This Day in Liberal Judicial Activism—November 24

by Ed Whelan

2004—A New Hampshire law, enacted in 2003, generally requires that abortionists provide 48 hours’ advance notice to parents of minor daughters who have arranged to undergo abortion. The law provides for various exceptions to the notice requirement but does not set forth an express exception for hypothetical instances in which compliance with the notice period would threaten severe damage to the minor’s health. In Planned Parenthood v. Heed, a First Circuit panel invalidates the law in its entirety because it lacks a health exception.

On review, the Supreme Court rules unanimously (in Ayotte v. Planned Parenthood) that the First Circuit erred in failing to consider whether narrower relief, such as enjoining enforcement of the law only in instances that presented a severe health risk, was appropriate.

This Day in Liberal Judicial Activism—November 23

by Ed Whelan

2016—Happy Thanksgiving! Be grateful that the secular activists in the judiciary weren’t dominant when George Washington was president, or we’d never have this great, and deeply religious, American feast. In the words of Washington:

Whereas it is the duty of all nations to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor; and Whereas both Houses of Congress have, by their joint committee, requested me to “recommend to the people of the United States a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness”:

Now, therefore, I do recommend and assign Thursday, the 26th day of November next, to be devoted by the people of these States to the service of that great and glorious Being who is the beneficent author of all the good that was, that is, or that will be; that we may then all unite in rendering unto Him our sincere and humble thanks for His kind care and protection of the people of this country previous to their becoming a nation; for the signal and manifold mercies and the favorable interpositions of His providence in the course and conclusion of the late war; for the great degree of tranquility, union, and plenty which we have since enjoyed; for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national one now lately instituted for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and, in general, for all the great and various favors which He has been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech Him to pardon our national and other transgressions; to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually; to render our National Government a blessing to all the people by constantly being a Government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed; to protect and guide all sovereigns and nations (especially such as have shown kindness to us), and to bless them with good governments, peace, and concord; to promote the knowledge and practice of true religion and virtue, and the increase of science among them and us; and, generally to grant unto all mankind such a degree of temporal prosperity as He alone knows to be best.

1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.” To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy: as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”

Never mind that the supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.” (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).

A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.” He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”

Judicial Nominations Update

by Carrie Severino

Last week, another nominee to a U.S. District Court was confirmed, bringing the total number of federal judicial nominees confirmed thus far to fourteen. It also marked the third time this year that the Democratic minority, in their relentless pursuit of obstruction, has required a cloture vote for a nominee originally nominated during the Obama administration.

Also last week, Senate Majority Leader Mitch McConnell filed cloture motions on Greg Katsas, nominee to the U.S. Court of Appeals for the D.C. Circuit, and Dabney Friedrich, nominee to the U.S. District Court for the District of Columbia. Both are expected to have confirmation votes following the Thanksgiving recess.

On Thursday, Senate Judiciary Committee Chairman Chuck Grassley announced that he was scheduling a Senate Judiciary Committee hearing for David Stras, nominee to the U.S. Court of Appeals for the Eight Circuit, and Kyle Duncan, nominee to the U.S. Court of Appeals for the Fifth Circuit, despite not receiving two positive blue slips from the respective nominees’ home state senators. That hearing is scheduled for November 29th.

Here is this week’s full update on federal judicial nominations.

Number of total current and known future vacancies: 161

Courts of Appeals: 23

District/Specialty Courts*: 138

Number of pending nominees for current and known future vacancies: 48

Courts of Appeals: 10

District/Specialty Courts: 38

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes: 20

Courts of Appeals: 1

District/Specialty Courts: 19

Nominees Confirmed by the Senate: 14

Supreme Court: 1

Courts of Appeals: 8

District/Specialty Courts: 5

Re: Judge Kim McLane Wardlaw Makes Her Mark

by Ed Whelan

A quick follow-up to my post yesterday highlighting Ninth Circuit judge Kim McLane Wardlaw’s extraordinary record of being summarily reversed by the Supreme Court:

Wardlaw co-authored the majority opinion in this divided Ninth Circuit ruling last week. The district court had ordered the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (“DACA”) policy, and the government asked the Ninth Circuit to block the district court’s order. Wardlaw’s majority opinion rejected the government’s request.

