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This Day in Liberal Judicial Activism—October 30


2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statements, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent. 

City of Houston Withdraws Subpoenas Entirely


I’m pleased to pass along word from the Alliance Defending Freedom, counsel for five Houston pastors, that Houston mayor Annise Parker has—finally—entirely withdrawn the harassing subpoenas that the City unjustifiably inflicted on the pastors.

I’ll repeat what I said in my first post on this matter: The law firm of Susman Godfrey, which is representing the City “pro bono” in the litigation, deserves to share in the ample blame for this fiasco. In particular, Geoffrey L. Harrison, Alex Kaplan, and Kristen Schlemmer of that law firm seem not to have given a moment of careful thought to the First Amendment implications in this case of the sort of bullying discovery that they and other lawyers routinely engage in. 


More on Disenfranchisement


Liberals are already unhappy that conservatives want to disenfranchise some voters for little things like being non-citizens.  What will they say when they learn that George Leef is in favor of some people voting less-than-zero times?

Double Standards on Judicial Accountability?


Several Arizona judges who are facing retention elections this year were given negative performance ratings by the state’s Judicial Performance Commission (JPC), a state agency that is designed to collect and issue performance reviews of sitting judges.

You may recall that Arizona is a “Missouri Plan” state, which means that it allows lawyers who appear before state judges an outsized influence over which candidates will be nominated for office. Arizona’s JPC, which is responsible for rating judges after they are on the bench, likewise gives lawyers a disproportionate influence over the ratings, with attorneys constituting 25 percent of the commission’s members.

As it turns out, the JPC decided to issue negative reviews of several incumbent judges this year. Seizing on the opportunity, former Arizona-bar president Mark Harrison (who also just happens to be the chairman of Justice At Stake, a George Soros-funded group that favors such lawyer-dominated commissions), was quoted as saying (although not in his capacity as JAS’s chairman):

Even if a judge is retained in the face of negative votes, that judge is on notice that he or she better shape up and address the problems that have been identified in the process.

I haven’t been following Arizona’s judicial elections closely, so I don’t know whether the commission’s criticisms have any merit. But as I’ve noted before, the left’s double standard on retention elections is fascinating. On the one hand, it’s okay for the chairman of the board for a trial-lawyer-connected special-interest group to say that judges who receive a negative review should “shape up” or face voter accountability. At the same time, it’s somehow a dire “threat to judicial independence” when citizen groups try to advocate accountability for themselves.

New White Paper on the Montana Supreme Court’s Activism


I am pleased to announce that today my organization, the Judicial Crisis Network, released a white paper by three distinguished members of the conservative movement about the Montana supreme court and its activism in defiance of U.S. Supreme Court precedent. The authors of the white paper, William S. Consovoy, Michael E. Toner, and Samuel B. Gedge, have provided some fantastic research about that court’s history of recalcitrance toward federal statutes and Supreme Court case law.

Here’s the introduction:

In recent decades, some of the highest profile refusals to follow the U.S. Supreme Court’s decisions have come out of the Montana Supreme Court. In the most colorful instance, the U.S. Supreme Court had to grant certiorari twice to prevent the Montana Supreme Court from enforcing a federally preempted state law aimed at arbitration clauses. The Montana court embarked on a similar course of disobedience following the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. Less than two years after Citizens United invalidated government bans on corporate political speech, the Montana Supreme Court took up the same issue and reached the opposite result. And, in 2010, the Montana Supreme Court blessed the state’s retroactive claim of ownership over hundreds of miles of Montana riverbeds, again applying an analysis that ran directly counter to U.S. Supreme Court precedent.

* * *

The most obvious answer to state-court indifference to the U.S. Supreme Court’s authority is to vote the offending jurists—in this case the elected judges of the Montana Supreme Court—out of office. Here too, however, Montana’s experience suggests that ballot-box accountability can face serious obstacles. In 2011, legislators presented a referendum to the Montana voters that would have refined state judicial elections. As one proponent put it, the changes would “allow the people of the state of Montana to know their candidate better and make a better decision.” Montanans never got a chance to consider the measure, though. In an extraordinary (and dubious) exercise of power, the sitting justices of the Montana Supreme Court preemptively struck the referendum from the ballot. In other words, the Montana Supreme Court has not only abandoned its solemn obligation to adhere to supreme federal law, it has resisted the effort by Montana’s political branches to address the problem.

