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This Day in Liberal Judicial Activism—August 23


2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case. 

This Day in Liberal Judicial Activism—August 19


2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth. 


This Day in Liberal Judicial Activism—August 17


2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”

Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” (How’s that for “careful” and “thoroughly grounded”?)

Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.” But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims. 

2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added):

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

This Day in Liberal Judicial Activism—August 16


1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.  

This Day in Liberal Judicial Activism—August 15


1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.” 


Arizona AG Tom Horne Hit With Two New Ads


The State Conservative Reform Action PAC (SCRAP) — a new super PAC dedicated to electing principled conservatives to key state offices — has launched an advertising campaign in Arizona in support of Mark Brnovich, a Republican candidate for attorney general. Mark is challenging incumbent attorney general Tom Horne, also a Republican. SCRAP’s ad features Representative Matt Salmon, who’s from Arizona’s fifth district, and highlights Governor Jan Brewer’s endorsement of Brnovich. 

Meanwhile, the Arizona Public Integrity Alliance, another conservative organization that had previously called on Horne to resign, has released a new ad highlighting the controversies surrounding Horne.

Many of our readers are familiar with Mark and his background, but I encourage those who aren’t to learn more about him, his opponent, and this very important race.

Brazen Fourth Circuit Denies Motion to Stay Ruling Against Virginia’s Marriage Laws


Without bothering to provide a sentence of explanation, the divided Fourth Circuit panel that recently ruled against Virginia’s marriage laws today denied (by the same 2-1 vote) a motion to stay its mandate. (The mandate is currently set to issue on August 20 21.)

Never mind that the Supreme Court in January issued an order staying a federal district court’s ruling against Utah’s marriage laws. Never mind that more sober appellate judges of various ideological dispositions (as Josh Blackman discusses here) have sensibly understood the Court’s order as “virtually instruct[ing] courts of appeals to grant stays in similar circumstances.” The Fourth Circuit does not even mention the Court’s January order.

As Blackman (who favors redefining marriage) discusses, procedural shenanigans like that engaged in by the Fourth Circuit are an assault on the rule of law.

I expect that the Supreme Court will restore procedural regularity before the mandate issues.

European High Court Ruling on Marriage


Last month, in Hämäläinen v. Finland [link fixed], the Grand Chamber of the European Court of Human Rights issued a ruling that reiterated that European countries are not required to grant same-sex couples access to marriage. As my testimony before the House Judiciary Committee makes clear, I don’t believe that contemporary foreign laws or legal decisions ought to have any bearing on how our Constitution is interpreted. But for those—including five Supreme Court justices—who think otherwise, it may be useful to highlight the Grand Chamber ruling.

The particular legal issue in Hämäläinen was whether Finnish law on recognition of a person’s newly asserted gender violates the European Convention for the Protection of Human Rights and Fundamental Freedoms. The petitioner (or “applicant”) Hämäläinen was born male, married a woman in 1996, and fathered a child with her. In 2006, he was diagnosed as a transsexual, started living as a woman, adopted female first and middle names, and remained married. Hämäläinen’s national identity number still indicates that Hämäläinen is male. (Odd numbers, I gather, identify males.) When Hämäläinen sought to have his identity number changed to a female (even) number, the Finnish courts, applying Finnish law, ruled that no such change could be made while he remained married to his wife.

By a vote of 14 to 3, the Grand Chamber ruled that Finnish law did not violate the Convention. I’m not going to summarize the majority’s reasoning here (see ¶ 87 for a succinct account), but will instead highlight those portions bearing on the permissible definition of marriage.

Noting that Finnish law does not recognize a right of same-sex couples to marry, the Grand Chamber observes that Hämäläinen’s “claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other.” (¶ 70.) The Grand Chamber “reiterates its case-law according to which Article 8 of the Convention”—which sets forth a “right to respect” for a person’s “private and family life”—“cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage.” (¶ 71.) Surveying the current situation in Europe, it concludes that “it cannot be said that there exists any European consensus on allowing same-sex marriages.” (¶ 74.)

The Grand Chamber also addresses Article 12 of the Convention, which provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

The Grand Chamber understands this “right to marry” as “enshrin[ing] the traditional concept of marriage as being between a man and a woman,” and it says that Article 12 “cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.” (¶ 96.)

For what it’s worth, the three dissenting judges—dissenting, that is, on whether Finland must allow Hämäläinen to obtain a female identity number—likewise recite that the Grand Chamber “has accepted that States have a legitimate interest in protecting marriage in the traditional sense by legally reserving marriage to heterosexual [read opposite-sex] partners.” (Dissent, ¶ 9.) 

The ECHR Sexual Orientation blog, which is very critical of the Hämäläinen ruling, offers this bottom line:

Overall, what all same-sex couples (LGB and T) can take from the Grand Chamber judgment in Hämäläinen v Finland is that the European Court of Human Rights has no intention of recognising a right to marriage under the Convention in the near future. 

Let’s see if those justices who so often look to Europe for guidance will follow the Grand Chamber’s lead.