Notably, the dissent in the case was written by Obama appointee Paul J. Watford. Some excerpts from Watford’s dissent (some citations omitted):

The district court’s order violates two well-settled principles governing judicial review of agency action under the Administrative Procedure Act. The first is that a court ordinarily conducts its review “based on the record the agency presents to the reviewing court.” … The second principle is that documents reflecting an agency’s internal deliberative processes are ordinarily not part of the administrative record….

In my view, the district court exceeded the scope of its lawful authority to expand the administrative record. The order sweeps far beyond materials related to the sole reason given for rescinding DACA—its supposed unlawfulness and vulnerability to legal challenge. The order requires the inclusion of all documents mentioning DACA-related issues of any sort, and is overbroad for that reason alone. But even if the order had been limited to documents analyzing the risk that DACA might be invalidated, those materials are deliberative in character and thus could not be made part of the administrative record absent a showing of bad faith or improper behavior. And to the extent the order will compel the production of communications between the Acting Secretary and high-level officials in the White House—including, potentially, the President himself—the order raises the same sensitive separation-of-powers concerns that made mandamus relief appropriate in Cheney.

These departures from settled principles are enough to establish that the district court’s order is “clearly erroneous as a matter of law,” which is the most important of the factors we consider when deciding whether to grant mandamus relief. The other factors weigh in favor of granting relief as well. The order isn’t immediately appealable, and if relief is denied the harm inflicted will be immediate and irreparable. As the declarations submitted by the government attest, the search for documents responsive to the court’s order will be burdensome and intrusive, given the large number of government officials who may have provided written or verbal input to the Acting Secretary. And the damage caused by public disclosure of otherwise privileged materials can’t be undone following an appeal from the final judgment.

This strikes me as a classic case in which mandamus relief is warranted, and I would therefore grant the writ.

Unlike Wardlaw, Watford is highly respected for his ability. A former clerk to Justice Ginsburg, he was also said to be on President Obama’s short list for the Scalia vacancy. So his strong dissent from a Wardlaw opinion is likely to grab the attention of the Supreme Court, in the event that the government chooses to seek relief in the Court.

This Day in Liberal Judicial Activism—November 22

by Ed Whelan

2006—It’s monkey business as usual at the Ninth Circuit. A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable. Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

University Club Book Fair

by Ed Whelan

Next Wednesday evening, November 29, my co-editor Chris Scalia and I will be at the University Club’s annual book fair in Washington, D.C., to sell and sign copies of Scalia Speaks. The book fair is open to the public and is free.

Justice Scalia was a longtime member of the University Club, and Scalia Speaks includes two delightful speeches he delivered there, one (“Games and Sports”) on receiving a sports award in 1997, and the other (“William Howard Taft”) for the Club’s Founder’s Day celebration in 1995.

Judge Kim McLane Wardlaw Makes Her Mark

by Ed Whelan

When the Supreme Court summarily reverses a lower court’s ruling—that is, when it reverses without seeing any need for briefing on the merits and oral argument—that’s ordinarily* quite a black mark for the judge who authored the opinion below. Most federal appellate judges go through their entire careers without such a summary reversal.

And then there’s Ninth Circuit judge Kim McLane Wardlaw (appointed to that court by President Clinton).

The Supreme Court’s unanimous summary reversal two weeks ago in Kernan v. Cuero marks at least the fourth such reversal of a Wardlaw ruling, on top of those in McDaniel v. Brown (2009), Whitman v. Dep’t of Transportation (2006), and Gonzales v. Thomas (2006). It’s almost as if she’s deliberately competing against her colleague Stephen Reinhardt for the Lifetime Summary Reversal Award. (My thanks to the reader who called Wardlaw’s feat to my attention.)

