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This Day in Liberal Judicial Activism—September 20


1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional. Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”  

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”


My Weekly Standard Article on Senate Elections and the Judiciary


Now available online, from the forthcoming issue of the Weekly Standard, is my article titled “The Senate and the Courts: The federal judiciary will follow the election returns.” (I didn’t come up with the title, but I like it.) Here’s my opening:

With little fanfare, President Obama has enjoyed remarkable success in his project to remake the federal courts in his own ideological image. How much more he achieves during his final two years in office depends in large part on whether Republicans win control of the Senate this November.


Reply to Richard Epstein on Hobby Lobby


Thanks to Richard Epstein for his response to my critique of his Hobby Lobby essay. I offer these points in reply:

1. Epstein says that he and I “are operating on different levels”—the Platonic judicial ideal for him versus the “practical politics of the bench” for me—in our differing assessments of Justice Alito’s opinion in Hobby Lobby. I don’t think that’s really the case.

For starters, Epstein in his essay doesn’t limit himself to the judicial ideal. He says, for example, that Alito “made a serious intellectual and tactical mistake” in failing to hold that the HHS mandate did not serve a compelling governmental interest (p. 50 (emphasis added)). Any judgment as to tactics necessarily involves an assessment of what is possible.

(As I point out in point 2 of my original post, I think that Epstein is wrong to allege that Alito made a tactical mistake. I also think that the “intellectual … mistake” that Epstein alleges—“to think it possible to leap from the first [(substantial burden on an exercise of religion)] to the third question [(least restrictive means)] without addressing this middle question [(compelling interest)]” (p. 50)—isn’t an intellectual mistake at all. It is possible to make such a move, and courts, through arguendo assumptions of the sort that Alito makes, do it routinely.)

Epstein says, “To an academic, it is the reasons that should really matter.” Well, most of my critique is directed against what I think are Epstein’s intellectually wrong reasons.

In short, Epstein’s essay, like my critique, combines “intellectual and tactical” arguments, and he and I differ on both.

2. Epstein contends that “Whelan disagrees with my conclusion that once it turns out that there is an accommodation that works for Hobby Lobby it does not follow that it has to work for religious institutions as well.” (Emphasis added; I think that Epstein means “it follows” instead of “it does not follow.”)

Epstein misunderstands my point. I don’t agree at all that Alito holds that the “accommodation … works for Hobby Lobby.” What Alito holds is that the government’s representations about the accommodation for religious nonprofits mean that the government can’t meet its burden of showing that the HHS mandate is the least restrictive means (the means least restrictive of Hobby Lobby’s religious liberty, that is) of furthering its (assumed) interest. That says nothing about whether the accommodation itself satisfies RFRA. (For more on this point, see here and point 3 here).

3. On the issue of substantial burden, Epstein says that I miss his point, “which is only that compliance is not only an issue about cost.” But Alito never says that the substantial-burden inquiry is “only” about the cost of noncompliance. (Maybe it is; maybe it isn’t.) What I objected to was Epstein’s assertion that the “correct analysis does not look at the cost of noncompliance.” (In a similar passage in his essay, Epstein charges: “Justice Alito attacks this problem in the wrong way when he insists that the cost of noncompliance, measured in fines that can run into the millions, show [sic] that the burden is substantial.”) I don’t see how Epstein’s assertion is defensible.

4. In his closing paragraph, Epstein says that “what is needed is a substantive analysis that Whelan fails to supply.” He challenges me to say whether I think his “normative case” that the government does not have a compelling interest “to force a religious group to act against its conscience by supplying standardized products that are available in competitive markets” is “wrong or correct.”

It’s true, of course, that I didn’t use the occasion of my critique of Epstein’s essay about Alito’s opinion to restate the extensive “substantive analysis” that I’ve provided (in the posts collected here (at 2.a) and in this earlier law-review essay) on why the HHS mandate doesn’t further a compelling interest. Epstein will find, on the one hand, that my reasons are not as sweeping as his, and, on the other, that they do rest in part on the fact that contraceptives are widely available. (E.g., “It cannot be seriously maintained that there is a general problem of lack of access to contraceptives.”)

