As I write, the United States Supreme Court’s term awaits the release of what will probably be watershed opinions on affirmative action, same-sex marriage, and the Voting Rights Act. These cases will receive — and rightly so — the lion’s share of media attention.

Nevertheless, there are always quieter cases that often starkly illustrate the Court’s divisions in the matter of constitutional interpretation. The June 17 decision in Salinas v. Texas is one such case. What is striking in Salinas is the lesson that the abandonment of adherence to original-understanding issues is mere judicial policymaking of one political stripe or another.

Suspected of murder, Genovevo Salinas had been brought into a police station for questioning. All parties agreed that he was not in custody and no Miranda warning was read. Salinas voluntarily answered police questions about the crime. However, when the police asked him whether ballistics testing would match the shell casings at the murder scene to his shotgun (which he had turned over to the police earlier), Salinas suddenly fell silent.

At the subsequent criminal trial, prosecutors proffered his silence to the shotgun question as evidence of his guilt. Salinas was convicted and sentenced to 20 years. Salinas’s challenge on appeal was predicated on the contention that the Fifth Amendment’s prohibition on self-incrimination means that his silence could not be used against him at trial.

The Court divided predictably on the result in this criminal-procedure case: Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas all joined the judgment to affirm the use of Salinas’s silence at trial. Justices Breyer, Ginsburg, Sotomayor, and Kagan all dissented (with an opinion by Breyer) and would have prohibited Salinas’s silence from being used at trial.

What is really noteworthy was the split between the opinion of Alito for the plurality (including Roberts and Kennedy) and Thomas’s opinion (joined by Scalia) concurring only in the judgment. The source of the split was what to do about Griffin v. California, a 1965 Warren Court excrescence authored by Justice William O. Douglas. Griffin (mis)used the Fifth Amendment and incorporated it to compel every state to follow the rule that no prosecutor or judge could comment on a defendant’s failure to testify at trial.

With his characteristic originalist approach, Thomas wrote that Griffin “lacks foundation in the Constitution’s text, history, or logic” and therefore must not be extended. Thomas noted that Griffin is offensive to both the text and history of the Fifth Amendment. Textually, Thomas observes that a defendant is not compelled to be a witness against himself because a prosecutor points to his failure to testify and says to the jury that an adverse inference may be drawn from that failure. Moreover, the history of the Fifth Amendment contradicts the judicially invented mandate of Griffin. Thomas commented that “at the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so.”

Because of the “indefensible foundation” of Griffin, Thomas and Scalia logically did not extend it to Salinas’s precustodial interview. Of course, Alito, Roberts, and Kennedy declined to extend it, too. The problem is that without grounding in the text and history of the Fifth Amendment, Alito’s opinion is little more than a policy statement that turns on Salinas’s failure to invoke the protection against self-incrimination. In a similar way, the Breyer dissent is nothing more than a policy statement favoring the extension of Griffin to this factual setting. One may agree with Alito’s approach over Breyer’s, but that is fundamentally a policy judgment and not a matter of interpretation.

That is why originalism is so vital to the conservative project of restoring the Constitution. Without a rigorous analysis of the text and history of the constitutional provision, little more than results are at stake. And that is a constitutional jurisprudence that will not endure.

— Gregory J. Sullivan (Gregoryjsull@aol.com) is a lawyer in New Jersey. 

The Spring issue of the indispensable Claremont Review of Books is on its way to subscribers’ mailboxes, and is already online for subscribers (you do subscribe, don’t you?).  The editors have kindly made accessible to all my review of a fine new book by legal historian R. Kent Newmyer, The Treason Trial of Aaron Burr.  A sample of my review:

We may forget that, in [Marshall's] day, a Supreme Court Justice was also a trial judge, “riding circuit” for much of the year, sitting alongside federal district judges to try cases in the circuit courts away from the capital. For the most part, only the closest students of the early Supreme Court have paid much attention to the Justices’ trial-court activities. And admittedly, it is a rare case at the trial level that gives rise to opinions of historic interest. But as R. Kent Newmyer, a professor at the University of Connecticut Law School and one of the best historians of the early republic, shows in his new book, United States v. Burr is that rare case.