Perhaps not coincidentally, one feature that three of the four Wardlaw rulings share is that Judge Diarmuid F. O’Scannlain—one of the few very bright spots on a dismal court—was in dissent.

* I say ordinarily because there might be instances when the judge below is compelled by badly mistaken circuit precedent to rule as he did.

This Day in Liberal Judicial Activism—November 21

by Ed Whelan

2013—By a 52-48 vote (with all Republicans and three Democrats voting no), the Senate abolishes the filibuster—the 60-vote cloture threshold—for lower-court and executive-branch nominees. The immediate effect of the abolition is to enable the confirmation of three D.C. Circuit nominees.

More broadly, Senate Democrats succeed in proving that they can dish it out but can’t take it. A decade earlier, now-Senate majority leader Harry Reid and other leading Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s judicial nominees, and they bitterly (and successfully) resisted Republican efforts in 2005 to abolish the filibuster. Reid, for example, voted against cloture at least 25 times on 13 different Bush nominees, but he is outraged that Republicans defeated a grand total of seven cloture motions on President Obama’s nominees.

New York Events for Scalia Speaks

by Ed Whelan

I’ll be in New York City and on Long Island for three events on Scalia Speaks in the week after Thanksgiving.

On Monday, November 27, at 6:00 p.m., I’ll speak to the Long Island lawyer chapter of the Federalist Society in Mineola. More info here.

On Tuesday, November 28, the Manhattan Institute will kindly host me for a noon event in New York City. Manhattan Institute events are generally invite-only; however, seats may still be available. If you’re interested in attending this event, please click here and include the names of those who would like to attend.

On Tuesday evening, at 6:00, I will speak to the New York City lawyers chapter of the Federalist Society. More info here.

I’m very much looking forward to all three events.

This Day in Liberal Judicial Activism—November 18

by Ed Whelan

2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution. The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

President Trump’s Expanded Supreme Court List

by Ed Whelan

Just issued: President Trump’s new list of candidates for the next Supreme Court vacancy. The list includes the candidates on the old list (minus Justice Gorsuch, of course) and adds five new names:

Amy Coney Barrett, Seventh Circuit

Britt C. Grant, Georgia supreme court

Brett M. Kavanaugh, D.C. Circuit

Kevin C. Newsom, Eleventh Circuit

Patrick Wyrick, Oklahoma supreme court

President Trump Adds Names to List of Potential Supreme Court Nominees

by Carrie Severino

Today President Trump has announced an expansion of his list of potential Supreme Court nominees for the next opening. It includes excellent federal and state court judges, including two that Trump himself nominated. All have strong records of a principled approach to judging and represent rising stars in the judiciary. Below are links to bios of the new members of the list.

Judge Amy Coney Barrett

Justice Britt Grant

Judge Brett Kavanaugh

Judge Kevin Newsom

Justice Patrick Wyrick

Who is Judge Brett Kavanaugh?

by Carrie Severino

Judge Brett Kavanaugh is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 52

Current Position: Circuit Court Judge, U.S. Court of Appeals for the D.C. Circuit (Washington, D.C.)

Education:

  • B.A., Yale College (1987)
  • J.D., Yale Law School (1990); Notes Editor, Yale Law Review

Judicial Clerkships: Judge Walter Stapleton of the U.S. Court of Appeals for the Third Circuit (1990-91); Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit (1991-92); Associate Justice Anthony M. Kennedy of the U.S. Supreme Court (1993-94)

Experience:

  • 1992-1993: Bristow Fellow, Office of the Solicitor General, U.S. Department of Justice (Washington, D.C.)
  • 1994-1997, 1998: Associate Counsel, Office of Independent Counsel Kenneth W. Starr (Washington, D.C.)
  • 1997-1998, 1999-2000: Partner, Kirkland & Ellis LLP (Washington, D.C.)
  • 2003-2006: Assistant to the President and Staff Secretary to the President (Washington, D.C.)
  • 2006-present: Circuit Court Judge, U.S. Court of Appeals for the D.C. Circuit