Do I think that Epstein’s “normative case” is “wrong or correct”? That depends on what Epstein means by the question. If he is asking whether I think it is (to use his phrase) “an extravagant abuse of state power” to “force a religious group to act against its conscience by supplying standardized products that are available in competitive markets,” my answer is a definite yes. Further, I thank him and credit him for his brilliant work showing how counterproductive nondiscrimination principles can be (work that I drew on in my testimony last year before the U.S. Commission on Civil Rights).

But if Epstein is asking whether I think that the term compelling governmental interest in the Religious Freedom Restoration Act should be construed according to libertarian principles, I’ll have to express my doubts. Under an original public-meaning approach to statutory interpretation, the relevant inquiry is whether the public meaning of compelling governmental interest at the time that RFRA was enacted would support Epstein’s position. I’m not aware of any showing that it would.

On the Necessity for Normative Analysis in Hobby Lobby


In his recent NRO post responding to my essay on the Hobby Lobby case, Ed Whelan agrees that the decision in Hobby Lobby was correct, but thinks that I am incorrect to attack Justice Alito for slips in his reasoning. What is clear from his opening remark is that we are operating on different levels. The key claim in my essay is that the state does not have a compelling state interest to eradicate discrimination on grounds of race, or indeed anything else, in a competitive market. I summarized these arguments extensively elsewhere, most notably in my recent article in the Stanford Law Review where I offered my views on Title II of the 1964 Civil Rights Act that deals with discrimination in public accommodations. Ed Whelan’s position instead focuses on the practical politics of the bench. His “short answer” is that Justice Alito could not have garnered five votes for my position. End of story.

Whelan’s short answer is no answer at all. For all I know, Justice Alito could not have garnered even his own vote for the position I espouse. Indeed, if I were writing an analysis of the politically possible, I might have chosen to praise Justice Alito for his pragmatic accommodation that avoided a question that might have ripped his coalition asunder. But as someone whose views on the antidiscrimination laws have long disqualified him for holding public office in the United States, I am not interested in the politics of the situation. The title that I wrote was Right Result, Wrong Reasons.

To an academic, it is the reasons that should really matter. In my view there is a rising sense of authoritarian impatience that is running through the land and one of the instruments that is used to facilitate the unworthy extension of state power is the civil-rights laws in all their unsound applications. As I stated in my Stanford article, I understand, indeed insist, that some antidiscrimination law is the right response to monopoly power or to private coercion, where people are denied any alternative choices. But to say that there is a compelling interest for the government to force a religious group to act against its conscience by supplying standardized products that are available in competitive markets is to countenance an extravagant abuse of state power in my mind. I think that it is both necessary and proper to state that proposition in the most forceful way possible. Others are free to disagree, and prove me wrong. But silence in this case means that no one will try to prove incorrect a position that I regard as deeply subversive to any conception of individual liberty. I only wish that more Supreme Court Justices saw it that way. Certainly, nothing written by any Justice in Hobby Lobby examines my case. True, I did not refer to Justice Kennedy’s opinion, but his conclusory remarks only shows just how inbred judicial opinion has come on this question. He writes: “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” No argument; no explanation; no nothing.

Whelan disagrees with my conclusion that once it turns out that there is an accommodation that works for Hobby Lobby it does not follow that it has to work for religious institutions as well. In my view, there is no reason why a supposed accommodation that gives full relief to for profit firms can’t do the same for all sorts of religious institutions. But the key point is one that Whelan does not address, namely, that there is no reason to get into the question of least restrictive means if there is no compelling state interest to satisfy in the first place.

Whelan also takes me for task for saying that “the “correct analysis does not look at the cost of noncompliance, which may be high, but at the cost of compliance, which in monetary terms is far lower.” But his argument misses the point, which is only that compliance is not only an issue about cost. If it were the ability to avoid fines by outright payments, then of course the firm should do that. But the real point here is one of conscience. As I insisted in my article, paying one dime in support of a cause that one does not believe is the crux of the matter. No one should be required to pay any exaction, however small.

His statutory points are nits. I will mention just one. I mentioned that if Obamacare had specifically addressed this issue, it would count as a congressional trump. Whelan mentions a provision that I overlooked. “Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.” True enough, Obamacare did not do that. But the responses are two. First, if it had explicitly excluded the provision, my analysis would stand. Second, it is not clear to me that a first statute can declare its own dominance over a second one by specifying the way in which it is to be overruled any more than it could claim that the initial statute could only be overturned by a 60 percent vote in both Houses of Congress. It is a nice point for casuistic debate and I am uncertain as to its likely outcome.

