Bench Memos

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This Day in Liberal Judicial Activism—April 18


1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge 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 disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns 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.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble. 

Obama’s “Authenticity”


From a long New York Times magazine article by Jo Becker on President Obama’s reversal of the public position on marriage that he adopted during the 2008 campaign:

Caught between countervailing political forces, Obama called his top aides together and said that if asked again for his position, he both wanted and needed to drop the pretense and tell people where he really stood.

“The politics of authenticity — not just the politics, but his own sense of authenticity — required that he finally step forward,” [David] Axelrod said. “And the president understood that.”

But if he was really contemplating an endorsement of same-sex marriage, his advisers urged him to do it in a manner that caused minimal political damage. 

Gee, that’s some “authenticity.”


This Day in Liberal Judicial Activism—April 17


2009—Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Assocation—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat.

Federalist Society Conference on Executive Branch Review


On May 7, the Federalist Society will be holding its second annual Executive Branch Review conference in D.C. The conference schedule is packed with interesting panels and speakers—including a lunchtime panel on “Executive Power and the Role of the Coordinate Branches—and closes with a keynote address by Senator Ted Cruz.

Attendance is free, and CLE credits are also available (for a $50 charge). So sign up now if you’re interested.

This Day in Liberal Judicial Activism—April 16


2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.”


Pregnant Women’s Rights Must Be Fully Protected by the Criminal Law


Recent media misinformation, perhaps deliberate on the part of left-leaning commentators, currently casts a cloud over efforts to give women more protection when they are forced to defend themselves and their unborn children.

Imagine being pregnant with quadruplets and having your babies’ father viciously punch you in the stomach during an argument. You remind him that you are carrying his children and warn him not to punch you in the stomach again. Tragically, he doesn’t heed your warning and instead comes at you. Fearing for your children, you grab a knife and stab him. He later dies, and you are charged with homicide.

At your criminal trial, you want to argue to the jury that your actions were legally justified because you were acting in defense of your unborn children. However, the judge determines that state law does not permit you to make that argument, and you are ultimately convicted and sentenced to prison.

This is not just a hypothetical. It actually happened to a Michigan woman in 1999. Her conviction was later reversed when an appellate court determined that Michigan law did, in fact, permit a woman to use force in defense of her unborn child.

Notably, this was the first time a court had extended the “defense of others” theory to the defense of an unborn child. Courts in Texas and Illinois had previously refused to do so, despite the significant and ongoing problem of pregnancy-related violence including violence specifically directed toward unborn children.

Each year, thousands of cases of unlawful violence against pregnant women and their unborn children are reported. These incidents continue to underscore the urgent need to ensure that our criminal laws protect both the woman and her unborn child, and that they also affirmatively provide legal protection to a woman who must resort to force in defense of her unborn child.

The Pregnant Woman’s Protection Act, model legislation developed in 2008 by Americans United for Life, is designed to amend a state’s existing criminal code and provides that a woman may use force — even deadly force — to defend her unborn child from unlawful violence or a criminal attack.

Attempts by some in the media to distort the intent and impact of the Pregnant Woman’s Protection Act and to smear Americans United for Life as encouraging violence against abortion providers represent thinly veiled, politically motivated attacks that blatantly ignore the stated intent of the model legislation. The legislation is intended simply to ensure that a pregnant woman and her unborn child are protected from unlawful criminal violence and that a woman’s decision to carry her child to term is respected. They also reveal a fundamental — and perhaps willful — misunderstanding of the express terms of the Pregnant Woman’s Protection Act, the scope and application of criminal law, and the purposes and intent behind this model language.

Keep reading this post . . .

Nevada Secretary of State Ross Miller: Working To Silence His Critics (For You!)


The Left’s feverish national battle to silence its critics is escalating in Nevada. Attorney General candidate Ross Miller recently solemnly vowed to attack a conservative advocacy group, the State Government Leadership Foundation (SGLF), after it dared to call him out for living the high life:

Miller, who as secretary of state is Nevada’s chief elections official, last month threatened to pursue “every legal option” to force SGLF to disclose its donors. The group’s ad and its website attack Miller, the state AG candidate, for freebies he has amassed while in office. “I will continue to review every legal option to compel this front group to reveal its special-interest donors,” Miller said in March. Miller was upset about the foundation’s $500,000 campaign that, in part, exposes the secretary of state for taking $60,000 in gifts from a variety of donors, many of them corporate contributors.