Notable Matters:

  • Judge Kavanaugh was nominated to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush.
  • Judge Kavanaugh has taught courses at Harvard Law School, Yale Law School, and Georgetown University Law Center; published scholarly articles in numerous law review and journals; and is a member of the Advisory Committee on Appellate Rules of the Judicial Conference of the United States.
  • In 2012, Judge Kavanaugh wrote a dissent to the denial of rehearing en banc in Coalition for Responsible Regulation v. EPA, which involved a challenge to greenhouse gas regulations promulgated by the EPA. Judge Kavanaugh wrote that the EPA’s interpretation of the term “air pollutant” to include greenhouse gases in a provision of the Clean Air Act was inappropriately broad (“When an agency is faced with two initially plausible readings of a statutory term, but it turns out that one reading would cause absurd results, I am aware of no precedent that suggests the agency can still choose the absurd reading and then start re-writing other perfectly clear portions of the statute to try to make it all work out.”) Warning of the of the separation of powers issues implicated, Judge Kavanaugh wrote that “[a]llowing agencies to exercise that kind of statutory re-writing authority could significantly enhance the Executive Branch’s power at the expense of Congress’s and thereby alter the relative balance of powers in the administrative process.” The Supreme Court later overturned the D.C. Circuit panel decision in part, citing Judge Kavanaugh’s dissent from denial of hearing en banc. See Utility Regulatory Group v. EPA, 134 S.Ct. 2427 (2014).
  • In 2016, Judge Kavanaugh wrote the majority opinion in PHH Corp. v. Consumer Financial Protection Bureau, 839 F. 3d 1, which found the structure of the CFPB to be unconstitutional. The CFPB, an independent agency, was created by the Dodd-Frank Act. Unlike other independent agencies, which are headed by multimember commissions, the CFPB is headed by an individual director who can only be removed for cause. In his opinion for the three-judge panel, Judge Kavanaugh wrote that the CFPB’s unusual structure “lacks the critical check and structural constitutional protection” against arbitrary decision making found in agencies that are headed by multi-member commissions, and thus posed a threat to individual liberty. The D.C. Circuit granted the CFPB’s petition for rehearing en banc and is currently considering the case.

Biographical Notes: Judge Kavanaugh is originally from Bethesda, Maryland. He is married and has two daughters.

Who is Justice Patrick Wyrick?

by

Justice Patrick Wyrick is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 36

Current Position: Associate Justice, Oklahoma Supreme Court (Tulsa, OK)

Education:

  • B.A. University of Oklahoma (2004)
  • J.D., University of Oklahoma College of Law (2007)

Judicial Clerkships: Judge James H. Payne, U.S. District Court for the Eastern District of Oklahoma (2007-2008)

Experience:

  • 2008-2011: Associate, GableGotwals (Tulsa, OK)
  • 2011-2017: Solicitor General, State of Oklahoma Office of the Attorney General (Tulsa, OK)
  • 2017-present: Associate Justice, Oklahoma Supreme Court (Tulsa, OK)

Notable matters:

  • Governor Mary Fallin appointed Justice Wyrick to the Oklahoma Supreme Court in early 2017.
  • As Solicitor General for the State of Oklahoma, Justice Wyrick represented Oklahoma before the U.S. Supreme Court, the Oklahoma Supreme Court, and other federal and state courts. He also authored legal opinions for then-Attorney General for the State of Oklahoma, Scott Pruitt, and other Oklahoma state officials.
  • Justice Wyrick successfully represented the State of Oklahoma before the U.S. Supreme Court in Glossip v. Gross (2015), which concerned the constitutionality of Oklahoma’s lethal injection protocol. The Court held that there was insufficient evidence that Oklahoma’s use of midazolam as the initial drug in its execution protocol entailed a substantial risk of severe pain in violation of the Eighth Amendment.
  • During Jutice Wyrick’s tenure as Solicitor General, Oklahoma joined states challenging the Affordable Care Act and the Clean Power Plan.

