opportunity to act responsibly, I sent this letter to it for publication:

Dear Editor:

In her reflection on Justice Antonin Scalia (“The Lives They Lived,” Dec. 21), Emily Bazelon depicts Scalia as hostile to science. But she badly distorts all of her evidence.

Bazelon claims, for example, that Scalia dissented from the Supreme Court’s 1987 ruling striking down a Louisiana law on teaching “creation science” because he “saw the case as a question about certainty.” What Scalia actually said was that the limited evidence in the record of the case at the time did not support the majority’s conclusion that the law required the teaching of religious doctrine. He made clear that if the state proved unable to show scientific evidence against evolution—if “the scheme they have established will amount to no more than a presentation of the Book of Genesis”—then he would agree that the law is unconstitutional.

Bazelon also claims that Scalia “contradicted scientific consensus when he declared it ‘very likely’ that the death penalty deters murder.” But beyond her unscientific conflation of hard science and social science, she flatly misrepresents the National Research Council report that she cites for that supposed consensus. That report concludes that “research to date on the effect of capital punishment on homicide is not informative” on the deterrence question. In short, it denies the existence of any consensus.

Scalia was modest about his own scientific knowledge and doubtful of the mastery that his judicial colleagues and other non-scientists claimed to have. That displayed a respect for science, not a hostility to, or skepticism of, it.


Ed Whelan

P.S. disclosure: I am a former law clerk to Justice Scalia.

4. It’s bad enough, but not surprising to me, that the NYT Magazine did not publish my letter or a letter making similar points. But—hold on to your seats!—take a look at the single letter on Bazelon’s piece that it did publish:

Based on my reading of Emily Bazelon’s portrait of the late Justice Antonin Scalia of the Supreme Court, the world — and definitely the United States — would be a better place had Scalia reigned supreme as a court jester at the Vatican instead of as a court justice in Washington. David M. Lieberfarb, Edison, N.J.

That’s right: The one letter it chose to publish not only uncritically accepts Bazelon’s “portrait” but also exhibits rank anti-Catholic bigotry. (Yes, of the same sort that the Know-Nothings of 150 years ago displayed.) As Samuel has written to me:

Utterly bizarre. That they would publish that letter at all is bad enough, but given the choices it’s unconscionable. 


It would be a good thing to have a “paper of record” (or, better yet, multiple papers) that were deserving of trust. But the New York Times has long since abandoned any claim to be trusted. To be clear, it has various reporters whom I like and respect. But it has a Stalinist culture of ideological conformity that prevents it from acknowledging and correcting errors that suit its ideological predilections.

For that reason, I will celebrate the day—perhaps not too far into the future?—that the New York Times goes out of business.

And to do my tiny bit to help expedite that event, I will highlight that there is no reason for anyone to pay a penny for online access to the New York Times. Here’s an article that presents different ways to get around NYT’s paywall. “Incognito mode”—which on Chrome simply involves clicking in the upper right to open a “New incognito window”—is very simple. (And, no, I don’t see anything remotely immoral in using lawful and non-invasive means to circumvent NYT’s efforts to restrict access to materials that it disseminates on the Internet.) 

Ten Takeaways from the Sessions Hearings

by Carrie Severino

Today’s hearings were a home run for Senator Sessions, as Byron York has notedThe rest of the confirmation process should be smooth sailing. Here are some of the main themes and moments to remember from his testimony:

1. Respect for Rule of Law

Sessions returned repeatedly to his main theme of respect for the rule of law. On several occasions other senators asked him about his position on various issues, from enforcement of the Voting Rights Act, to the FACE Act, to drug laws, to immigration. Across the board, whether it was a law he loved or hated, he pledged to enforce the law as passed by our elected representatives. That’s a big contrast with the Obama administration’s penchant for failing to enforce drug and immigration laws they disagreed with and attacking laws like DOMA in the courts.

2. A Constitutional Check on the Executive

A complementary focus was the Attorney General’s role in ensuring that the executive is abiding by the Constitution, including resigning rather than taking unlawful or unconstitutional actions.

“I think an Attorney General should first work with the president, hopefully that Attorney General would have the confidence of the President, and avoid situations that would be unacceptable. I do believe that if an Attorney General is asked to do something that is plainly unlawful, he cannot participate in that, he or she, and that person would have to resign ultimately before agreeing to execute a policy that the Attorney General believes would be unlawful or unconstitutional.”

3. Refuting “​Damnably False Charges”​

In his opening statement Sessions gave a blanket disavowal of the slurs against him arising out of his 1986 hearings as “damnably false charges.” It’s possible that this early refutation of those allegations defused the issue and helped keep the hearings mostly focused on the issues rather than mud slinging.  