Of all the cases on which Marshall sat in his 34 years on the bench, the 1807 treason trial of Aaron Burr in Richmond, Virginia, over which he presided with district judge Cyrus Griffin, consumed more of his time and energy than any other, and prompted more legal opinion writing than any other (some 20 items in the Marshall Papers), including two of his longest, most significant constitutional opinions. In the early 19th century, the Supreme Court convened on the first Monday in February and rarely went far into March before it had disposed of all the cases on its annual docket. (Those were the days!) But in the Richmond circuit court, Marshall was consumed with the Burr case off and on from the end of March to mid-October 1807, with the main treason trial occupying the whole month of August.

If you saw Seth Lipsky’s piece on treason in yesterday’s Wall Street Journal, you may have noticed his mention of an opinion on treason that Marshall gave in a Supreme Court case in 1807.  That case was a mere prelude to the Burr trial, in which Marshall clarified what his earlier Supreme Court opinion had left rather murky.

You can read the rest of my review here.

Today at Public Discourse, I explain why the defense of religious freedom depends on preserving the truth about marriage in our legal order:

Should the truth about marriage—that it unites men and women so that children will have fathers and mothers—be defied by the laws of the land, we cannot expect the religious freedom of those who believe in that ancient truth to be respected under the new dominion of falsehood.

After all, if redefining marriage to include same-sex couples accords with justice and moral truth, there is no good reason for the new legal order to make room for “conscientious” religious dissenters, for clearly their consciences are malformed and unworthy of respect. Thus the fate of religious freedom, for scores of millions of Americans, stands or falls with the fate of conjugal marriage itself.

Read the rest here.

The Center for Equal Opportunity and the Pacific Legal Foundation had urged the Court to grant review in this case, as discussed here, and we’re glad that the Court did so today. It presents the issue — never resolved by the Court — whether a “disparate impact” cause of action may be filed under the Fair Housing Act. 

Such a cause of action alleges “discrimination” based on statistical imbalances, notwithstanding the fact that the challenged practice is nondiscriminatory by its terms, in its intent, and in its application. So, for example, the refusal to rent to convicted felons, or to sell homes to people with poor work histories, or to rent or sell to people with bad credit ratings all can be challenged if there is a disproportionate effect on this or that group, and then the defendant must prove some degree of “necessity” for the practice. The Obama administration loves this approach, but here’s hoping the Court nixes it.

With rulings in the DOMA and Prop 8 cases expected by the end of next week, I’ll highlight here a few of my writings:

“Federalism and Marriage”—my National Review essay explaining that a proper understanding of federalism ought to lead to the conclusion that both DOMA and Prop 8 are constitutionally sound. (I won’t include here my many posts taking issue with those who confusedly claim that federalism concerns cut against DOMA. The interested reader will find a slew of them in my Bench Memos archives from March 5 through April 1 of this year.)

On why Prop 8 proponents have standing (and law professor Vik Amar on the consequences of an adverse ruling on standing)

On the infertile-couple canard

On anti-Prop 8 myths

On Justice Kagan’s bamboozling

My Prop 8 amicus brief on the shenanigans in the lower courts

Senator Orrin Hatch weighs in on President Obama’s D.C. Circuit court-packing plan:

Read the whole thing.

Per SCOTUSblog and How Appealing: The Supreme Court issued rulings in five cases today. None in the most-watched cases, but two or three that might be of general interest, including a 7-2 ruling in Arizona v. Inter Tribal Council of Arizona, Inc. (opinion by Scalia) that Arizona’s requirement that individuals registering to vote provide evidence of citizenship is preempted by the federal National Voter Registration Act of 1993. (I may have more on these rulings later.)

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, include these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

“The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.) 

As it happens, I had a post with exactly this title more than three years ago. The case is the same: a First Amendment challenge to a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic. The pending certiorari petition, filed by law professor Mark Rienzi and lawyers at the Wilmer Cutler law firm, compellingly argues that the First Circuit’s decision upholding the statute mistakenly extends the Supreme Court’s (badly misguided) decision in Hill v. Colorado (2000) and creates a circuit conflict. The petition is slated for the Court’s conference next Thursday.