Miller appears to have already started attacking SGLF. A left-wing organization run by Miller’s former deputy, Matt Griffin, filed an election complaint against SGLF about ten days after Miller made his public threats. But Miller is the chief elections official in Nevada. Aside from the clear conflict of interest and the fact that Miller has already pre-judged the issue, Miller’s threats make this situation particularly dangerous to free speech. I’m getting shivers just thinking about the chilling effects.

But what does SGLF’s oh-so-nefarious issue ad actually say?

“He lives the life. You pay the tab. Tell Ross Miller to stop living the high-life at your expense,” urges the SGLF issue ad. That message is accompanied by pictures of Miller posing with ear-biting former boxing champ Mike Tyson and a curvy Playboy playmate, and attending glitzy celebrity receptions.

Thankfully, SGLF is fighting back with its own disclosure request:

The foundation has filed an open records request with the secretary of state’s office seeking copies of all public records of the official calendar and the daily schedule of Miller between March 21, 2013, and March 27, 2014. The group wants emails regarding the mention or discussion of SGLF by Miller or his staff, and any records related to the Miller’s use of state-issued equipment, including cell phones, bill records of such phones, text messages, or any pictures stored, between March 1 and March 27. SGLF also has requested all communication between Miller and his former deputy of elections, as well as communication between Griffin and Miller’s staff.

Unlike Miller’s attempt to obtain membership lists through the electoral complaint system, however, SGLF’s request is lawful. Ross Miller must have taken the same First Amendment class as Lois Lerner and Richard Nixon.

Waiting for Schuette v. BAMN


As the Supreme Court justices put the finishing touches on their decision in Schuette v. BAMN, one hopes that they are not too busy to read a couple of news stories. In Schuette, it is being argued that a Michigan ballot initiative banning, among other things, racial preferences in university admissions ought to be struck down as anti-minority. And yet, in California, the SCA 5 legislative effort to repeal the ban there on racial preferences in university admissions was recently withdrawn because of pressure from a racial minority, namely Asians. 

The takeaway, of course, is that racial preferences are (increasingly) unworkable and untenable in a society that is (increasingly) multiracial and multiethnic. And we have learned that, duh, maybe banning racial preferences and discrimination is not so “anti-minority” after all.

And another thing: After the SCA 5 effort was derailed, the response of some African-American and Latino state legislators was to block an up-until-then uncontroversial bill being pushed by, you guessed it, an Asian-American legislator. Which shows why the federal Constitution takes race off the table for regular politics, and why states ought to do so as well. The supporters of SCA 5, in other words, are — ironically — making the case for why anti-preference ballot initiatives are wise.

The justices can add all this to the other reasons for upholding the state’s ban discussed earlier here.

Halbig v. Sebelius: Making States an Offer They Can’t Refuse


The IRS and its defenders in Halbig v. Sebelius, one of several cases challenging IRS’s interpretation of the Affordable Care Act, have raised questions about whether Congress really meant to deny tax subsidies to taxpayers if their states didn’t set up insurance exchanges. As we shall see, this was one of several mechanisms to “encourage” states to set up exchanges by threatening their residents with the loss of benefits if they didn’t join the party.

The central issue in Halbig, you’ll recall, is whether insurance plan tax subsidies established under 26 U.S.C. § 36B apply only to plans purchased on an exchange “established by the State,” as the statute says, or whether the subsidies also go to plans purchased on a federally-established exchange. The IRS issued a regulation taking the latter point of view, roughly doubling the number of states in which plans will receive subsidies. After the plaintiffs brought suit, the trial court refused to strike down an IRS regulation that relies on the interpretation, so the case is now before a D.C. Circuit appeals panel.

At oral argument in March, the majority seemed to be leaning in favor of the challengers. Judge Edwards, a Carter appointee, by contrast, seemed firmly against the challengers’ position. The challengers’ attorney, Michael Carvin, argued that the text, structure, and legislative history of the ACA supported the plain meaning, while Stuart Delery, the DOJ lawyer defending the regulation, at one point argued that the court should construe the statute in accordance with the purpose stated in its title: to make care affordable.

Let’s assume for the moment that finding the general purpose of a vast, convoluted statute like the ACA resolves a significant portion of the interpretive questions. What evidence is there that Congress purposely constructed the tax subsidies so they would not go to residents of states that declined to set up exchanges?