The real battle between Whelan and myself is on the core application of the framework of the Religious Freedom Restoration Act to the contraceptive mandate under Obamacare. On that big question, what is needed is a substantive analysis that Whelan fails to supply. My challenge to him is to ask whether he thinks that my normative case is wrong or correct. On that issue, a tactical silence will just not do.

— Richard Epstein is the Laurence A. Tisch Professor of Law at the New York School of Law.

A Modest Proposal


In his latest Forbes column, George Leef suggests that, instead of killing lawyers, we deregulate them.


This Day in Liberal Judicial Activism—September 19


1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

Contra Richard Epstein on Hobby Lobby


In my discussion of the Hobby Lobby ruling at the Cato Institute’s Constitution Day symposium yesterday, I mentioned that I disagreed with much of law professor Richard Epstein’s essay on the case in Cato’s newly issued Supreme Court Review for last term. I’ll amplify my critique here.

Let me say at the outset that I very much admire Richard Epstein for his plethora of creative insights and his dogged determination. The reader of his essay will find much of interest. But I think that Epstein’s larger points are unsound.

As his subtitle (“Right Results, Wrong Reasons”) indicates, Epstein’s “thesis is that the five-member majority reached the right result, albeit for the wrong reasons” (p. 38). Let’s consider his arguments:

1. Epstein contends that it was “a serious mistake” for Justice Alito to have “found it unnecessary to decide whether the government had a compelling interest in imposing its contraceptive mandate” (p. 38). According to Epstein, Alito should simply have concluded that the government had no compelling interest. 

Epstein makes an extended libertarian argument that the federal government has no legitimate interest in “compel[ling] employers to make payments … that violate their religious beliefs when the very services at issue are freely available elsewhere” (p. 52; see generally pp. 50-58). (Yes, given the “organized repressive regimes in the Old South,” the Civil Rights Act of 1964 was justified as “a perfectly sensible second-best solution, but one that should not be kept in place now that the coercive institutional structure of segregation has been dismantled” (p. 66).)

The short answer to Epstein’s argument that Alito should have ruled on this basis is that Alito doesn’t have four colleagues who are Richard Epstein. Indeed, the most obvious explanation for Alito’s choice to assume arguendo the existence of a compelling interest, despite arguments to the contrary (see posts at 2.a here) that most justices would find much more appealing than Epstein’s, is that Alito couldn’t get a majority to hold that the HHS mandate didn’t serve a compelling governmental interest. (Epstein doesn’t mention Justice Kennedy’s concurring opinion, which, though rather opaque, certainly doesn’t signal that Kennedy was ready to make a majority on this point.)

2. Epstein contends that Alito not only shouldn’t have reached the least-restrictive-means inquiry but also “concluded, wrongly,” that the government “failed to choose the least restrictive means for its implementation” (p. 38). In a somewhat different criticism later, Epstein asserts that Alito’s least-restrictive-means argument “is at best incomplete because it brought no scrutiny to the overall system that it validated” (p. 59 (emphasis added).

Contrary to Epstein’s misunderstanding, Alito didn’t “validate” the overall system of the HHS mandate. Epstein thinks that Alito’s reliance on the accommodation for religious nonprofits as a less restrictive means requires Alito to have concluded that the accommodation satisfies RFRA. But he’s simply wrong on that point, for the reasons I’ve spelled out (see also point 3 here).

(This error of Epstein’s leads him further astray, as he wrongly asserts that Justice Sotomayor “may be right about the flip-flop” in the Wheaton College order (p. 51) and that “Alito should have been trapped … and Wheaton College sent packing” (p. 67).)  

3. Epstein even faults Alito on his substantial-burden analysis. According to Epstein, the “correct analysis does not look at the cost of noncompliance, which may be high, but at the cost of compliance, which in monetary terms is far lower” (p. 46). In his libertarian universe, “it is hard to think that any explicit requirement that someone perform an action that violates his or her core religious beliefs could ever be dismissed as an insignificant burden” (p. 48 (emphasis in original).