Professional Associations: Justice Wyrick has spoken at Federalist Society events about issues including Supreme Court litigation, the death penalty, and the Affordable Care Act.

Biorgraphical Notes: Justice Wyrick is a fourth generation Oklahoman and was born and raised in Atoka, Oklahoma. He is married and has three children.

Who is Justice Britt Grant?

by Carrie Severino

Justice Britt Grant is one of President Trump’s potential nominees to the U.S. Supreme Court.

Age: 39 (approximate)

Current Position: Justice, Supreme Court of Georgia (Atlanta, GA)

Education:

  • B.A. Wake Forest University (2000); summa cum laude; Honor Scholar
  • J.D., Stanford Law School (2007); with distinction; President, Stanford Federalist Society; Co-Founder and Co-President, Stanford National Security and the Law Society; Managing Editor, Stanford Journal of International Law.

Judicial Clerkships: Judge Brett M. Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit (2007-2008)

Experience:

  • 2001-2004: Domestic Policy Council, USA Freedom Corps, and Office of Cabinet Affairs, The White House (Washington, D.C.)
  • 2008-2012: Associate, Kirkland & Ellis LLP (Washington, D.C.)
  • 2012-2014: Counsel for Legal Policy, State of George Office of the Attorney General (Atlanta, GA)
  • 2015-2017: Solicitor General, State of Georgia Office of the Attorney General (Atlanta, GA)
  • 2017-present: Justice, Supreme Court of Georgia (Atlanta, GA)

Notable matters:

  • Justice Grant was appointed to the Georgia Supreme Court by Governor Nathan Deal in January 2017.
  • As Solicitor General of the State of Georgia, Justice Grant served as the chief appellate lawyer and primary constitutional advisor to the Attorney General of Georgia. In that capacity, Justice Grant represented the State of Georgia in matters before the U.S. Supreme Court, various federal Circuit Courts of Appeal, the Georgia Supreme Court, and the Georgia Court of Appeals.
  • At Kirkland & Ellis LLP, Justice Grant’s practice including matters involving products liability, antitrust, class action defense, contracts, defamation, multi-district litigation, and constitutional law.
  • During Jutice Grant’s tenure as Solicitor General, Georgia joined states challenging the Affordable Care Act and the Clean Power Plan.

Professional Associations

  • Justice Grant currently serves on the Federalism & Separation of Powers Executive Committee of the Federalist Society and as a member of the Executive Board of the Atlanta Chapter of the Federalist Society.
  • Justice Grant is a member of the State Bar of Georgia and of the Appellate Practice Section of the State Bar of Georgia.

Biographical Notes: Justice Grant is a Georgia native. She was born in Atlanta, Georgia and raised in Fulton County. Justice Grant is married and has three children.

This Day in Liberal Judicial Activism—November 17

by Ed Whelan

2014—For the second month in a row, the Supreme Court (in Frost v. Van Boening) summarily and unanimously reverses an opinion authored by Ninth Circuit judge Sidney Thomas. Thomas, a native of Montana, was trotted out in 2010 as a supposed moderate candidate for the Supreme Court vacancy that Elena Kagan ended up filling, but he keeps showing that he’s really just Stephen Reinhardt dressed up in a cowboy hat.

2016—In an American Bar Association panel discussion, former Obama White House counsel Kathryn Ruemmler candidly acknowledges that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the vacancy arising from Justice Scalia’s death.

Ruemmler’s remark shows that she (sensibly) rejects the “silly” and “obviously fatuous” claim by Erwin Chemerinsky, Larry Tribe, and some other law professors that the Senate had a constitutional duty to hold a hearing and vote on President Obama’s nomination of Merrick Garland. But neither her statement nor the obvious lack of merit of the constitutional claim will deter some from continuing to peddle it.

Supreme Court to Decide if FACT Act Hacks Away at First Amendment

by James Gottry

Should pro-life pregnancy-care centers be compelled to provide free advertising for abortion providers like Planned Parenthood? On Monday, the U.S. Supreme Court agreed to consider this very question, which the case National Institute of Family and Life Advocates v. Becerra presents.

California lawmakers made their position on abortion abundantly clear when they passed a law called the “Reproductive FACT Act.” The law, which took effect in January 2016, targets pro-life pregnancy-care centers. Let’s be clear, no speculation or inference regarding the law’s intent is necessary; the state admitted targeting centers that “discourage” abortion. And they do so brazenly.

The law forces pregnancy-care centers to shill for the abortion industry by displaying an advertisement that advises women on how they can obtain an abortion from the state — complete with a phone number. Callers are referred to abortion giant Planned Parenthood and other abortion facilities. This bears repeating: Under California law, private pro-life pregnancy-care centers are required to put signs on their walls promoting free or low-cost abortion and contraception services, and providing contact information for those abortion providers.

Forced to undermine their essential purpose

These pro-life centers, such as Pregnancy Care Clinic and other members of the National Institute of Family and Life Advocates, were founded to provide assistance to women facing unplanned pregnancies. Specifically, they offer pro-life information and resources, as well as practical medical or non-medical support that will support a woman’s choice to give birth. Accordingly, forcing these centers to promote abortion goes far beyond demanding that a business advertise for its competitors (though that alone would be absurd). This law requires the centers to promote services that are anathema to their core reason for existing.

Any analogies will sound absurd, but only because the reality defies reason. Consider a vegan restaurant forced to post fliers for Outback Steakhouse, or an Alcoholics Anonymous group required to promote a nearby bar’s happy hour. Should PETA be made to share information on how to obtain free or low-cost hunting licenses? Should the American Lung Association be compelled to advertise for cigarette manufacturers?

The obvious answer to these questions affirms the simple truth about this case: Pro-life pregnancy-care centers should not be forced to contradict their core message.

Free to speak, and free not to speak

The Supreme Court — and the First Amendment — have not been silent on the issue. In 1986, the Supreme Court held that a utility company couldn’t be forced to include in its billing envelope a message supplied by a public-interest group. Even though the message could have been added without increasing costs to the utility company, the court correctly noted that the right to free speech includes “the choice of what not to say.” For that reason, the company could not be required to spread a message with which it disagreed.

A more recent example comes from 2013, where the Supreme Court struck down a law that required groups receiving U.S. government funds for international HIV and AIDS work to adopt a policy explicitly opposing prostitution. In the opinion, Chief Justice John Roberts referred to the “basic First Amendment principle that freedom of speech prohibits the government from telling people what they must say,” adding that “[t]he government may not . . . compel the endorsement of ideas that it approves.”

The abortion business doesn’t need indentured spokespersons

Planned Parenthood receives more than $500 million each year in federal funding. The group boasts of more than $1.8 billion in total assets and, in fiscal year 2016, spent more than $25 million in branding and “advocacy capacity” alone. That same year, they performed 328,348 abortions. Suffice it to say, the business of abortion is set up to thrive (monetarily speaking).

In contrast, pregnancy-care centers are generally small nonprofits with limited funding and modest budgets. They offer their services free of charge (no abortion revenue to boost the budget) and seek only to come alongside expectant mothers and unborn children, helping both to thrive.

Abortion has already silenced enough voices. The abortion industry shouldn’t be allowed to force those that remain to promote its agenda.

James Gottry is legal counsel with Alliance Defending Freedom, which represents the National Institute of Family and Life Advocates.

This Day in Liberal Judicial Activism—November 16

by Ed Whelan

1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct. Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is 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 reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

2009—In a unanimous per curiam opinion in Wong v. Belmontes, the Supreme Court summarily reverses the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid O’Scannlain. That’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court).

Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

Sleeper SCOTUS Blockbuster may be the Next Kelo

by Carrie Severino

It took many people by surprise when the Supreme Court ignited a firestorm in the now-infamous Kelo case by giving cities the ability to seize personal property from a private owner and give it to a developer for the alleged “public purpose” of increasing tax revenues. The Court will have another chance to rule on key property rights in what may be this term’s sleeper blockbuster: a patent case that has major implications for constitutional due process guarantees and protecting private property.