Quite a lot, as it turns out. First, let’s revisit how the tax subsidy works. The ACA applies tax penalties to certain individuals who don’t have health insurance or purchase it on an exchange. For individuals who purchase insurance on an exchange, the ACA applies a variable tax subsidy which is supposed to make insurance plans more affordable. According to Section 36B of the Internal Revenue Code, the subsidy goes to qualified health plans that were “enrolled in through an Exchange established by the State under [Section] 1311” of the ACA. Section 1311 (codified at 42 U.S.C. § 18031) sets out procedures for a state to set up its own exchange, whereas a different section (Section 1321, codified at 42 U.S.C. § 18041) sets out procedures for the federal government to set up an exchange.

Generally speaking, it’s clear that the ACA intended states to play an integral role in carrying out the ACA and was not shy about saying so. The ACA explicitly directs that states “shall” set up exchanges, even though this mandate would not be enforceable in light of anticommandeering doctrines established in Printz v. United States and New York v. United States. The ACA also uses carrots and sticks, such as funding cutoffs and startup funds, as financial incentives for states to set up their own exchanges. In other portions of the ACA, the ACA applied punitive measures to states that refused to get with the program: Congress initially tried to secure expansion of state Medicaid programs by conditioning Medicaid funding on each state’s expansion of its Medicaid program. This, the Supreme Court held in NFIB v. Sebelius, was an unconstitutionally coercive “gun to the head.”

Think for a moment about how the Medicaid expansion incentives would have worked. Medicaid funds do not go to state treasuries for general purposes, but are rather used for the state Medicaid program’s services, training, and administration. If the federal government suddenly turned off the funding spigot (which averages 57% of state program funding), the state would be forced to scale back its programs. This effectively increases pressure on the state officials to do whatever is necessary to restore federal money, so as to avoid accusations that they were selling out their poor citizens, public employees, and so forth. Fundamentally, then, financial pressure from the federal government was supposed to produce a political response by the officials of the targeted states, and if all else fails, by the people of the state. That, of course, is coercion. You can almost hear Tony Soprano saying, “Say, that’s a nice Medicaid program you got there. It’d be a shame if anything happened to it.” 

As it turns out, the same sort of maneuver also appears in 26 U.S.C. § 36B(f)(3), which sets out a seemingly innocuous reporting requirement. This provision, added in the reconciliation bill that Congress used to dodge the Origination Clause, requires state and federal exchanges to tell each purchaser how much they are paying in premiums and how much (or how little) they are receiving in subsidies. There are several legitimate functions of this provision, such as allowing HHS to collect data about how the program is working.

But it just so happens that the reporting requirement also gives HHS the opportunity to appeal directly to citizens of non-cooperating states. Although more subtle than the unconstitutional Medicaid expansion, (f)(3)’s reporting requirement is both stick and carrot. In states that declined to set up exchanges (and thus blocked the tax subsidies), the federal exchange would send a letter to residents of the state telling them how much their insurance costs ((f)(3)(B)), that the subsidy is zero ((f)(3)(C)), and that, by the way, state officials can trigger the subsidy by opting into the ACA ((f)(3)(E)). Judge Randolph picked up on this issue during oral argument (at 1:18:55), construing the reporting requirement primarily as a stick:

The report [under Section 36B(f)(3)] goes to the Secretary of the Treasury, but it also goes to each individual citizen, and in the states that have federal exchanges those people are going to get reports from the federal government saying that your subsidy, we’re afraid, is zero. And that puts tremendous political pressure it seems to me on the governors and the state legislators in those states who haven’t set [up] exchanges.

Professor Jonathan Adler and Michael Cannon interpret the incentive as a carrot:

[A]pplying these reporting requirements to federal Exchanges enables those Exchanges and the Treasury Secretary to notify individual taxpayers of the tax credits for which they would become eligible and to publicize to state officials the number of taxpayers who would benefit if the state were to establish its own Exchange.

Ironically, the IRS is relying on the reporting requirement to argue that Congress meant tax credits to be available on both federal and state exchanges. But the reporting requirement was added in the reconciliation bill, which was a separate piece of legislation. And allowing tax subsidies on federal exchanges would actually undermine Congress’s intention to punish noncomplying states.