I think that Epstein is clearly wrong to assert that it is somehow improper to look at the cost of noncompliance. Hobby Lobby and its owners were facing massive fines for noncompliance with the HHS mandate. How can it possibly be improper to look to those fines to conclude that the HHS mandate substantially burdens their adherence to their religious beliefs?

Further, is there any reason to think that Alito would have gotten a majority for the aggressive libertarian position Epstein advances?

4. On the question whether a corporation is a person entitled to protection under RFRA, Epstein finds it “regrettable” that Alito “did not make explicit reference to the doctrine of unconstitutional conditions, which certainly applies to this case” (p. 44). But Alito reached his conclusion through ordinary statutory analysis. There was no need to reach for a constitutional trump. (Epstein supports his assertion that the notoriously difficult doctrine of unconstitutional conditions “certainly applies to this case” only by citing his own law-review article.)

5. While I’m at it, let me note a few more errors or confusions. (I’m not being exhaustive.)

In the second sentence of his opening paragraph, Epstein asserts that the Court in Hobby Lobby held that RFRA “precluded [HHS] from issuing regulations under the Affordable Care Act that required Hobby Lobby … to supply health insurance coverage for contraceptive and abortion services ….” (Emphasis added.)  No, the Court didn’t hold that RFRA precluded HHS from issuing the HHS mandate. It held merely that RFRA entitled Hobby Lobby to an exemption from the mandate.

One sentence later, Epstein asserts that “RFRA would not have applied at all if the ACA had explicitly required employers to observe the contraceptive mandate, because the latter specific statute would be a congressional trump of the earlier general statute.” That assertion is highly dubious at best. In a provision that Epstein is apparently unaware of, RFRA bolsters the already-robust presumption against implied repeal by stating that any repeal or override of its protections must be explicit: “Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.”

Epstein refers to “Justice Antonin Scalia’s sharp about-face on the Free Exercise Clause in the 1990 case Employment Division v. Smith.” The passage would seem to suggest that Epstein is contending that Scalia himself reversed his position (did a “sharp about-face”) on the Free Exercise Clause. I’m guessing that Epstein means instead that the Supreme Court, as a result of Scalia’s majority opinion, reversed its position. 

Toobin’s Botched Abortion Reporting


The New Yorker’s Jeffrey Toobin manages to botch quite a lot in a short piece tendentiously titled “The Disappearing ‘Undue Burden’ Standard for Abortion Rights.” For example:

1. Celebrating the “undue burden” standard for abortion regulations as Justice O’Connor’s “most important triumph,” Toobin contends “her position commanded a majority” in the Court’s 1992 decision in Planned Parenthood v. Casey. But only O’Connor and the two co-authors of her joint opinion in Casey adopted the undue-burden standard. Justices Blackmun and Stevens, who joined much of the joint opinion, did not join the part setting forth the undue-burden standard. Indeed, Blackmun wrote separately to insist: “Today, no less than yesterday, the Constitution and decisions of this Court require that a State’s abortion restrictions be subjected to the strictest of judicial scrutiny.”

2. Even more absurdly, Toobin contends that in 2006 “the remaining eight Justices joined [O’Connor] in embracing the ‘undue burden’ standard.” Gee, who knew that Justice O’Connor had managed to convert Justice Scalia to her view of things?

As O’Connor states in the first sentence of her 2006 opinion (in Ayotte v. New Hampshire), “We do not revisit our abortion precedents today, but rather address a question of remedy.” O’Connor’s opinion doesn’t even mention the undue-burden standard, except in one quote from the court below. In other words, no one embraced the undue-burden standard in that case because the appropriate standard wasn’t at issue.

3. Toobin claims that the federal ban on partial-birth abortions, which the Court upheld in its 2007 ruling in Gonzales v. Carhart, “disallowed what was then the most common form of second-trimester abortion.” But the Carhart majority distinguishes partial-birth abortion, or “intact D&E,” from the standard D&E (“the usual second-trimester procedure”), and it explains that the federal ban does not cover the standard D&E.  Does Toobin really not understand this elementary point?

4. Referring to a newspaper account of a Fifth Circuit oral argument the other day, Toobin contends that the “members of the Fifth Circuit panel seem to believe that anything short of a nationwide ban on abortion does not amount to an undue burden on women’s rights.” But there is nothing in the newspaper account to support his wild hyperbole. (The Fifth Circuit’s decision in March—by an all-female panel, as it happens—carefully applied the undue-burden standard in rejecting a challenge to other provisions of Texas law.)