The Court will be considering the constitutionality of the Patent Trial and Appeal Board (PTAB), an administrative tribunal created in 2011 by the America Invents Act that was supposed to help address concerns that patents were being issued to people who didn’t deserve them because their inventions weren’t truly new or that were too broad.

Congress created the Patent Trial and Appeal Board to make it easier to challenge bad patents and crack down on abusive behavior by so-called “patent trolls.”  Unfortunately, the PTAB has become a roving “patent death squad”– a moniker that has amazingly been embraced by the board’s own former chief administrative judge and is an apt description of a tribunal that invalidates upwards of 70% of the patents it considers. It now threatens to destroy the real bridgebuilders along with the trolls.

From a policy perspective, the PTAB has undermined its own goal. Instead of freeing up the innovation economy, it has created a new set of legal procedures that can be abused to extort money from patent owners and invalidate legitimate patents. The result is exactly the opposite of that intended by the America Invents Act: more litigation, less certainty for inventors, and higher costs of innovation.

But the deeper constitutional problem is that the patent tribunal is taking away people’s property without adhering to our constitutional guarantees of due process, and that could have implications for other types of property rights as well. The PTAB is a constitution-free zone without jury trials, with strict limits on the evidence patent owners may present, and where virtually anyone can challenge a patent, opening the door to rampant abuse.  Rather than making the process more efficient, patent owners can now face challenges on two fronts – at both the PTAB and in the courts.  In an amicus brief for the CATO Institute and the American Conservative Union Foundation, Ilya Shapiro and Greg Dolin write that “the PTAB draws power away from the judicial branch in favor of the executive” and makes all decisions by the courts subject to “revision and modification by the executive branch” – raising serious constitutional issues.

For example, President Obama’s Director of the US Patent and Trademark Office has in some cases convened multiple PTAB panels until she got the result she wanted to invalidate a desired patent.  The tribunal has also permitted hedge fund managers to use the administrative process to manipulate the market, short-selling stocks and then filing challenges to induce a drop in stock prices. Challengers can also file repetitive attacks on the same patent, ironically increasing costs to the innovation economy instead of decreasing litigation costs. It’s a one-way ratchet: a win for a patentholder is still subject to repeated attacks, but a win for the challenger is final.

Imagine a world in which the ownership of your home faced the same risk – a disgruntled neighbor, ex-spouse, or frustrated would-be purchaser could attack your ownership rights repeatedly before a judge that views his job as “death-squadding” real estate titles and with procedures that favor the challenger. Such a system would dramatically increase the costs required to maintain one’s home, while the uncertainty clouding any title would lower the value of housing overall. That would be just as damaging to the housing market as it has been for the innovation economy.

The government’s chilling defense of the PTAB system is to claim that they don’t even owe patent owners due process in the first place, because patents are simply grants from the government and not private property. But that argument ignores centuries of history and Supreme Court precedent, and creates the danger of eroding property rights just as surely Kelo did.

The goal of the America Invents Act was a good one, aimed at bolstering the legitimate property rights of patent owners. But in this case the cure is worse than the disease and has created an out of control administrative tribunal that undermines constitutionally protected property rights. If the Supreme Court allows the government to start exempting whole categories of property from constitutional protection, we will all be the poorer for it.​

This Day in Liberal Judicial Activism—November 15

by Ed Whelan

2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

In April 2014, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will reverse the Sixth Circuit by a 6-2 vote.

2015—In Adkins v. City of New York, federal district judge Jed S. Rakoff rules that “transgender people are a so-called ‘quasi-suspect class’” and that governmental treatment of people who identify as transgender must be subject to “intermediate” judicial scrutiny.

Under Rakoff’s approach, he and other federal judges, in the supposed name of the Constitution, would be deciding such matters as whether boys who think they’re girls must be allowed to use the girls’ restrooms, locker rooms, and showers in public schools.