As a side note, this is yet another reminder that broad purposivism doesn’t really make sense for complicated statutes like the ACA. It is Congress, not the President or the courts, that makes choices about means and ends. Yet when judges use a general purpose (like affordability) as a justification to override a specific purpose that is identified clearly in a statute, they are effectively privileging their own general preference for how the statute should work over how Congress specifically said it must work. That approach is not only highly manipulable, but undermines democratic self-government. It’s not the courts’ job to save Congress from itself, even when its legislation is unnecessarily punitive or fails to accomplish its stated goals.

This Day in Liberal Judicial Activism—April 14


1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”

This Day in Liberal Judicial Activism—April 13


2001—Judge Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman. The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.” Barkett asserts that the district court injunction properly barred “public student prayer”.

This Day in Liberal Judicial Activism—April 12


1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Justice Alito Talking Baseball


Now that the Washington Nationals are off to a strong 7-2 start, I’ll briefly indulge my passion for baseball by noting that Justice Alito will be taking part in a May 30 lunch event in D.C. titled “Let’s Talk Baseball.” Also taking part in the panel discussion will be New York Times columnist David Brooks and ESPN’s Tim Kurkjian. Dallas attorney Talmage Boston, who has written two books on baseball, will moderate. (Unfortunately, tickets to the event cost $80.)

Speaking of baseball: There’s always been a special affinity between baseball and math, so you can add to the list of great names of ballplayers Arquimedes Euclides Caminero. Yes, Archimedes Euclid. Arquimedes, who hails from the Dominican Republic, is the youngest of eight siblings, and his father reportedly drew inspiration from an algebra book in naming him. (Whatever knowledge of spheres and geometry Caminero might have acquired from Archimedes and Euclid didn’t help him much yesterday, as he gave up a grand slam to the Nats’ Ian Desmond.)

Friedland Nomination Moves Forward


Today the Senate voted 56-41 in favor of cloture on the nomination of Michelle Friedland to an open seat on the U.S. Court of Appeals for the Ninth Circuit. Although the Senate is scheduled to go into recess, Majority Leader Harry Reid has threatened to keep the Senate in session until a final vote on her nomination.

Our EEOC in Action


In a unanimous ruling today (in Equal Employment Opportunity Comm’n v. Kaplan Higher Education Corp.), a Sixth Circuit panel rejected the EEOC’s claim that an educational institution’s use of credit checks for job applicants had a disparate impact in violation of federal law.

As the opinion notes, “the EEOC sued the [institution] for using the same type of background check that the EEOC uses,” and the institution used that check in order to help ensure that its employees complied with Department of Education regulations limiting access to students’ financial information.

On the merits of the disparate-impact claim, the opinion sums up the EEOC’s woeful failure to meet its burden:

The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.

I’ll note that liberal icon Damon Keith was part of the unanimous panel; that’s further indication of how far afield the EEOC wandered.

The Financial Burden of Substantial Burden


Ed recently linked to a piece by law professor and Religion Clause expert Michael McConnell, who blogged at the Volokh Conspiracy about the Hobby Lobby arguments a couple of weeks ago. In the piece, Professor McConnell explains why Hobby Lobby’s religious exercise would be substantially burdened by forcing it to drop coverage, even if doing so would save the company money. Clearly, religious adherents do many things that are not profit-maximizing, so assuming that they always act in a profit-maximizing way is simply wrong.

Moreover, there is no information about the cost differential in the record, and it would be highly inappropriate for the court to speculate on such an important issue. Even if there were some way to come up with accurate average costs of health insurance, average costs say nothing about what Hobby Lobby contributes for its own employees’ health care. Nor is it reasonable to assume that all Hobby Lobby employees get subsidies. If these were serious issues, the government would have sought to make its record in the lower courts. 

McConnell also makes the important point that Hobby Lobby was providing generous health insurance and wages long before the phrase “Affordable Care Act” touched paper in Congress. Forcing Hobby Lobby to drop health coverage burdens their religious exercise because their religious beliefs require them to provide generous benefits to employees. All that’s required is that Hobby Lobby have a sincerely-held religious belief and that the government’s policy put substantial pressure on it to act against those beliefs. This has been unambiguous statutory law under RFRA for 20 years and clear Supreme Court precedent for more than 30 years, since Thomas v. Review Board of Indiana Employment Security Division. Religious adherents don’t have to get a “pastor’s note” to meet this legal standard. Nor do they have to show that violating a religious duty would be a “go to Hell immediately” sin (which would be a problem for religions that don’t believe in Hell). This is because no court is competent to judge a religious person’s theology (although some judges seem to think they are).  