Yes, Chris Christie Did Appoint Liberals to the New Jersey Supreme Court


While Governor Christie is quick to defend his judicial picks with conclusory assertions that his judges are conservative, we at the Judicial Crisis Network are not the only ones who think he’s all bluster.  Liberal New Jersey columnist George Amick thinks it’s a good thing that Christie’s nominees aren’t any more conservative than their predecessors:

The governor doth protest, but the sponsors of the ad had a point.

Despite his vow to change the direction of the Supreme Court, there’s no evidence that he’s really done so. Moreover, there’s little likelihood that he’ll have an opportunity to put even one more justice on the bench before he leaves office.

He details how Christie’s judges in several cases have more liberal backgrounds and voting records than those they replaced. Read it all here.

An Era of Unanimity on the Michigan Supreme Court?


In a Detroit News op-ed, Chief Justice Young and Justice Bridget McCormack of the Michigan Supreme Court explain an interesting trend on their court: 

Just a few years ago, you could count on one hand the number of unanimous opinions. This term, the court spoke unanimously 15 times – roughly 40 percent of our opinions. What does this mean? In resolving some of the most contentious issues involving interpretation of statutes and our constitutions, the seven justices saw eye to eye. 

Moreover, while we categorically reject the notion that justices make decisions based on political background, the data shows that this rejection is warranted. Consider the number of cases decided by a 5-2 majority divided along so-called party lines.

This happened only once and even then the reasons for dissent were different. Now, look at the number of 4-3 opinions. This term, that division only happened five times, and different combinations of justices nominated by both parties came down on either side in each of those cases.

What does this mean? The members of the Michigan Supreme Court are not governed by politics but by the rule of law.

The cohesion and collaborative approach of the court is also evident when examining the level of agreement between justices. For example, the two of us agreed 89 percent of the time. Looking at pairs of our colleagues, the level of agreement ranged from 80 percent to 98 percent. The bottom line is that our deliberations about cases involve spirited debate and discussion, but at the end of the day, most disagreements are resolved — not based on party allegiances but on the law as written by the legislature and signed by the governor.


This Day in Liberal Judicial Activism—August 12


2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.

This Day in Liberal Judicial Activism—August 11


2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no. 

This Day in Liberal Judicial Activism—August 9


1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court voids the death sentences that had been imposed on Manson and four other Family members. 

This Day in Liberal Judicial Activism—August 8


2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.”

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL pulls the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report on presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.  

Obamacare’s Little Red Pill


By now, you’ve probably had the opportunity to read about Jonathan Gruber, the economist and Obamacare architect who was caught on camera admitting: (1) that the Obamacare tax subsidies challenged in Halbig v. Burwell and King v. Burwell were intended to work pretty much the way the statute says; and (2) the structure of that provision was designed to put pressure on the states as part of the “ugly” political fight over Obamacare. Although Gruber has since changed his tune, those two propositions will come as nothing new to our faithful Bench Memos readers.

You’ve probably also read the running commentary on Halbig by left-wing journalists who say, well, nobody they talked to at the time said anything about yanking tax subsidies from recalcitrant states. The New Republic’s Jonathan Cohn, for instance, recently discovered that he himself explained to NPR back in 2010 that the Obamacare tax subsidies worked exactly the way the statute says. He still can’t quite convince himself that he was duped, saying, “I still think they are telling the truth. I still think it’s not a close call.”

It’s almost as if the media were transported to the Matrix and asked to choose between the red pill and blue pill – between truth and fiction – and they all chose the blue pill.

For every journalist in denial, though, there’s probably several people who took the red pill and are asking serious questions: Did the administration lie to us? Was the ACA all just a big mistake? How could this have happened? 

The definitive political history of Obamacare remains to be written, but here are a few thoughts.

First, I have no doubt that many non-political supporters of Obamacare sincerely believed what the administration’s surrogates and wonks were telling them. The administration would have wanted to keep the law’s highly political considerations out of public sight, safely tucked away from the policy discussion. Revealing the Chicago-style incentives behind the ACA’s mandates would have turned a debate about universal health care into a debate about freedom and individual liberty.

It’s worth remembering that the administration had no political reason to be candid about these highly coercive incentives and every political reason not to be candid. Journalists who styled themselves as policy experts committed malpractice by not digging deeper, especially analysts like Ezra Klein who at the time openly advocated ignoring the text of the bill. But by concealing the law’s coercive aspects, and with the assistance of a conveniently incurious news media, the administration breached faith with its own supporters.

Second, people who supported the fictional version of Obamacare should be hopping mad about being misled. The administration and congressional Democrats calculated that ramming through a broken Senate bill under cover of night would be better than passing anything with bipartisan support, even though the bill had massive policy problems that served “ugly” smashmouth politics. Rewriting the law later wasn’t a sign of good faith; it was a sign that the administration wanted more than anything else to avoid admitting the failure of its strategic deception.