Read the whole thing here.


On Chai Feldblum’s Memory, and Her Considered Views


Maggie Gallagher, over at The Corner, responds to Chai Feldblum’s claim that she was misquoted in a 2006 Weekly Standard article, in which Maggie quoted Feldblum as saying that “when push comes to shove, when religious liberty and sexual liberty conflict, she admits, ‘I’m having a hard time coming up with any case in which religious liberty should win.’” Maggie supplies the full context, and though she does not have a recording, she is confident that she got it right at the time.

I can’t think why Feldblum should now want to disavow Maggie’s report of what she said long ago. It’s not like it’s inconsistent with her fully considered and published views of the matter. In the Becket Fund conference where Maggie evidently first discovered Feldblum’s views, she gave a paper that was later published in a book titled Same-Sex Marriage and Religious Liberty: Emerging Conflicts. Feldblum’s essay, “Moral Conflict and Conflicting Liberties,” squarely came down on the side of never resolving constitutional or legal claims of religious liberty in favor of those claiming it, if on the other side was a claim of gays and lesbians not to be discriminated against, with respect to marriage or anything else. Indeed, she made the move of reducing First Amendment religious freedom claims to mere “belief liberty interests” under the due process clause, which makes them much easier to defeat.

Feldblum went on to explicitly equate a refusal to acquiesce in the redefinition of marriage with racial bigotry:

Just as we do not tolerate private racial beliefs that adversely affect African-Americans in the commercial arena, even if such beliefs are based on religious views, we should similarly not tolerate private beliefs about sexual orientation and gender identity that adversely affect the ability of LGBT people to live in the world.

She then went on to say that there might be “limited situations in which a legislature [her emphasis -- i.e., not a court on constitutional grounds] might legitimately choose to protect the belief liberty of individuals or institutions over the identity liberty of LGBT people,” and she said that there might be two such situations. The first was when an explicitly religious organization runs operations like “schools, day care centers, summer camps, and tours,” its purpose is to “inculcate a set of beliefs” that are at odds with approval of homosexuality, and it “seek[s] to enroll only individuals who wish to be inculcated with such beliefs. The second situation, about which Feldblum said she was “more hesitant,” was when “religious institutions” offering social services to the entire community choose people for their top leadership positions. In other words, a Catholic adoption agency (one of her examples) just might still be free to choose a faithful Catholic as its director, over an “openly gay person” who also wants the job. Below the top leadership, Feldblum would not grant that leeway.

Note, however, that for Feldblum, these extremely limited spheres of freedom are not a matter of right under any reading of the Constitution, or of existing RFRA statutes. They have no connection to “religious liberty” as properly or ordinarily understood, but only to Feldblum’s desiccated notion of a “belief liberty interest.” And they are discrete, wholly optional, and tentatively offered matters of legislative grace. How then can she claim she was misrepresented when Maggie Gallagher quoted her as saying she had a “hard time” imagining circumstances in which “religious liberty” should prevail? That remark in a conversation was wholly consistent with her fully considered, carefully thought-out published views on the subject. It’s clear from her Becket Fund conference paper that she did indeed have a very “hard time” finding legal space for any realm of freedom to dissent from her political agenda.

Marriage and the Left’s Duplicity on Pre-Enforcement Challenges


Premature! A set up! Fabricated! The city never threatened them!

It is rich reading these charges regarding the lawsuit two ordained ministers, Don and Lynn Knapp, recently filed on behalf of themselves and their wedding business, The Hitching Post. As you probably know by now — it is big national news – the Knapps filed the lawsuit to prevent officials in Coeur d’Alene, Idaho, from enforcing a criminal, sexual-orientation nondiscrimination ordinance against them for declining to perform same-sex wedding ceremonies based on their religious beliefs about marriage.

The Knapps filed what is called a “pre-enforcement” challenge. Leftist groups frequently use these types of challenges to advance their agenda, which is why it is so amusing that people in their camp are squawking that the Knapps filed such a suit.

Pre-enforcement challenges are lawsuits filed before actual enforcement of a law.   

These types of lawsuits have a venerable legal pedigree, and play a pivotal role in protecting our precious First Amendment freedoms. They are based on a simple and understandable proposition: that people should be able to challenge a law that threatens their First Amendment rights without having to subject themselves to criminal prosecution. 

The United States Supreme Court has explained it this way in Steffel v. Thompson: ”[I]t is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights.” Instead, all a plaintiff needs to show is a “credible threat” of enforcement to go to court and obtain an injunction.

The Knapps easily clear that hurdle. Prior to filing their lawsuit, the city’s deputy attorney gave an interview where he stated: “I would think that the Hitching Post would probably be considered a place of public accommodation that would be subject to the ordinance.” He asserted this again in another interview. City officials then twice confirmed in private conversations with Don Knapp that the Knapps would violate the ordinance if they declined to perform same-sex wedding ceremonies should same-sex marriage be legalized in Idaho. 

Once the Knapps declined a same-sex wedding ceremony October 17, they immediately filed a lawsuit to avoid being subject to jail time and criminal fines under the ordinance simply for exercising their faith. After the lawsuit was filed, city officials sent the Knapps’ attorneys a letter confirming that for-profit wedding chapels, like The Hitching Post, would violate the ordinance if they declined to perform same-sex wedding ceremonies. The letter states that nonprofits are exempt from the ordinance, but that for-profit wedding chapels are not ”if they are providing services primarily or substantially for profit and they discriminate in providing those services based on sexual orientation then they would likely be in violation of the ordinance.” 

The above facts provide a solid foundation for filing a pre-enforcement challenge.  In fact, it is a far more solid foundation than many pre-enforcement lawsuits the Left has filed (and won) to achieve their legal goals. 

For instance, in Virginia v. American Booksellers Association, booksellers filed a pre-enforcement challenge against a Virginia law that made it a crime for any person “to knowingly display for commercial purpose in a manner whereby juveniles may examine and peruse” visual or written material that “depicts sexually explicit nudity, sexual conduct or sadomasochistic abuse and which is harmful to juveniles.”  No government official had threatened the booksellers under the law, yet they filed a pre-enforcement challenge to make sure that adults could access these pornographic (and worse) materials without the “burden” of having to enter an adults-only section of a store.  They eventually won. 

So, think on this folks.  The Left jealously protects its right to use pre-enforcement challenges to make sure adults can access sadomasochistic porn, but denigrates two senior-citizen pastors for using the same mechanism to avoid being prosecuted for exercising their faith.

Don’t be duped. The Left is duplicitous. And that’s putting it nicely.  The Knapps had every right to file a pre-enforcement challenge considering the dire consequences they faced as a result of acting on their religious convictions and declining to perform a same-sex wedding ceremony.  Anyone who found themselves in the Knapps’ shoes would have done the same. 

— Jeremy Tedesco is senior legal counsel with Alliance Defending Freedom. He represents the two pastors who filed suit against the city of Coeur D’Alene, Idaho.

Political Scientists: Significant Illegal Voting by Non-Citizens


On the Washington Post’s Monkey Cage blog, political scientists Jesse Richman and David Earnest of Old Dominion University present the jarring results of a new study (access restricted) that they are publishing in the journal Electoral Studies:

How many non-citizens participate in U.S. elections? More than 14 percent of non-citizens in both the 2008 and 2010 samples indicated that they were registered to vote. Furthermore, some of these non-citizens voted. Our best guess, based upon extrapolations from the portion of the sample with a verified vote, is that 6.4 percent of non-citizens voted in 2008 and 2.2 percent of non-citizens voted in 2010.


Because non-citizens tended to favor Democrats (Obama won more than 80 percent of the votes of non-citizens in the 2008 CCES sample), we find that this participation was large enough to plausibly account for Democratic victories in a few close elections. Non-citizen votes could have given Senate Democrats the pivotal 60th vote needed to overcome filibusters in order to pass health-care reform and other Obama administration priorities in the 111th Congress. Sen. Al Franken (D-Minn.) won election in 2008 with a victory margin of 312 votes. Votes cast by just 0.65 percent of Minnesota non-citizens could account for this margin

It’s also noteworthy that Richman and Earnest find that voter ID laws appear to be “strikingly ineffective”:

Nearly three quarters of the non-citizens who indicated they were asked to provide photo identification at the polls claimed to have subsequently voted.