The Court denied the cert petition from three years ago, but there have been two significant changes since then. First, the previous cert petition was interlocutory. (For non-lawyer readers, that means that the case hadn’t yet reached final judgment.) As a general rule, the Court disfavors interlocutory petitions. The current petition, by contrast, is from the First Circuit’s decision affirming the district court’s final judgment in the case. Second, in 2011, the Ninth Circuit rendered a decision in Hoye v. City of Oakland that invalidated a city’s policy of differential enforcement of a no-approach zone. As the petition spells out, the First Circuit’s ruling squarely conflicts with the Ninth Circuit’s ruling.

Carrie Severino has previously highlighted her amicus brief in support of the petition. I’m also pleased to note an amicus brief filed on behalf of three of my favorite First Amendent scholars, Rick Garnett, Michael Stokes Paulsen, and Eugene Volokh. The amicus brief argues that the Court should grant cert to “place clear limits” on Hill, and it observes that the petitioners’ “free-speech rights [have] tumbled to the bottom of Hill’s slippery slope.”

An alternative reason to grant would be to overturn Hill entirely. As the amicus brief notes, legal scholars “from across a broad ideological spectrum have criticized Hill for ratcheting down standard First Amendment analysis of public-forum speech restrictions”; for example, Laurence Tribe has described Hill as “slam-dunk simple and slam-dunk wrong.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White. In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

I am completely on board with Andrew Kloster (and Gerry Bradley) regarding the utter frivolity of the ethics complaint against Judge Edith Jones regarding some remarks she made recently at Penn about the death penalty.  But I feel compelled to defend another judge, long dead, whom Andrew disparages a bit, namely Chief Justice John Marshall.  Andrew writes:

[J]udges generally recuse themselves from cases where their impartiality might fairly be called into question, based not upon vague ideological or interpretive allegiances but upon hard, factual connection to the case at hand.

To be sure, judges have not always lived up to these high standards. Chief Justice Marshall authored the opinion in the landmark 1803 case of Marbury v. Madison, a case which dealt in part with the actions of the secretary of state under John Adams. Who was this secretary of state? Justice Marshall himself.

To say that Marbury “dealt in part with the actions of the secretary of state” is not precisely true, if by “dealt with” one means that the actions of the secretary formed any part of the case such that the facts regarding those actions were somehow in dispute between the parties, or their legal propriety was part of the controversy, or the person who undertook those actions had any stake in the outcome of Marbury’s case.  The answers to each of these questions were no, no, and no.  It is true that part of the reason Marbury did not have the commission he was suing to get is that the State Department headed by Marshall failed to deliver it before the end of the Adams administration, and the incoming Jefferson administration refused to do its legal duty of delivering it.  This was an unforeseen eventuality for which Marshall could hardly be blamed, and there was no substantive reason for him to recuse himself from the case.  No one on either side of the case thought Marshall had such a duty of recusal, and even Jefferson (who sharply criticized aspects of the Marbury opinion) never claimed as much.  Probably no one for over a century, in fact, ever made the slightest noise about this aspect of the case.

Though it is only the most trivial of a whole raft of wrongheaded complaints about Marbury, it is a commonplace criticism today of Marshall’s conduct that he would have had to recuse himself under today’s norms of judicial ethics (which nobody followed in 1803).  This would be true only on a highly sensitive reading of the “appearance of impropriety” standard, since there was nothing actually improper at all in his sitting on the case.  He had a “hard, factual connection to the case” only in the most innocent and disinterested way, unless one supposes that his presumptive politics–in common with every other Federalist–made him interested.

Still, one could fault Marshall–with a sigh and a shrug before moving on to more serious things–without coming within a country mile of faulting Judge Jones on the basis of the current complaint against her, which is stuff and nonsense all the way down, and right on the surface too.