This Day in Liberal Judicial Activism—September 17


A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

Ohio’s Emergency Appeal of Injunction Against Uniform Early-Voting Rules


In a case that might very quickly reach the Supreme Court, the state of Ohio has filed its Sixth Circuit merits brief in support of its emergency appeal of a federal district court’s preliminary injunction against an Ohio statute and related secretary of state directive that together provide expansive opportunities and uniform statewide hours for early absentee voting for this November’s elections. 

Here’s some brief background:

On the recommendation of a bipartisan body that represents all of Ohio’s county boards of elections, the Ohio legislature in February enacted a statute that changed the start of Ohio’s early absentee voting from five weeks before the election to four weeks before the election and that eliminated a one-week overlap with the close of the registration period. The Ohio secretary of state then established uniform times for early in-person absentee voting, including on two Saturdays and one Sunday. (Ohio voters can also vote early absentee by mail.)

Despite the fact that Ohio has the ninth most expansive early-voting schedule in the country, federal district judge Peter Economus ruled that the new rules violate equal-protection guarantees and section 2 of the Voting Rights Act. Ohio forcefully argues that Economus wrongly applied disparate-impact analysis to the equal-protection question and, by comparing Ohio’s new rules to its old rules (rather than to an objectively reasonable benchmark), wrongly applied “retrogression” analysis to the section 2 question. Last Friday, a Sixth Circuit motions panel, consisting entirely of Democratic appointees, denied Ohio’s request for a stay of the injunction.

Liberal election-law expert Rick Hasen has also expressed his serious doubts about Economus’s reasoning, including:

The main problem with the equal protection theory and the VRA section 2 theory is the same: Ohio’s law is not all that burdensome, and in fact it provides many opportunities for voting (such as a still very long early voting period of 28 days and no excuse absentee balloting for a long period) which are not available in other states. If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?  Although the judge says he is not applying a “non-retrogression” standard such as that which used to exist under section 5 of the VRA, that appears to be what he is doing to at least some extent. The judge says the cutbacks are relevant in a totality of the circumstances approach to section 2 VRA applicability.

For some odd reason, there seems to be lots of attention focused on the Seventh Circuit’s supposedly changing the election rules in Wisconsin at the last minute—even though the Seventh Circuit was simply allowing Wisconsin’s voter ID law to take effect—and very little on Economus’s very late interference with Ohio’s rules.

Confusing Nominations and Vacancies


TPM’s Sahil Kapur writes:

A total of 155 nominations for the executive and judicial branches are pending on the Senate floor, and there’s nowhere near enough time to confirm them all before the next Congress is sworn in. That includes 50 vacancies on district courts and 7 vacancies in appeals courts, and more will open up. 

But the 155 nominations “pending on the Senate floor” do not in fact “include[] 50 vacancies on district courts and 7 vacancies in appeals courts.” As the Senate executive calendar that Kapur links to shows, there are (by my quick count) only seven nominations of district-court judges pending on the Senate floor and zero nominations of federal appellate judges. As Kapur’s second link shows, Obama has not yet nominated anyone to any of the seven pending appellate vacancies, and he has made only 25 nominations to the 50 district-court vacancies. Further, as this more detailed list shows, 15 of those 25 nominations have been made since mid-June.

Update, 4:36 p.m.: Kapur has modified the passage to avoid the error.

The Meandering Judicial Philosophy of Judge Posner


The Washington Blade reports that Judge Richard Posner has essentially flip-flopped on the constitutional status of marriage definitions. As you probably read recently, Posner wrote the panel opinion for the Seventh Circuit striking down Indiana and Wisconsin’s traditional marriage definitions. The meandering 40-page opinion covers a lot of territory, ranging from psychological studies to his thoughts on parenting. Ed Whelan (Parts 1, 2, 3, and 4) and law professor Josh Blackman have already written about the opinion’s weaknesses on the merits.

Interestingly, the Blade notes that Posner was not always so confident in his views about a constitutional right to same-sex marriage:

In a 1997 book review published in the Michigan Law Review, for example, Posner was skeptical that the Constitution guaranteed same-sex marriage. The subject was “The Case for Same-Sex Marriage: From Sexual Liberty to Civilized Commitment” by Yale Law Professor William N. Eskridge, Jr. The book, which came out at a time when Hawaii was on track through the judiciary to legalize same-sex marriage, espouses the idea that courts must grant same-sex couples the right to marry as quickly as possible.