I of course don’t mean to present the Richmond/Earnest conclusions (which they themselves emphasize are based on a “modest” sample and thus have the “attendant uncertainty associated with sampling error”) as the definitive word on the matter, and I look forward to reading their full study as well as any critiques of it. But if noncitizens (and other persons ineligible to vote) are in fact voting, I would hope that everyone would agree that an effective response to the problem is necessary.

Update: According to Michael Tesler, another blogger at Monkey Cage, “it appears that a substantial number of self-reported non-citizens inaccurately reported their (non)citizenship status in the CCES surveys.” Tesler concludes that the CCES is “probably not an appropriate data source for testing” claims of voting by non-citizens.​


This Day in Liberal Judicial Activism—October 25


1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples. 

On Taxes and Judges, Governor Sam Brownback Gets It


With less than two weeks to go, Kansas governor Sam Brownback is still in a close race for reelection. He should ultimately prevail, but his leadership on tax reform, and in particular his plan to phase out the state’s income taxes, have caused the Left to come unhinged. And his critics seem to think that if they can defeat Brownback and reverse the reforms achieved in Kansas, they can keep other governors and conservative legislators from getting too excited about tax reform in their states. Not surprisingly, Grover Norquist has called this “the most important race in America.”

But here is another reason conservatives should be very concerned about Governor Brownback’s future: No governor in any state has done more to fight for a judiciary that puts the rule of law ahead of political preferences.

Kansas is one of about a dozen “Missouri Plan” states, which means that the state’s governor must select supreme-court appointments from a list of nominees produced by a bar-dominated commission. So if the left-leaning lawyers who run the state’s legal guild want to undermine or block Governor Brownback’s agenda, they have a judicial branch that is ready, willing, and able. And that is precisely the sort of political wetwork that the Kansas supreme court has engaged in over the last several decades.  

Governor Brownback understood the severity of the problem and went about fixing it just after taking office. In 2011 he urged the legislature to work with him to reform the state’s judicial selection process. In 2012, after reform legislation was defeated by moderate Republicans in the state senate, he campaigned against those incumbents and helped elect a new crop of conservatives who would work with him on this and other priorities.  

In 2013 he intensified his calls for reform by making it a top priority in his state-of-the-state address, saying he would be open to contested elections for all judges, or a method of appointment like the one set forth in the U.S. Constitution. This time he faced a receptive audience among legislators, and when they sent a bill to his desk to abolish the Missouri Plan at the court-of-appeals level, he signed the bill and continued to press for a constitutional amendment to reform the process at the state-supreme-court level.  

In early 2014 when he faced his first court-of-appeals vacancy under the new selection system, he appointed Caleb Stegall, a star in the Kansas legal community who had distinguished himself as a lawyer and as a warrior for conservative causes. Most recently, when faced with a vacancy on the Kansas supreme court, he pulled off a miracle by somehow getting the state’s nominating commission to put Stegall on the list of nominees for that vacancy. He appointed Stegall to the court, giving Kansas its first conservative supreme-court justice in a generation.

And now, in the midst of what has been a surprisingly challenging race for reelection, he has once again made judges a priority. (See this TV ad.) As the Wall Street Journal summarized yesterday:

In a Tuesday debate at the Kansas Association of Broadcasters convention, Mr. Brownback bore down on his attack against the state’s left-leaning Supreme Court. Mr. Davis “wants to continue to appoint liberal judges to that court. I want to appoint judges who will interpret the law, not rewrite it as they choose to see it,” he said.

* * *

Conservative Republicans and Mr. Brownback would like to reform the selection of state high court judges as well, though this would necessitate a constitutional amendment which must be approved by two-thirds of both legislative chambers and a majority of voters. While not implausible—Republicans hold 80% of the Senate and 75% of the House—such a reform would be a heavy political lift.
By campaigning against the liberal judiciary, the governor is laying the groundwork for a future referendum and ratcheting up the stakes of the election.