Judge Edith Jones of the United States Court of Appeals for the Fifth Circuit has, throughout her tenure, been a principled and faithful judge. In fact, she was a potential Supreme Court nominee during the presidency of the first President Bush. Yet, as Gerard Bradley noted last week, this heavyweight judge now finds herself the subject of a frivolous judicial ethics complaint filed by a number of activist groups, including one apparently funded entirely by the Mexican government.

The complaint seeks to censure Judge Jones, cast doubt on her future and past opinions, and possibly even press for her recusal in death-penalty cases. In an effort to shut Judge Jones up, the complaint risks (or perhaps envisions) destabilizing our justice system and radicalizing faithful adherence to the law.

Just what is Judge Jones accused of doing? At a lecture on the death penalty at the University of Pennsylvania School of Law, Judge Jones allegedly expressed skepticism about a variety of criticisms of the death penalty. And although unsubstantiated, since the lecture was not recorded, there are also some allegations that Judge Jones made other comments about statistical differences in criminal behavior among populations.

All too often, calls for censure or recusal are politically motivated. Just yesterday, a special-interest group called on Justice Scalia to recuse himself from a pending voting-rights case, in part based on questions of his at oral argument. Asking for recusal based upon relevant questions asked by a judge in his own proceedings is patently absurd as a legal argument. It is simply political theater.

Yet publicly denouncing a judge is a win-win for activists: If you win the case, you have made your victory appear more remarkable; if you lose, you have made your loss appear nefarious.

Federal judges are bound by statute and internal rules to maintain the highest standards of professional conduct, including avoiding “impropriety and the appearance of impropriety.” Thus federal judges studiously avoid commenting on the specifics of cases before them, or specific cases that might come before them. Further, judges generally recuse themselves from cases where their impartiality might fairly be called into question, based not upon vague ideological or interpretive allegiances but upon hard, factual connection to the case at hand. 

To be sure, judges have not always lived up to these high standards. Chief Justice Marshall authored the opinion in the landmark 1803 case of Marbury v. Madison, a case which dealt in part with the actions of the secretary of state under John Adams. Who was this secretary of state? Justice Marshall himself. More recently, former judges Mark Ciavarella and Michael Conahan of the Luzerne (Pa.) County Court of Common Pleas were convicted in a “Kids for cash” scandal for sentencing juvenile offenders to long sentences without disclosing that they were receiving money from the owners of the facilities where the offenders were sent. That behavior was both illegal and immoral.

Whatever the ethical standard limiting judicial public comment, though, Judge Jones clearly never came close to violating it. There is no transcript of the proceedings, so the complainer’s characterization of her remarks might be false. But even if taken as characterized, the remarks are not at all germane to Judge Jones’ commitment to the laws of the United States. Criticizing the Supreme Court’s jurisprudence does not imply that Judge Jones has any difficulty remaining true to her status as an intermediate court judge.

Rather, the language of the complaint against Judge Jones reiterates the well-worn passive-aggressive heckler’s veto: 

“The whole discussion seemed disrespectful to me.”
“Judge Jones was unapologetic.” 
“I was made uncomfortable by her comments.”

The hypersensitivity, real or feigned, of audience members does not a scandal make.

Two weeks ago, Supreme Court Justice Sonia Sotomayor presided over a reenactment of the 1972 baseball antitrust exemption case, Flood v. Kuhn. She opined that she would have dissented in that case, which remains good law. By all accounts, Justice Sotomayor was engaging and witty throughout the event — yet she opined on a potentially live area of the law. No one could seriously suggest that Justice Sotomayor’s comments prejudice her against organized baseball, or threaten the rule of law. How is this any different from Judge Jones’s case? It isn’t — except that the politics in Judge Jones’s case are toxic, and domestic partisans and a foreign government are apparently willing to bankroll an effort to create a faux scandal.

As long as judges remain engaged in legal education, they will opine on areas of the law that might come before them in court. This is valuable to law students and the general public.

Not valuable are axe-grinding audience members intent on jotting down phrases and feelings to help activist groups file frivolous complaints against judges kind enough to perform this educational service. Such attempts to politicize legal education will simply stifle public legal debate and harm the institutional prestige of places such as the University of Pennsylvania School of Law.