Although Posner acknowledges his belief that, without further study, same-sex couples should be allowed to adopt children just the same as different-sex couples, he disputes the notion that the right to same-sex marriage is guaranteed under the U.S. Constitution.

Indeed, as the Blade points out, Posner also expressed worries in a 1998 law review article entitled “Against Constructional Theory” about the inadequate factual basis for two decisions that would ultimately lay the groundwork for today’s same-sex marriage challenges. Speaking of the Supreme Court’s 1996 opinions in Romer v. Evans (1996) and United States v. Virginia (1996), Posner wrote:

My point is not so much that Romer and the VMI case [United States v. Virginia] were decided incorrectly as that the decisions are so barren of any engagement with reality that the issue of their correctness scarcely arises. It is the lack of an empirical footing that is and always has been the Achilles heel of constitutional law, not the lack of a good constitutional theory. But this raises the question of what the courts are to do in difficult constitutional cases when their ignorance is irremediable, though one hopes only temporarily so. Judges don’t yet know enough about the role of women in the military, or about the causes of homosexual orientation, to base decisions in cases such as Romer and VMI on the answers to these empirical questions.

Posner’s central point was that courts should not come up with constitutional theories without solid empirical—that is, social scientific—basis. (I’m pretty sure that’s not the sort of thing that the Constitution always requires, but let’s leave that issue aside.)

In the article, Posner ruminated at some length on the nature of opposition to “homosexual rights,” concluding that the state amendment in Romer fell “far short of [the] savagery” required to impose constitutional limitations.  Posner concluded with the following:

Inevitably, the judge’s vote in such a case will turn on his values and temperament. Those judges who believe (a belief likely to reflect a judge’s values and temperament rather than a theory of judicial review) in judicial self-restraint, in the sense of wanting to minimize the occasions on which the courts annul the actions of other branches of government, will consider ignorance of the consequences of a challenged governmental policy that is not completely outrageous a compelling reason for staying the judicial hand in the absence of sure guidance from constitutional text, history, or precedent. . . . So one thing that we may hope for through the application of the methods of scientific theory and empirical inquiry to constitutional law is the eventual accumulation of enough knowledge to enable judges at least to deal sensibly with their uncertainty about the consequences of their decisions. Ultimately many of the uncertainties may be dispelled. Until that happy day arrives, the most we can realistically ask of the judges is that they be mindful of the limitations of their knowledge. And I do not mean knowledge of constitutional theory.

Posner was clearly leaving himself wiggle room on the issue, and has used it. At some point between 1998 and 2012, the Blade notes, Posner changed his mind about same-sex marriage, announcing the change in a rambling posting on his blog that cited his newfound conclusions (based in part, it seems, on a Wikipedia entry).

But Posner has done more than discover new facts that require a different conclusion. In his Seventh Circuit opinion, Posner concluded that Indiana’s marriage definition fails rational-basis scrutiny, but demanded precious little of the social science that he would have demanded from same-sex marriage activists in 1998. Indeed, he flipped the burden around entirely, ultimately concluding that the states’ arguments in favor of their definitions constituted “unsupported conjecture.”  

I’ll say this: Nobody who reads a Posner opinion is going to mistake him for an originalist. 

Our New Trial-Lawyer Overlords


This past Tuesday, the Missouri Supreme Court struck down a portion of the state’s tort-reform laws, declaring in Lewellen v. Franklin that a cap on punitive damages violates the right to trial by jury. If this movie sounds familiar, you may be remembering Watts v. Lester E. Cox Medical Centers from 2012, when the same court struck down Missouri’s cap on medical-malpractice damages (at least noneconomic damages) on the same theory.

These cases are the latest manifestation of the trial lawyers’ domination of the Missouri Bar and the so-called “merit selection” process. It won’t surprise you to know that the trial lawyers are big fans of “merit selection” because it gives them the power to choose which candidates for Missouri Supreme Court are ultimately presented to the governor for nomination. Conflict of interest, anyone?