This Day in Liberal Judicial Activism—April 8


2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.

McCutcheon v. FEC: The ‘Appearance of Corruption’


The Supreme Court’s Wednesday opinion in McCutcheon v. FEC striking down aggregate political contribution limits has thus far been accused of a wide variety of sins, including that it opens the floodgates to “corruption.” Although it’s likely that anything short of a total vindication of pervasive contribution limits would have failed to satisfy the Left, Justice Breyer’s dissent took a more precise approach, criticizing the majority for failing to expand the definition of “corruption” to “influence over or access to” elected officials. Let’s see if this criticism is justified.

McCutcheon struck down aggregate limits on campaign donations, but left intact per-campaign donation limits (“base limits”) that cap the amount that a particular donor can direct to a particular candidate. In this case, for instance, Shaun McCutcheon brought suit because he wanted to give the symbolically significant amount of $1,776, less than the base limits, to multiple independent campaigns. The aggregate limits, however, capped the number of campaigns to which he could contribute this amount. As a practical matter, aggregate limits imposed a limit on the number of campaigns that he could meaningfully support.

Although the government offered several interests supporting this limitation, the plurality opinion argues that the only constitutionally permissible governmental interest served by donation limits is actual or apparent quid pro quo corruption, that is, the actual or apparent exchanging of direct contributions for control of the officeholder’s official duties. Thus, individual donation limits are themselves a prophylactic measure for achieving this governmental interest.

Justice Breyer’s dissent takes issue with this proposition, beginning with what we might call the Justice Breyer Theory of Political Speech. Breyer argues that the purpose of speech is to “secure government action.” This portion of Justice Breyer’s opinion is nothing if not abstract, although it does occasionally make reference to actual case law. Citing a series of Progressive-era cases, Justice Breyer’s dissent suggests that the purpose of freedom of speech under the First Amendment is to permit the people to engage in unimpeded “collective speech” with their representatives, and that the “appearance of corruption” arises when the public believes that its “efforts to communicate with its representatives or to help sway public opinion have little purpose,” ultimately resulting in a loss of interest in political participation and loss of faith in those who govern.

Now, one might assume that Justice Breyer would simply rely on these broad propositions to articulate a broad definition of “corruption,” but he doesn’t. Instead, he draws a circle: governmental interests in preventing “corruption,” defined as hindrances to electoral speech, are actually based on the First Amendment itself. Indeed, Justice Breyer argues, campaign-finance laws are not only a potential violation of the First Amendment, they are actually necessary to strengthen it. Thus, Justice Breyer manages to pit the First Amendment against itself, raising the “potential for conflict” (his words) between diametrically-opposed priorities that ostensibly come from the same source. If this isn’t moving the constitutional goalposts, I don’t know what is.

The rest of Justice Breyer’s dissent is predictable, combining vague definitions of “corruption” with a series of hypothetical means of creating “undue influence.” Justice Breyer notes prior case law describing corruption as including “undue influence on an officeholder’s judgment,” whatever that is, and “privileged access to and pernicious influence upon” elected officials. He also identifies a series of hypothetical donations that, he says, illustrate the opportunities for nefarious political activities.

But the dissent inadvertently makes one thing clear: Under the broad definition of “corruption,” there is virtually no way to distinguish between influence, gratitude, or the conduct that Breyer considers “corruption.” As a result, Breyer’s hypotheticals conflate support for a political party or movement with official corruption. If that’s what corruption means, then Breyer’s view would impose essentially no limits on the government’s ability to regulate the political activities of those that it deems too powerful. The plurality rightly notes that the First Amendment requires any ambiguities to be resolved in favor of more speech, not less.

Breyer’s view constitutes a dangerous weakening of the commonsense principle that, in freedom of speech cases, the threat of oppression comes from government, not speech itself. For Breyer’s abstract theory to resist degeneration into practical tyranny, campaign-finance regulators would need to be perfectly nonpartisan, immune from political pressure, and incapable of misunderstanding the messiness of politics. And that’s absurd.

Supreme Court Turns Down Elane Photography Case


Sadly, the U.S. Supreme Court declined today to hear the Elane Photography case, which concerned a New Mexico photographer who declined to shoot a same-sex commitment ceremony because of her beliefs defining marriage as one man and one woman. But it is far from the end of the line for the central issues involved in this case.