4. Raising the Ethical Standards

Sessions volunteered that he would recuse himself from investigations into Hillary Clinton’s email and Clinton Foundation scandals because he had commented on those charges on the campaign trail when stumping for Trump. That was a smart move that was not only ethically sound but defused likely Democrat complaints and provided a sharp contrast with AG Loretta Lynch’s own impropriety in having private conversations with former President Clinton while his wife was under investigation.

5. Straightforward Answers

On numerous occasions Sessions took the wind out of Democrats’ sails by giving very straightforward answers rather than trying to finesse his answers. Take this exchange with Senator Feinstein: 

Sen. Feinstein: “You have referred to Roe v. Wade as ‘One of the worst, colossally erroneous Supreme Court decisions of all time.’ Is that still your view?”
Sen. Sessions: “It is. I believe it violated the constitution and really attempted to set policy and not follow law.”

Or this I-can’t-believe-Leahy-just-went-there moment:
Sen. Leahy: “Is grabbing a woman by her genitals without consent, is that sexual assault?”
Sen. Sessions: “Yes.”

The simplest answer is often also the right one.

6. Batting Down Straw Men

Senator Sessions handily dispatched several straw men that had been deployed against him.  For example, he said he didn’t support a flat ban on Muslim immigration. He also pledged to respect the Roe v. Wade and Obergefell decisions – and that after noting that he disagreed with them legally.

7. A Southern Gentleman

Senator Sessions was unflappably calm and gentlemanly throughout. He was patient with longwinded questioners as well as the periodic protesters being evicted. I was impressed with an exchange about the holding of the Lily Ledbetter case in which he gallantly conceded to Sen. Hirono that his recollection of the facts of the case could be incorrect and she could be right. (As it happens she had the facts of the case exactly wrong.)

8. Racism from the Peanut Gallery

The most racially-charged statement of the day didn’t come from the witness or any of the senators, but from a twitter-happy MTV reporter who quickly learned that it doesn’t pay to make racist comments in service of your argument that someone is a racist.  The reporter snidely tweeted that Sessions should “kindly return this Asian baby to the Toys ‘R’ Us you stole her from.”  (His four adorable granddaughters – who were shockingly well behaved sitting through the long opening statements – are part Asian.) Jake Tapper pretty well summed it up: “Disgusting tweet. The little girl is his granddaughter. Delete your account and find some humanity.”

9. Senator Franken is not a Lawyer

Senator Franken won the understatement of the year award when he prefaced a question with “I’m not a lawyer but…” He went on to question Sessions’s involvement in several cases listed on his Senate questionnaire. Sessions attempted to explain that his name was first on the briefs and his signature in the docket and that he was therefore very much responsible for those cases, but Franken continued to protest. “I don’t know some of the parlance, might have a special meaning in legal parlance, but to me, as a layman, it sounds to me like filed means I led the case, or I supervised the case. It doesn’t mean that my name was on it.” Actually, “I filed a case” does mean that it was filed with your name on it, as Sessions was well aware. I guess that’s why he, and not Franken, is the one who’s up for the AG spot.

10. The Reduce Superfluous Awards Act of 2017

You knew it was over when… This happened for me when Senator Blumenthal pressed Sessions to disavow basically any group who has ever given him an award lest he be deemed to agree with all their positions.  First, you started to see the veteran prosecutor come out in him when he responded to insinuations that he may have received an award at some point from the KKK with: “Well, I wouldn’t receive it from Henry Hayes, I’ll tell you that. He no longer exists.” (Hayes was the Klansman and murderer for whom Sessions helped secure the death penalty.) In case you were wondering, Sessions also stated that he wouldn’t receive an award from the Klan.


This Day in Liberal Judicial Activism—January 11

by Ed Whelan

1954—President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

2016—When is discrimination on the basis of sex just fine? When it operates against men to produce welcome results. Such is the lesson of the Fourth Circuit’s ruling (in Bauer v. Lynch) against an FBI trainee, Jay J. Bauer, who complained that the FBI discriminated against him on the basis of sex.

Bauer failed the FBI’s physical-fitness test (PFT) when he fell one push-up short of the minimum of 30 required for men. For women, the push-up minimum was only 14 (and the other thresholds were also easier to meet). So Bauer sued on the ground that the differential standards for men and women violated Title VII’s basic ban on discrimination on the basis of sex as well as its specific ban on the use, on the basis of sex, of “different cutoff scores for … employment related tests.” The federal district court granted summary judgment in his favor.

But the Fourth Circuit panel of Obama and Clinton appointees somehow sees things very differently. The Fourth Circuit accepts the Obama administration’s argument that the “PFT’s gender-normed standards actually require the same level of fitness for all Trainees” because “equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Therefore, the PFT standards “do not treat the sexes differently.”

The Left seems to invoke “innate physiological differences” between the sexes only when doing so favors women. The “gender-normed standards,” by their very nature, “treat the sexes differently.” That is their very purpose. Further, they impose a differential “cutoff” on the basis of sex that the text of Title VII specifically forbids.