— Andrew Kloster is a legal fellow in the Heritage Foundation’s Edwin Meese Center for Legal and Judicial Studies.

Editor’s Note: This post has been amended since its initial posting.

1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”

Some 17 months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court will summarily reverse the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (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.

Another entrant in the beyond-parody category: If you think that a child who “biologically … was born a boy and retains male genitalia” but who self-identifies as a girl shouldn’t be using the girls’ restroom, then law professor Adam Winkler says, in this New Republic essay, that you favor “acts of discrimination no different from those that prohibited black people from entering white bathrooms until the 1960s.”

According to Winkler, “the next frontier of the civil-rights movement is transgender and transsexual equality, and refusing to “allow transgender people to use the bathroom that corresponds with their gender identity”—in other words, the bathroom that does not correspond with their biological sex—is to violate “our constitutional ideals.”

2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants. 

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

Retired justice Sandra Day O’Connor continues to crusade against state and local judicial elections, this time during a speech last week at Elmhurst College. The Chicago Tribune has more:

[Justice] O’Connor said she opposes the election of judges, and she believes the practice may create a misunderstanding of the role of a judge.

“I think there are many who think of judges as politicians in robes. In many states, that’s what they are,” she said.

This is a favorite talking point of George Soros and his allies, who want to replace judicial elections with the trial-lawyer dominated “merit” selection method. The only problem is the empirical evidence doesn’t support Justice O’Connor’s conclusion. As Professor Chris Bonneau explains: 

There is no evidence that elections cause voters to view judicial institutions as less legitimate. In 2008 and 2009, Washington University professor James Gibson, in a series of survey experiments, found that while particular campaign contributions can lead to legitimacy concerns, there are no such consequences when candidates engage in policy talk, negative ads or other ordinary incidents of a judicial race. Additionally, according to Gibson’s data, the net effects of elections are still positive in terms of public perception of the judiciary.

There is no difference, other things being equal, in the quality of judges who emerge from elections as opposed to appointments. Law professors Stephen Choi, Mitu Gulati and Eric Posner recently found that appointed judges not only do not perform at a higher level than elected judges in terms of opinion quality and output but also that elected judges do not appear to be less independent than appointed judges. The authors were appropriately cautious in interpreting their findings, but any fair reading of their results suggests that elected judges are, at worst, equal to appointed judges in quality and independence.

Professor Bonneau has also found no conclusive evidence to suggest that “justice is for sale” in state judicial elections.    

If anything, Justice O’Connor’s herself has “create[d] a misunderstanding of the role of a judge,” and not only by planting and regularly reiterating her accusations that the many honest judges chosen by elections are somehow tainted by that process. She has also improperly blurred the role of judge and politician by her own involvement in the very political question of judicial selection.

Despite her retirement, Justice O’Connor is still regularly deciding cases as a judge. She sits by designation on the Ninth Circuit Court of Appeals, and has participated in numerous cases since 2006. As a sitting federal judge, she is bound by the Code of Judicial Conduct which, in Canon 5, forbids participation in political activity.

That hasn’t stopped her from getting heavily involved in various political issues by:

Signing onto a letter that proposed a framework for a Middle East peace accord. The letter weighed in on the “vast disparity of power” between Israel and Palestine, and called for Jerusalem to house the capital for both Israel and Palestine. Who knew Justice O’Connor found time on the Court to become a foreign policy expert!
 

Participating in an Iowa conference opposed to judicial elections during that state’s high-profile state retention elections. Justice O’Connor’s participation raised eyebrows among her fellow judges and violated the advice of the Federal Judicial Conference’s Judicial Ethics Committee, as Senior D.C. Circuit Judge Silberman, explained: ”The conference was held at the very time a vote loomed of whether to retain three Iowa supreme court justices who had joined a unanimous opinion holding gay marriage protected by the Iowa constitution.” Justice O’Connor ignored the advice of the federal judiciary’s ethical body, which opined that the event, though allegedly decrying judicial politicization, was itself too political for a federal judge to attend.
 