One of the women in the ceremony, Vanessa Willock, filed a complaint, and the New Mexico Human Rights Commission found Elane Photography guilty of “sexual orientation discrimination.” Elane Photography, represented by attorneys from Alliance Defending Freedom, argued that the First Amendment’s compelled speech doctrine protected the photographer from being forced to create expression she did not agree with. The New Mexico Supreme Court rejected this argument and basically concluded that business owners and professionals surrender their First Amendment rights when they enter the marketplace. Ominously, and with an Orwellian twist, Justice Richard Bosson wrote in a concurring opinion against Elane Photography that “the sense of respect we owe others, whether or not we believe as they do . . . it is the price of citizenship.”

This issue likely will return for a definite ruling from the Supreme Court in the future. It is important to note that the Supreme Court did not “uphold” the repressive decision of the New Mexico Supreme Court but merely decided not to hear the case. We don’t know why, but this is not an affirmance of the lower court opinion. The high court’s decision today sets no legal precedent. There are other cases now in the pipeline and probably more to follow that will likely reach the Supreme Court. We had strong amicus support in this case from Professor Eugene Volokh of UCLA and from the Cato Institute, which means the important First Amendment issues in this case will likely come before the Supreme Court again.

Today’s actions by the Supreme Court may unfortunately embolden some to expand their efforts to punish and humiliate publicly those who believe marriage is defined only as one man and one woman. The zealous followers of this ascendant orthodoxy supporting same-sex marriage are falling into the same error that many have stumbled into before them—when you gain power somewhere, punish the “heretics” and hound them to the outskirts of society. As a First Amendment attorney, I am concerned that this dark time of viewpoint suppression will get darker before it gets better. Our Founding Fathers gave us the First Amendment to protect people’s freedom of expression and freedom of conscience from these emotional spasms of government coercion. All Americans ought to see this growing threat to our liberty and our First Amendment traditions and speak against it. That is the true “price of citizenship.”

— Jordan Lorence is senior counsel with Alliance Defending Freedom

Marriage, Race, and Sex


The Heritage Foundation’s Ryan Anderson has an excellent paper exposing the folly of the widespread assertion that laws defining marriage as the union of man and woman are like laws banning interracial marriage:

Great thinkers throughout human history—and from every political community up until the year 2000—thought it reasonable to view marriage as the union of male and female, husband and wife, mother and father. Indeed, support for marriage as the union of man and woman has been a near human universal. The argument over redefining marriage to include same-sex relationships is one over the nature of marriage. Same-sex marriage is the result of revisionism in historical reasoning about marriage.

Bans on interracial marriage and Jim Crow laws, by contrast, were aspects of a much larger insidious movement that denied the fundamental equality and dignity of all human beings and forcibly segregated citizens. When these interracial marriage bans first arose in the American colonies, they were inconsistent not only with the common law inherited from England, but also with the customs of prior world history, which had not banned interracial marriage. These bans were based not on reason, but on prejudiced ideas about race that emerged in the modern period and that refused to regard all human beings as equal. This led to revisionist, unreasonable conclusions about marriage policy. Thinking that marriage has anything at all to do with race is unreasonable, and as a historical matter, few great thinkers ever suggested that it did.

The male-female nature of marriage is intrinsic to the perennial understanding of marriage:

Marriage is the institution that different cultures and societies across time and place developed to maximize the likelihood that a man would commit to a woman and that the two of them would then take responsibility for protecting, nurturing, and educating any children that they may create.

Far from having been devised as a pretext for excluding same-sex relationships—as some now charge—marriage as the union of husband and wife arose in many places over several centuries entirely independent of and well before any debates about same-sex relationships. Indeed, it arose in cultures that had no concept of sexual orientation and in some that fully accepted homoeroticism and even took it for granted.

By contrast, “Bans on interracial marriage had nothing to do with the nature of marriage and everything to do with denying dignity and equality before the law.”

Political grandstanding aside, I have to doubt that there are many people who genuinely believe that laws defining marriage as the union of man and woman are like laws banning interracial marriage. To anyone who purports to believe that, I would ask: Did you enthusiastically vote for Barack Obama in 2008 (when he maintained that he opposed redefining marriage)? If so, is it conceivable that you would enthusiastically vote for someone who said that he supports laws banning interracial marriage (even if you believed he didn’t really mean it)?


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