In any event, Lewellen is the latest in a series of cases striking down tort-reform statutes based on a faux-originalist theory that Judge Michael Wolff originally introduced in State ex rel. v. Diehl (Mo. banc 2003). The theory goes something like this: The state constitution guarantees that “the right of trial by jury as heretofore enjoyed shall remain inviolate.” This means what it did in 1820, when the Missouri’s constitution was adopted. For causes of action that have come into existence after 1820, the court must analogize the cause of action to a common-law cause of action that would have existed in 1820. No legislative limits on damages existed in 1820, and the jury decided damages at the time. Ergo, any legislative limit on damages violates trial by jury. Effectively, this freezes the legislature out from affecting any of Missouri’s substantive law of damages.

There are many logical and practical problems with this faux-originalist approach (other than its utter subjectivism). Two problems are immediately evident upon close examination of the constitution’s text. First, the provision guarantees who hears the trial, not which post-trial motions are permitted, or what substantive law is applied. Second, unlike the Bill of Rights’ jury-trial guarantee, Missouri’s right of jury trial has the further qualification that it be protected “as heretofore enjoyed.” That means that Judge Wolff’s forward-projection approach has it exactly backwards: The language preserves existing common-law rights of trial by jury but says nothing about yet-to-be-established causes of action.

An enormous fourth problem with this theory lurks in the background. The common law has long recognized the ability of a trial judge to set aside an excessive damages award and/or order a new trial. Blackstone notes the use of that power as early as 1655 and a Missouri Supreme Court case from 1831 finds nothing improper about using it. Even two years ago (in a case involving the same defendant, incidentally), the court explicitly defended its own continued use of remittitur. The court’s objection is not to modifying damage awards in principle; it’s just that the judiciary thinks the legislature can’t do anything about it.

Think about that for a moment: Missouri judges, who are screened by the trial lawyers who appear before them, now claim to have exclusive power over damages awards. The fox thinks it owns the henhouse.

Although this week’s decision had no recorded dissent, Watts, the precedent it relies on, threw out 20 years of contrary precedent by a one-vote margin of 4–3. A Republican-appointed judge recused himself for unknown reasons, but then the chief justice, who was appointed by a Democrat, appointed another Democrat-appointed judge to fill his spot. The replacement judge, Judge Sandra Midkiff, cast the deciding vote.

Oddly, Judge Patricia Breckenridge, the judge who wrote the opinion in Lewellen, joined the vigorous dissent in Watts. Yet she doesn’t seem to have any lingering concerns about extending that precedent to other areas. In an ironic twist, Breckenridge was appointed by the champion of Missouri tort reform, Republican Matt Blunt, over vigorous conservative opposition.

I wish I could say I wasn’t worried about where this line of cases will go. The whole thing keeps getting weirder and weirder. 

[UPDATED: Watts was in 2012, not 2013 as this post originally stated.]

[UPDATE] I should also note that in fairness to Governor Blunt, he picked the least bad option. The state’s bar-dominated nominating commission sent him three lousy nominees to choose from, and he selected the best of the three.  If he hadn’t picked Breckenridge, the commission itself would have made its own choice, which probably would have been much worse. The fact that the least-bad candidate still turned out to be aligned with the state’s trial lawyers shows how awful the Missouri Plan is, not that Governor Blunt made a bad choice.

This Day in Liberal Judicial Activism—September 15


1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

My Amicus Brief in Young v. UPS


Yesterday I filed an amicus brief with the Supreme Court in support of Peggy Young, who is seeking to overturn a decision by the Fourth Circuit Court of Appeals that took an atextual and unprincipled approach to the question of accommodations under the Pregnancy Discrimination Act.  You can find the amicus brief here.

Clarification on Bush Appointees


In my post last week on “What the November Elections Mean for the Federal Courts of Appeals,” I stated, “As things now stand, President Obama has appointed exactly the same number of federal appellate judges—52—as President George W. Bush appointed in his first six years.” I inadvertently included in the Bush total his short-term recess appointment of Charles Pickering. Bush’s six-year total for confirmed federal appellate judges was 51.

Also, since the time of that post, the Senate has confirmed Obama’s nomination of Jill Pryor to the Eleventh Circuit. So that puts Obama ahead of Bush 53 to 51.

Challenge to Wisconsin Voter ID


According to this news account, the challenge to invalidate Wisconsin’s voter-ID law prior to the upcoming election appeared to get a cold reception today before the Seventh Circuit panel hearing the case. The proper framework for determining whether such laws violate Section 2 of the Voting Rights Act is the subject of this paper by Hans von Spakovsky and me.

This Day in Liberal Judicial Activism—September 12


2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.” 

Revised Heritage Guide to the Constitution


The Heritage Foundation is today releasing a revised second edition of its Heritage Guide to the Constitution, the first edition of which was issued in 2005. The second edition “takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform.”

On a review of the advanced galley, I am confident that the praise that I offered for the first edition (in this NR book review) will apply fully to the revised edition:

The Heritage Guide to the Constitution is an invaluable reference work that anyone interested in learning more about the Constitution should have on his bookshelf. It consists primarily of a couple hundred or so brief essays — the vast majority no more than a page or two in length — on every clause or subclause in the Constitution. Each essay attempts to explain the original meaning of the provision that it addresses as well as to set forth the current state of the law on that provision. Each essay also sets forth, where appropriate, cross-references to other relevant provisions in the Constitution, citations to legal materials for further exploration, and a list of significant cases.

More than 100 experts — mostly law professors but also academics from a variety of other fields as well as a smattering of judges and lawyers — have contributed the essays. The essays are clearly written, concise, and highly informative. They are scholarly and dispassionate, not polemical. The Heritage Guide also contains three brief and elegant introductory essays by the editors — one by [former Attorney General Edwin] Meese on basic constitutional principles, one by [Matthew] Spalding on the history of the Constitutional Convention, and one by [David] Forte on originalism.

Anyone doing serious research on a question of constitutional law will find the Heritage Guide an excellent starting point. But the book is also a pleasure to browse, as the casual reader can bounce from topics like the Recess Appointments Clause to Treason to the Rights Retained by the People. The fact that less than one-fourth of the book relates to constitutional amendments may also serve to remind the modern reader, who too often hears about little other than the Bill of Rights and some generalized, nontextual right of privacy, that the real genius of the Constitution, the greatest guarantee of our liberties, lies in its scheme of separated powers.

Abe Fortas and George Hamilton


I recently had occasion to expose the absurdity of Bruce Allen Murphy’s assertion, in his cartoonish and incompetent new biography of Justice Scalia, that Scalia’s “extrajudicial speeches and conduct … ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court.” As I pointed out, Murphy himself, in his published entry on “Extrajudicial Activities” in the Encyclopedia of the Supreme Court of the United States (2008), had described conduct of Fortas’s that was far removed from even Murphy’s most tendentious claims about Scalia. Fortas had helped LBJ “draft pieces of  legislation,” had “revise[d] State of the Union addresses in the Oval Office,” had “served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup,” had discussed with LBJ “issues then under consideration by the Supreme Court,” and had agreed to payment to serve on a foundation funded by Louis Wolfson, whose appeal of his criminal conviction was pending in federal court.

It turns out that there’s still more on Fortas. According to this National Law Journal article (registration required for access, I think), Villanova law professor Tuan Samahon has discovered through FOIA requests that in 1966 Abe Fortas was (in Samahon’s words) “involved as LBJ’s toady helping [FBI deputy director] Cartha DeLoach investigate a would-be son-in-law to find derogatory information about him.” The “would-be son-in-law” who was dating LBJ’s daughter was Hollywood actor George Hamilton.

The article also discusses another FBI memo about an alleged relationship between Fortas and a teenaged male prostitute, but the evidence seems dubious.

By the way, on the Wolfson scandal, a reader calls to my attention that Fortas’s conduct appears to have been much worse than Murphy’s Encyclopedia entry suggests. Among other things, as a 1977 Washington Post article by Bob Woodward spells out, a transcript of a conversation that Wolfson had with Fortas (and that Wolfson secretly recorded) indicates that in April 1969 Fortas, while still a justice, solicited LBJ to issue Wolfson a pardon. The transcript also indicates that Fortas initially planned to decline LBJ’s proposed nomination of him to the Court in 1965 because of the financial sacrifice that moving from private practice to the Court would entail but that Wolfson’s offer of financial assistance to Fortas led him to change his mind and accept the nomination. (Murphy’s biography of Fortas, which I haven’t read, might well address these matters.)


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