Third, now that we have one of Obamacare’s architects describing the tax subsidy restrictions as “ugly” politics, the government can no longer plausibly claim in Halbig that Congress could never have intended to punish the states for failing to create exchanges. In fact, we now also know through a House committee report that the administration relied on similar hidden political considerations when it attempted to rewrite the tax-subsidy provision.

The government’s only remaining legal argument, that the statute is ambiguous, is a reach. Even the Fourth Circuit, which found ambiguity in the statute and ruled 3–0 against the plaintiffs, concluded that “the defendants have the stronger position, although only slightly.” Although I disagree with the Fourth Circuit’s conclusion on the merits, its comment should give Halbig critics pause about disparaging the D.C. Circuit opinion as “shamefully dishonest” or nothing more than the product of “kill-Obamacare judges.” If even the Fourth Circuit thinks the interpretation is a close call, the least that honest reporters can do is ignore the ideologues who are trying to get them to prejudge the case in the media.

Getting Things Backwards


As Justice O’Connor once recognized, the Supreme Court’s pro-abortion rulings “make[] it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, O’Connor herself later adopted the same practice of ad hoc nullification when she co-authored the majority opinion in Planned Parenthood v. Casey (1992) and when she joined the Court’s opinion striking down Nebraska’s ban on partial-birth abortion (Stenberg v. Carhart (2000)). So long as Planned Parenthood v. Casey survives, the “abortion distortion” will continue to impair the ability of citizens to make abortion policy through the ordinary democratic processes.

Linda Greenhouse thus gets things backwards when she complains that judges haven’t been willing to treat abortion as “a right like any other.” But she inadvertently stumbles on the truth when she observes that “there are constitutional rights and then there is abortion” and distinguishes abortion from “those rights the Constitution actually protects.” (Emphasis added.) 

This Day in Liberal Judicial Activism—August 7


2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

Followup on Harris v. Quinn


The National Right to Work Foundation notes this week that, in light of its U.S. Supreme Court victory a few weeks ago in Harris v. Quinn, “government union bosses from across the country are now abandoning their forced dues demands on home-based personal care and childcare providers,” and then gives chapter and verse. Relatedly, George Leef has this to say this week in favor of right-to-work laws.

This Day in Liberal Judicial Activism—August 6


1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.

King Might Be Headed to the Supreme Court; Perhaps Halbig To Follow


Last week, just over a week since what was probably the fastest circuit split in history, the plaintiffs in King v. Burwell filed their petition for certiorari with the Supreme Court.  That puts the case on a fast track to be considered by the Court during the upcoming Term.  And a good thing, too: this issue is already causing significant uncertainty in the insurance markets and ought to be decided conclusively as soon as possible.

Here’s how the process works: normally parties have 90 days to petition from an adverse ruling, but this issue is of such national importance that petitioners have moved forward with lightning speed.  The government will have until September 3, 2014 to file a brief in opposition to certiorari, and then the petitioners will have another 14 days to reply.  That means the briefing for the case should be done by mid-September, so the Court could be discussing the case and voting on certiorari as early as October.  An October conference would leave ample time to get on the oral argument calendar for this term.

The administration and its surrogates have been pushing the line that the split between the D.C. Circuit’s Halbig case and the 4th Circuit’s King decision is insignificant and assuring court watchers that a D.C. Circuit en banc panel will vacate the Halbig ruling.  

But I’m not so sure.

Clearly this type of case is exactly what the President had in mind when he made his court-packing blitz last year.  Rather than a 4-4 split of Republican and Democratic nominees on the D.C. Circuit, we now have a 4-7 split, with four of those Democratic nominees having come from this president, three of whom were specifically chosen in a campaign to eliminate the filibuster and pack the court.  Although the D.C. Circuit historically does not take many cases en banc — regarded as a sign of its collegiality — it’s possible that things have changed since the president’s nominees were seated.

But now those judges will have to decide whether they want their first high-profile act on the court to be one that is baldly political: overturning a meticulously-reasoned decision that overturned the IRS’s attempt to rewrite the Affordable Care Act.  It would make the new judges look like presidential pawns who are attempting to save his bacon, lowering them to the level of the disgraced and politicized IRS itself. 

Even if the D.C. Circuit judges are willing to take the fall for the President in this case, there probably won’t be time to undo the circuit split before the Supreme Court makes its decision about whether to hear the case. (If the D.C. Circuit could rush through it, that would look obviously political.) The government’s motion for rehearing en banc is due soon, but the court often takes months to decide the motion, schedule any additional briefing, and set an en banc hearing date. 

Thus the Supreme Court will likely be faced with an active circuit split when it considers the King petition.  It could, of course, refuse to decide until the outcome of the split becomes clear, but I think that is unlikely.  Even if the current split were resolved by a D.C. Circuit flip-flop, an Oklahoma district court is likely to issue an opinion soon that could easily lead to a 10th Circuit decision against the Administration.  Another case working its way through the lower courts in Indiana could deepen the split.  This issue is of obvious national importance, and fits into a pattern of executive overreach by this Administration that the Court has rebuked repeatedly (and often unanimously).  

The American people deserve to have the issue decided once and for all, and sooner rather than later.


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