The rule of law is essential for the promotion of a vibrant economy and a culture that encourages human flourishing. Governor Brownback has demonstrated that he understands that, and that he understands that his state’s broken judicial-selection system undermines the rule of law. I expect him to win, but whether he wins or loses, there is no doubt in my mind that Kansas will be a better state to live, work, and raise a family because of his leadership.

Michael Paulsen on the Supreme Court Last Term


First Things has posted online law professor Michael Paulsen’s excellent essay offering his overview of the Supreme Court’s 2013-2014 Term. Here’s an excerpt:

The biggest cases decided by the Supreme Court in the term that ended this past July concerned, almost without exception, First Amendment liberties of expression, association, and free exercise of religion. And that is appropriate. Those of us whose views are not in accord with the current trend of national politics and policies have little left if deprived of the rights to dispute, to dissent, to resist, to refrain, to refuse, to contest. These freedoms are the last line of defense.…

Measured by the low standards of the desperate, the Supreme Court’s 2013–14 term was on the whole a spectacularly good one. The term was, if anything, a relief. In the cases that really mattered, the Court reached the right results and gave support to the rights of dissenters, albeit with more equivocation and labor than one might have preferred. The opinions typically were not sweeping, beautiful landmarks. But at least they were not the cataclysms that we have so often come to dread, and see.

This Day in Liberal Judicial Activism—October 23


1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

The Encryption Discussion Continues


Two weeks ago I wrote about the problems for law enforcement created by Apple’s (and Google’s) new plans to offer widely available, effectively unbreakable encryption for iPhones, prompting strong negative reactions from FBI Director James Comey and others. I pointed out there that such a feature would create practical impunity in a wide variety of cases where individuals encrypt evidence of their illegal activities and render that evidence inaccessible even with legal authorization. The conversation has developed, with dueling legal proposals.

Last week, Comey gave a speech at the Brookings Institution in which he raised the possibility of requiring technical changes to the encryption scheme. The speech is worth reading in its entirety, but the most interesting section is his proposal that Congress update a 1994 law called the Communications Assistance for Law Enforcement Act (CALEA):

Current law governing the interception of communications requires telecommunication carriers and broadband providers to build interception capabilities into their networks for court-ordered surveillance. But that law, the Communications Assistance for Law Enforcement Act, or CALEA, was enacted 20 years ago—a lifetime in the Internet age. And it doesn’t cover new means of communication. Thousands of companies provide some form of communication service, and most are not required by statute to provide lawful intercept capabilities to law enforcement.

What this means is that an order from a judge to monitor a suspect’s communication may amount to nothing more than a piece of paper. Some companies fail to comply with the court order. Some can’t comply, because they have not developed interception capabilities. Other providers want to provide assistance, but they have to build interception capabilities, and that takes time and money.

The issue is whether companies not currently subject to the Communications Assistance for Law Enforcement Act should be required to build lawful intercept capabilities for law enforcement. We aren’t seeking to expand our authority to intercept communications. We are struggling to keep up with changing technology and to maintain our ability to actually collect the communications we are authorized to intercept.

Although Comey doesn’t get into details of the proposal, it is likely similar to a proposal that the FBI was offering early last year. That proposal, according to the Washington Post, wouldn’t set “rules that dictate how the wiretap capability must be built,” but instead would “let companies develop the solutions as long as those solutions yielded the needed data.”

What is new is the apparent suggestion (at least suggested by the context) that CALEA could be amended to require smartphone companies to let the government decrypt smartphones on demand. But this proposal runs squarely into the problems that I identified before.

First, smartphone engineers could create this capability by weakening the smartphone encryption scheme so it could be broken quickly. But any encryption scheme that could be broken quickly by law enforcement would necessarily be weak tea, and would also be breakable by a well-resourced attacker like a foreign intelligence service or a criminal organization. Such weak encryption would be especially problematic for companies that need to protect proprietary business information from prying eyes overseas.

Second, engineers could create a secret backdoor key reserved specially for the smartphone manufacturers themselves or the government, to be used only under the proper legal authorization. But this poses similar dangers. The backdoor key itself would become a valuable prize. In addition, a secret backdoor likewise introduces another point of weakness into the already-complex cryptographic system. As security expert and cryptographer Bruce Schneier has noted, “Building a secure cryptographic system is easy to do badly, and very difficult to do well.” Mandating an additional layer of complexity would complicate an already quite difficult technical feat, increasing the probability of errors and the likelihood of unintended consequences.

Seeking to do an end-run around these types of technical problems, George Washington University law professor Orin Kerr has proposed (for discussion purposes only) a purely legal solution. Kerr proposes that Congress define the new crime of “willful refusal to comply with a decryption order.”

Consider a thought experiment. What if Congress enacted a new statute that directly links punishment for the refusal to the punishment for the crime under investigation, so that the punishment for refusal to comply would be set as the punishment for the underlying offense?

In Kerr’s proposal, refusal to unlock a device in an investigation for a crime would carry the same penalties as the crime being investigated, which we might term the “reference crime.” This would, at least in theory, equalize the incentives for failure to comply, since he would be facing the same penalties for both unlocking or refusing to unlock.

For several reasons, I’m not convinced that this proposal would be a practical solution.

Keep reading this post . . .

California Orders Churches to Fund Abortion


For those who don’t yet recognize that the progressive ideology is fundamentally hostile to religious liberty (and will tolerate religious liberty only insofar as it serves progressive goals), consider the news that California, through regulatory fiat, is now requiring churches to provide insurance coverage for elective surgical abortions. Casey Mattox asks:

What will be the administration and the Left’s response to this unprecedented attack on religious liberty? If they couldn’t stand with Hobby Lobby because it was a for-profit business, not a church, and because they thought its conscience concern was misplaced on the abortifacient nature of Plan B, will they now demand religious liberty for churches forced to cover elective abortion? If not now for religious liberty, when?

Alas, I fear that I know the answers to these questions.

Strong Ruling in Favor of Puerto Rico’s Marriage Laws


Yesterday federal district judge Juan M. Pérez-Giménez (a Carter appointee) issued a strong ruling rejecting a challenge to Puerto Rico’s marriage laws. I have no illusion that this ruling will turn the tide, but it’s nonetheless noteworthy.

The core of Judge Pérez-Giménez’s ruling is that the Supreme Court’s 1972 dismissal, “for want of a substantial federal question,” of the appeal in Baker v. Nelson operates as a decision on the merits that forecloses the lower courts from holding that there is a federal constitutional right to marry a person of the same sex. That conclusion, Judge Pérez-Giménez explains, is correct as a matter of  basic principle and is required by recent First Circuit precedent, as the First Circuit, in the course of striking down DOMA two years ago, recognized that Baker remains binding precedent and forecloses arguments that “presume or rest on a constitutional right to same-sex marriage.”

Further, writes Judge Pérez-Giménez:

Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

And here’s a lengthy excerpt from Judge Pérez-Giménez’s powerful conclusion:

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Schuette v. Coalition to Defend Affirmative Action (2014) (Op. of Kennedy, J.). [Emphasis added; some citations omitted.]

This Day in Liberal Judicial Activism—October 22


1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause.

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”  

Marriage Laws and Sex Discrimination


On Public Discourse, Sherif Girgis has a fine essay explaining why state laws that define marriage as the union of a man and a woman should not be subjected to heightened scrutiny as sex discrimination. An excerpt:

In none of the typically suspect groupings (racial, ethnic, etc.) do the very categories of the grouping have any inherent positive (or negative) connection to a legitimate political end. They have such a connection, if at all, only by virtue of contingent and changeable social or cultural goals. Those goals have often been malign. So it makes sense not to presume their legitimacy, and to devise rules for scrutinizing them—as the Court has done.

But the male-female sexual grouping is necessarily linked, by the concepts involved, to a social purpose we did not simply invent and can scarcely do without: society’s reproduction. In this way, the classification in marriage laws differs from any racial grouping, even from other sex classifications.

One of the scholars whose contrary conclusion Girgis disputes is Steve Calabresi, who in this short, curious article argues:

State laws that ban same sex marriage formally discriminate on the basis of sex in the same way that State laws that banned interracial marriage discriminated on the basis of race. Same sex marriage laws [sic] allow a man to marry a woman but not another man. This is, again as a formal matter, sex discrimination plain and simple.

I find Calabresi’s reliance on formal discrimination especially puzzling. In his article three years ago on Originalism and Sex Discrimination”—which I critiqued in a series of posts (links here)—Calabresi argued that the Fourteenth Amendment “was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste.” If he were faithful to the approach he took in that article, he would explore whether laws that define marriage as the union of a man and a woman treat women as a caste—and he would, I think, have to answer that question no. But instead he doesn’t even address it.

Sex-segregated public bathrooms, I’ll note, surely also involve formal discrimination on the basis of sex. Under Calabresi’s new reasoning, states could maintain such bathrooms only if they can offer an “exceedingly persuasive justification” for them. I think that’s a conclusion that any originalist ought to find ridiculous. 

This Day in Liberal Judicial Activism—October 21


1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.” 

On Toobin on Obama’s Judicial Legacy


Jeffrey Toobin’s new New Yorker essay on President Obama’s judicial legacy is replete with his usual propagandistic distortions and sloppy errors. It would be tedious to try to document them all. But I will comment on a few of them:

1. When Toobin asked President Obama to identify the “best Supreme Court decision of his tenure,” Obama responded by praising the Court’s decision two weeks ago to deny review of various lower-court rulings striking down state marriage laws. Toobin then offers this astounding mistranslation of Obama’s response:

In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. [Emphasis added.]

Far from “allow[ing] the political process to go forward, one state at a time,” the Court’s denial of review of the rulings by the Fourth, Seventh, and Tenth Circuits leaves in place the judicial imposition of SSM in Virginia, Indiana, Wisconsin Utah, and Oklahoma and guarantees that those rulings will be applied to the remaining states in those circuits. Further, it signals that the Court will acquiesce in the judicial imposition of SSM by other courts of appeals—a signal that it took the Ninth Circuit but a day to act upon.

The way for the Court to “allow[] the political process to go forward, one state at a time,” would have been to reverse the lower-court rulings and to rule that the question whether or not to redefine marriage to include same-sex couples is a matter that the Constitution leaves to the democratic processes. That position on the constitutional question is the one that Obama used to hold (or used to pretend to hold), but he has now abandoned it, as Toobin makes clear: Obama “told me that he now believes the Constitution requires all states to allow same-sex marriage.”

2. Toobin claims that the Gang of 14 Agreement of 2005 somehow meant, “when Obama became president,” that “the minority party in the Senate—now the Republicans—was supposed to acquiesce to votes unless the judicial candidate presented ‘extraordinary circumstances.’” But as I have spelled out in detail in these two posts:

a. The Gang of 14 agreement expressly related only “to pending and future judicial nominations in the 109th Congress”—that is, for 2005 and 2006. In other words, the agreement by its own terms stopped having any operative effect at the end of 2006. (That’s why one of the Democratic signatories, Mary Landrieu, could vote against cloture on the nomination of Leslie Southwick.)

b. Then-Senator Obama and other Democrats who were not signatories to the Gang of 14 agreement never regarded that agreement as somehow limiting their freedom to filibuster judicial nominees. 

c. It’s passing strange to think that a time-limited agreement among 14 senators could effect a permanent change to the Senate’s practices.

3. Memo to the New Yorker’s legendary (mythical?) fact-checkers: While Toobin’s routine distortions are beyond your power to correct, you missed some elementary errors:

a. Toobin asserts that “few Republicans had any substantive objections to any of the [D.C. Circuit] nominees” up for confirmation last November. In fact, lots of Republicans had lots of substantive objections to Cornelia Pillard.

b. It was in 2003 (after they lost control of the Senate in the 2002 elections), not in 2005, that Democratic senators “decided to make a stand” against “several of [George W. Bush’s] circuit-court nominees” by launching the unprecedented use of the filibuster against judicial nominees. (Over two years, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions. That data, unnoted by Toobin, undermines his assertion that “Who filibustered more—the Democrats under Bush, or the Republicans under Obama—is disputable.”)

This Day in Liberal Judicial Activism—October 20


2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted. 


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