Endorsing a Nevada ballot measure for judicial merit selection. Justice O’Connor was an honorary co-chairwoman for a campaign to pass the ballot measure, and even recorded a robo-call and web-video in favor of the measure.

If anything represents an assault on judicial independence, it is direct involvement in political campaigns and initiatives by a sitting judge — the precise type of behavior Justice O’Connor has engaged in.

But what might be even more detrimental to public confidence in the judicial branch is a retired Supreme Court justice, who is actively deciding cases, traveling around the country accusing the nation’s elected judges of being for sale. 

It’s not just empirically wrong, it’s hypocritical.

A few days ago the Washington Post’s fact-checker, Glenn Kessler, weighed in on President Obama’s assertion that his “judicial nominees have waited three times longer to receive confirmation votes than those of my Republican predecessor.” To his credit, Kessler gave the president ”two Pinocchios” for the claim, confirming my colleague Ammon’s previous analysis showing that President Obama’s appellate nominees are actually moving at a faster pace than his Republican predecessor’s.

One of the other lies we are likely to hear more as the D.C. Circuit fight intensifies is that Republicans are violating the terms of the long-expired “Gang of 14″ agreement, meant to avoid filibusters of judicial nominees. Last month, Senator Whitehouse pushed this argument (see 52:00 of this clip), saying that Caitlin Halligan’s nomination, currently filibustered, did not represent the “extraordinary circumstances” under which the agreement said senators could block nominees. According to Senator Schumer, the blocking of Halligan’s nomination “represented the demise of the Gang of 14 agreement that this Senate had operated under the last few years.”

The Whitehouse/Schumer argument has two fatal flaws:

1. By its own terms, the Gang’s agreement represented “an understanding among the signatories,” during the 109th Congress, not the entire U.S. Senate forevermore. Eight years later, only five senators remain from the defunct Gang (including just three Republicans), but, now that it suits their purposes, Democrats are trying to resurrect the agreement and impose it on all minority senators.

2. Further, Senate Democrats never stood by its terms when it was in place. For instance, Democratic senator Daniel Inouye voted to filibuster Brett Kavanaugh’s 2006 nomination to the D.C. Circuit.

Even if its terms had applied to later Congresses (as some have suggested), everyone in the Gang of 14 certainly did not seem to think so: Senator Mary Landrieu voted to filibuster Leslie Southwick’s nomination to the Fifth Circuit in 2007. And that seems to have represented the common understanding among Senate Democrats at the time: Twenty-five of them (including Senator Obama) voted to filibuster Justice Alito’s nomination, another 35 did so for Judge Southwick’s nomination, and 30 voted to filibuster Judge Kavanaugh’s nomination. Senators Reid, Durbin, and Leahy supported these filibusters every step of the way. 

Did these nominations represent “extraordinary circumstances”? If so, what were they? It could not have been that the American Bar Association questioned their qualifications, since each received either a “qualified” or “well qualified” rating.

Senate Democrats have given absolutely no reason for anyone to believe that they would ever treat Republican nominees fairly; instead, they’re just asking for Republicans to unilaterally disarm in the face of President Obama’s efforts to turn the D.C. Circuit into a partisan rubber stamp. As I argued in USA Today last week:

The [D.C. Circuit] issues some of the most significant cases, including many involving the constitutional validity of actions taken by the president and federal agencies. That role has recently subjected the court to intense criticism from Democrats, who are angry that the court (now balanced 4-4) has been enforcing constitutional limits on President Obama’s agenda.

In August, the court struck down an unlawful EPA regulation that would have forced energy companies to lay off workers and increase electricity costs. More recently, the court ruled that President Obama’s attempt to circumvent the U.S. Senate with his appointments to the National Labor Relations Board “eviscerate[d] the Constitution’s separation of powers” and “demolish[ed] checks and balances.” Unhappy with these rulings, Democrats are now angling to fill the D.C. Circuit with ideological cronies if that is what it takes to rubber-stamp President Obama’s agenda.

Senate Republicans aren’t taking the bait, and they shouldn’t.

1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982. The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled.And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

1968—What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood (in his own words) as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds? In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds.