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Re: White House Misdirection on Executive Powers


I missed Jonathan Adler’s excellent earlier post on the same topic. As he sums it up:

[T]he real objections to the President’s use of executive authority are not to the frequency of EOs [executive orders], signing statements, or regulations, but to the substance of specific actions and decisions that have been made.…

[T]hose responding to claims of executive overreach should actually respond to allegations of executive overreach. Pointing to pretty charts about the number of EOs is not a serious or substantive response.

The Case Against Rehearing En Banc in Halbig


In today’s Wall Street Journal, Adam J. White has an excellent op-ed (subscriber-only, I think) arguing that the recent D.C. Circuit panel decision on Obamacare exchange subsidies in Halbig v. Burwell doesn’t meet the D.C. Circuit’s very high standard for en banc review. His closing paragraph:

Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality. The controversy surrounding HHS’s federal exchanges should be resolved promptly by the Supreme Court. There’s no need to tarry any longer at the D.C. Circuit. 


White House Misdirection on Executive Powers


President Obama’s aggressive use or abuse of his executive powers is arousing intense controversy. On the Washington Post’s Monkey Cage blog, Bowdoin politics professor Andrew Rudalevige explains very clearly how the White House’s primary line of defense—that Obama has issued fewer executive orders than most of his recent predecessors—is an exercise in misdirection. Executive orders, after all, are merely one type of presidential directive, whereas the controversy

is about executive actions more broadly. While Obama issued only 20 executive orders in 2013 (the lowest single-year total in more than a century), that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential “determinations” designed to serve as the basis for bureaucratic behavior.

And there are lots of other avenues for that. We could include regulatory action, signing statements, legal interpretations, and administrative orders technically issued by department heads but at the behest of the White House.  

Rudalevige then runs through “a few of the greatest hits [eight, actually] touted by those who feel Obama has abused his executive authority” and points out that none involved Obama’s use of a formal executive order. (H/t Jonah Goldberg.)

No, Chris Christie’s Judicial Nominees Were Not Conservative


As frequent Bench Memos readers will know, I’ve long been following Governor Christie’s judicial misadventures.  I and my colleagues at JCN were encouraged by his campaign pledges to remake the New Jersey judiciary and nominate judges who would “interpret laws and the Constitution, not legislate from the bench.” But his subsequent failure to make good on these promises has been at best profoundly incompetent and at worst a dishonest sellout of the judiciary to advance his personal political goals.  That’s why we launched and have been highlighting his judicial record in TV, radio, and digital ads.

The campaign has garnered significant press attention, interfering with Christie’s post-scandal comeback campaign. So Christie has finally responded, calling JCN “cowards” and accusing us of not supporting his conservative nominees.

Governor Christie is indeed back. Back to his old form of name-calling and bullying when cornered.

In this case we can add un-informed bullying.

JCN actually gave qualified support to his first nominee Anne Patterson based primarily on assurances about her judicial philosophy from the governor’s office. We haven’t made that mistake again. That is not cowardice, that is conscience.

So, yes, we haven’t supported the cronies and hacks he has put forth as judicial conservatives — and which he still claims were conservative nominees.

We urge the governor to criss-cross the country defending his “conservative” nominee Bruce Harris who had to admit he had hardly ever stepped into a courtroom, but whose shrewd legal mind had concluded opposition to same-sex marriage was equivalent to slavery and segregation.

Governor Christie’s support of Sonia Sotomayor — and his dismissive attitude toward those who opposed her — should be sufficient evidence of where his constitutional compass points.

Or perhaps that’s just a weathervane.






Misapplying McCullen v. Coakley


In the Court’s recent ruling in McCullen v. Coakley, all nine justices agreed that the Massachusetts statute that created a general no-speech zone on public streets and sidewalks within 35 feet of an abortion clinic violated the First Amendment.

Although the justices divided sharply, 5-4, on their reasoning, all agreed that the effect of the statute on speech on public streets and sidewalks was critical to their analysis. Chief Justice Roberts’s majority opinion (joined by the four liberals) emphasized that “public streets and sidewalks” are “traditional public fora”—“areas that have historically been open to the public for speech activities”—and that the “government’s ability to restrict speech in such locations is ‘very limited.’” Justice Scalia’s concurrence similarly emphasized that public streets and sidewalks “are traditional forums for speech on matters of public concern” and thus “‘hold a special position in terms of First Amendment protection.’”

Evidently missing this critical point, a state judge in North Carolina has reportedly purported to apply McCullen to protect persons arrested for protesting inside North Carolina’s legislative building. But there is nothing in the news report about the ruling that would remotely suggest that the inside of North Carolina’s legislative building would qualify as a full-fledged traditional public forum. And it would be surprising indeed if there has historically been unrestricted public access to that building for speech activities.


This Day in Liberal Judicial Activism—August 4


1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine.

Disputing or disproving Douglas’s assessment that collective action by the justices is impossible during the recess, the Court, in an order written by Justice Marshall and agreed to by the seven other justices, overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.”

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court.

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses.

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition.

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself.

This Day in Liberal Judicial Activism—August 3


1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee.

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Secret Rehnquist Lunch with Bush 43 Disclosed


Here’s a revelation: Ten years ago, when rumors about Chief Justice Rehnquist’s declining health and possible retirement were circulating, President George W. Bush invited Rehnquist to the White House for lunch and Rehnquist accepted. At the lunch, Bush and Rehnquist discussed the Court. Asked why Bush invited him, Rehnquist replied:

Maybe to talk about the court. Maybe because he likes me. I like him.

Actually, I’m making this up. Had anything like that happened, there would have been a massive media outcry. Together with the secret lunch, Rehnquist’s hypothetical statement that he likes Bush would have been cited as cause for his recusal in cases important to the president. Knowing that any such lunch would invite intense media examination and calls for investigation, the Bush White House never would have contemplated the lunch. (President Bush did invite all the justices and their spouses to a dinner near the end of his presidency.)

It turns out, though—as I’ve learned from this article in which reporter Joan Biskupic recounts her recent interview with Justice Ginsburg—that President Obama and Ginsburg had lunch at the White House last summer, that they talked about the Court, and that Ginsburg offered the explanation I quote above (including “I like him”). Don’t hold your breath waiting for the media outcry.

Let me hasten to add that I don’t have clearly in mind where the ethical line ought to be drawn on contacts between the president and a Supreme Court justice, and I am not contending that there was anything improper about the lunch. But I do think that the ethical line ought to be the same for Democratic presidents and liberal justices as it is for Republican presidents and conservative justices. 

Ginsburg’s Hobby Lobby Gaffes


Let’s set aside the legal errors that pervade Justice Ginsburg’s dissent in Hobby Lobby and focus only on her public misstatements about the case: Ginsburg bizarrely asserts that her dissent “really didn’t turn on the difference between a corporation and a sole proprietorship.” She mischaracterizes (see second paragraph here) the majority’s opinion as resting on the Free Exercise Clause rather than the Religious Freedom Restoration Act. And she doesn’t understand that it was the Obama administration, not Congress, that imposed the HHS mandate.

To be clear: I’m not suggesting that Ginsburg has slowed. Rather, I think that her gaffes provide further evidence that her ideology, rather than careful legal analysis, drove her to the result she reached in Hobby Lobby

For Ginsburg, a Human Being Isn’t a RFRA “Person” Either


I’ve discovered that I have been far too charitable to Justice Ginsburg regarding her Hobby Lobby dissent.

Recall that the first ground on which Ginsburg would have ruled against Hobby Lobby was her (badly misguided) proposition that a for-profit corporation is never a person capable of an exercise of religion within the meaning of the Religious Freedom Restoration Act. (Justice Breyer and Justice Kagan refused to join this part of Ginsburg’s dissent.) Well, it turns out that Ginsburg also somehow believes that a flesh-and-blood human being, when operating in the world of commerce, is also not a person capable of an exercise of religion within the meaning of RFRA. As she tells Katie Couric (somewhere around the 2:20 mark in the “Hobby Lobby Dissent” video available here):

But I should stress that my Hobby Lobby dissent really didn’t turn on the difference between a corporation and a sole proprietorship. My point was that no employer, whatever the business form, should be able to transfer that employer’s religious belief onto people who do not share that belief.

So Ginsburg is now telling us that her real “point” isn’t the actual ground she set forth. Worse, what she now calls her real “point” is inconsistent with her analysis (as well as with any conceivable reading of RFRA). In arguing that the Free Exercise case law that preceded RFRA provided “no support for the notion that free exercise rights pertain to for-profit corporations,” Ginsburg tried to distinguish away Gallagher v. Crown Kosher Super Market (1961) on the ground that four of the five challengers “were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” But she now maintains that human individuals engaged in commerce (as the individual challengers in Gallagher were) somehow have no RFRA rights at all.

From Ginsburg’s own account, it would appear that she was driven by her ideology to contort the meaning of RFRA to reach the result she wanted to reach. (Ginsburg’s notion that a person invoking the protections of RFRA “transfer[s]” his beliefs onto others also reflects her hostility to RFRA.)

Scott Lemieux: Murphy’s Scalia Bio a “Major Disappointment”


Still catching up on things from two weeks ago, I’d like to highlight this post from Scott Lemieux on Bruce Allen Murphy’s biography of Justice Scalia (which I have reviewed, very unfavorably, in this National Review piece and in a series of blog posts accessible here).

Lemieux, for what it’s worth, is situated well on the left side of the ideological spectrum. His assessment of Murphy’s book is very much the assessment that I would think any intelligent and well-informed liberal would have.

Responding to a reader, Lemieux first addresses my critique of Murphy’s stunningly incompetent account of Scalia’s dissent in Hamdi v. Rumsfeld. Lemieux fully embraces my critique: Murphy’s “dumbfounding passage” is “every bit as bad as he [Whelan] says” and is “the kind of mistake that forfeits a reader’s trust”:

We all make mistakes, but this is like saying that Dred Scott found all state slave codes to violate the 5th Amendment or that Lawrence v. Texas reaffirmed Bowers v. Hardwick. It’s mystifying.

More generally, Lemieux calls Murphy’s biography a “major disappointment.” As he gently puts it:

[A] lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash [he] makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts … and even when his doctrinal analysis is unobjectionable it’s pedestrian. 

Katie Couric’s Softballs


The series of softballs that Katie Couric pitches to Justice Ginsburg on Hobby Lobby is something to behold. From the video here:

Couric: All three women justices were in the minority in the Hobby Lobby decision. Do you believe that the five male justices truly understood the ramifications of their decision?

Ginsburg: I would have to say no. But justices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.

Couric: But you do in fact feel these five justices had a bit of a blind spot?

Ginsburg: In Hobby Lobby? Yes. Yes, I did.

Couric: And why was that?

Ginsburg: The same kind of blind spot the majority had in the Ledbetter case.

Couric: Because they couldn’t understand what it is like to be a woman?

Oddly, in explaining her position in the Hobby Lobby case, Ginsburg asserted that Hobby Lobby’s owners “have no constitutional right to foist [their religious] belief” on their employees, and she also complained that the Free Exercise Clause had never been so interpreted. She seemed not to have clearly in mind that the Hobby Lobby ruling rested on the Religious Freedom Restoration Act, not on the Free Exercise Clause. But, needless to say, Couric was clueless on that point.

Addendum: Ginsburg, Sotomayor, and Kagan take the positions they do because they’re liberals, not because they’re women. As I’ve pointed out before, other (and better) female judges have ruled in favor of religious-liberty challenges to the HHS mandate. It’s those who believe that all women do or should adopt the liberal feminist-prescribed position who suffer from a massive blind spot.

Ginsburg’s Lace Collars


Reinforcing sexist stereotypes, Justice Ginsburg has revealed to Katie Couric that she has a collection of lace collars to accompany her judicial robe and that she “has a special collar she wears for when she’s dissenting, and another for when she is in the majority.” So for those in the audience at the Supreme Court on announcement days, there is another tea leaf to read as they await announcements.

No word whether Ginsburg changes collars after one ruling has been announced and before the next.

This Day in Liberal Judicial Activism—July 31


1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service. Imagine what he could have accomplished with more time!

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

This Day in Liberal Judicial Activism—July 30


2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before: Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster. On September 4, 2003, Estrada withdraws his nomination.

Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist: “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.” Guess again, senator.

A Swing and A Miss, Chris Christie Edition


Last week, Brigid Harrison published an op-ed taking issue with the video ad released by my organization, the Judicial Crisis Network, tagging New Jersey governor Chris Christie’s horrific record on judicial appointments.

One of several data points that we identified in the video was Christie’s decision to re-appoint Chief Justice Stuart Rabner, a liberal judicial activist originally appointed by Jon Corzine. According to Harrison, we’re being unfair: Christie simply didn’t have any choice in the matter, because you just can’t comprehend how hard it is for Christie to deal with his state senate.  

Of course the state senate has made Christie’s life more difficult. But that’s less than half the story. The rest is that Christie devoted little attention, and even less political capital, to serious judicial reform. Let’s review.

First, Christie could have nominated better candidates. He could have picked nominees with sterling credentials, obvious intelligence, and a record of adherence to the rule of law and a conservative judicial philosophy. Instead, Christie picked a series of cronies and hacks for the supreme court who had little purpose other than burnishing Christie’s image as a politically correct pragmatist.

The first nominee that Christie succeeded in appointing, Anne Patterson, hasn’t turned out so well: She joined the state supreme court’s unanimous ruling ordering the state to grant same-sex marriages and its unanimous ruling giving class-action lawyers yet another hammer to chip away at New Jersey’s economy.
Lee Solomon, Christie’s most recent nominee to the supreme court, was once endorsed by Pro Choice New Jersey, and has been described as a pro-choicer apparently because of his opposition to parental notification for minors seeking abortions. No wonder conservative New Jersey state senator Michael Doherty believes Solomon will maintain the liberal status quo on the court.
Failed supreme-court nominee Bruce Harris — who acknowledged in confirmation hearings that he had almost no courtroom experience — turned out to be anything but a judicial conservative, comparing opposition to same-sex marriage to slavery.
Nominee Philip Kwon was more of a blank slate; we have no reason whatsoever to think that he adhered to Christie’s stated judicial philosophy. Was he picked because he and Christie were buddies at the U.S. Attorney’s Office? Who knows?

We haven’t even begun to discuss Christie’s lower-court appointees. Can any of them be described as highly qualified nominees with a record of adherence to the rule of law and traditional legal principles? Maybe so; maybe not. We have no idea, and Christie hasn’t done anything to promote the impression that he has taken these positions seriously.

Second, Christie could have spent some of the time he spent recording rants on YouTube and PR-stunt videos making the case for judicial reform. Instead, he gave these issues the back of the hand. When asked about the Supreme Court’s decision in Hobby Lobby v. Burwell, for instance, he flippantly asked “Who knows?” Sure, talking about judicial reform won’t get as many clicks or social media hits as a loud YouTube video, but it might actually lead to the very change that the state so desperately needs.

Today, just as when Christie took office, the biggest roadblock between him and his agenda is the New Jersey Supreme Court. Three years ago, the New Jersey Supreme Court issued its latest edict in micromanaging the state’s education budget. Just last year the court struck down regulations issued by the Council On Affordable Housing that attempted to relieve some of the crushing fiscal burden on local governments created by the court’s Mount Laurel decisions. And the court has been slowly rewriting criminal procedure, relying on social science instead of legislation to make it harder for law enforcement to figure out the rules ahead of time, ultimately making it harder to identify criminals. Some change . . .

Governor Christie has carefully cultivated an image as a stern-hearted politician who crushes anyone or anything in his way. But if Christie really wanted to play Governor Hardball, maybe he should have done it for the sake of achieving judicial reform, instead of political revenge.

David Cole on the “Roberts Court”


In the New York Review of Books, left-wing Georgetown law professor David Cole uses his review of three recent books as the vehicle for providing his assessment of the so-called Roberts Court. I say so-called because I think that the convention of naming the Court after the incumbent Chief Justice often obscures more than it enlightens—and because I think that the current Court is, alas, better understood as the Kennedy Court.

I may be applying the soft bigotry of low expectations, but Cole’s essay is much milder than I expected. Sure, he somehow manages to make his first paragraph about Bush v. Gore. Worse, in contending that the “Court’s five conservatives … relied on a wholly unprecedented theory” of equal protection, he conveniently omits to note that Justice Breyer and Justice Souter agreed with the majority that the Florida supreme court’s recount order violated the Equal Protection Clause. Plus, he repeats the baseless canard that the majority “announced” that it “would apply this [theory] one time only.” And, in his closing section, he complains that the Roberts Court “has been unremittingly conservative” on “access to judicial remedies for legal wrongs.”

But Cole agrees with Laurence Tribe and Joshua Matz (authors of Uncertain Justice: The Roberts Court and the Constitution) and Mark Tushnet (author of In the Balance: Law and Politics on the Roberts Court) that, as Cole puts it, “the reason so many cases are decided 5-4 is not so much that the justices are partisan or political in any simple sense, but that the cases pose genuinely close questions of competing values on which conservatives and liberals often disagree.” Indeed, contrary to the common caricature of the Court as conservative, Cole provides his own summary of cases in which the “Roberts Court” has “issued important decisions reaching liberal outcomes”:

It has affirmed the rights of married gays and lesbians to receive federal benefits, of prisoners to be free of overcrowding, of foreign detainees at Guantánamo to judicial review, and of criminal defendants to have effective assistance of counsel in negotiations over guilty pleas. The Court upheld Obamacare, and struck down Arizona’s anti-immigrant law that would have imposed onerous penalties on foreign nationals here who overstayed their visas.

It has protected the rights of unpopular speakers, invalidating laws prohibiting the depiction of animal cruelty, the sale of violent video games to minors, and lying about one’s military honors. This past term alone, the Court required police to obtain warrants to search cell phones of arrestees, affirmed the Environmental Protection Agency’s authority to regulate greenhouse gas emissions from power plants, and struck down a Florida rule that permitted execution of intellectually disabled defendants with IQs over 70.

The third book that Cole refers to is Bruce Allen Murphy’s biography of Justice Scalia. Citing the book as “underscor[ing]” the “complex dynamics of Supreme Court decision-making,” Cole embraces Murphy’s thesis that Scalia “has had limited influence on the Court’s results” and has been “a court of one.” There is plenty of room for different views on that matter, and I haven’t faulted Murphy for advancing that thesis. (Anyone doing so at length, though, ought to explore whether and when it’s legitimate for a justice to compromise his legal views in order to build a consensus; as usual, Murphy is not an intelligent guide.) 

Cole notably doesn’t endorse Murphy’s cartoonish account of how Scalia’s politics and faith have supposedly influenced his decisionmaking. Cole’s statement that the “most engaging parts of [Murphy’s] book are, ironically, the many lengthy quotations from Scalia” would seem to reveal his fatigue with Murphy’s tedious, tendentious, and gaffe-filled screed. (Cole, I’ll note, makes an error of his own when he states that Scalia’s criticism of Justice O’Connor in an abortion case came in “his very first term on the Court”; the case he quotes from was decided in 1989, at the end of Scalia’s third term.)

This Day in Liberal Judicial Activism—July 29


1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005. 

Today’s Fourth Circuit Ruling Against Virginia’s Marriage Laws


In the latest demolition exercise, a divided panel of the Fourth Circuit ruled today that Virginia’s marriage laws violate the Due Process and Equal Protection Clauses of the 14th Amendment.

The basic issue on which Judge Henry Floyd’s majority opinion (joined by Judge Roger Gregory) and Judge Paul Niemeyer’s dissent divide is how to read the Supreme Court’s 1997 precedent in Washington v. Glucksberg—and therefore what standard of review to apply. In Glucksberg, the Court emphasized that a right, in order to be recognized as fundamental, must be “objectively, deeply rooted in this Nation’s history and tradition” and that this inquiry requires “a careful description of the asserted fundamental liberty interest.”

The majority, acknowledging that “states have refused to permit same-sex marriages for most of our country’s history,” contends that “Glucksberg’s analysis applies only when courts consider whether to recognize new fundamental rights.” It maintains that the “fundamental right to marry encompasses the right to same-sex marriage” and that Glucksberg’s analysis is therefore inapplicable. (Slip op. at 41.) The Court’s cases, it says, “speak of a broad right to marry that is not circumscribed based on the characteristics of the individuals seeking to exercise that right.” (Slip op. at 43.) It proceeds to apply strict scrutiny to Virginia’s laws and concludes that they fail strict scrutiny.

Judge Niemeyer criticizes the majority’s analysis as “fundamentally flawed because it fails to take into account that the ‘marriage’ that has long been recognized by the Supreme Court as a fundamental right is distinct from the newly proposed relationship of a ‘same-sex marriage.’” He faults the majority “for never ask[ing] the question necessary [under Glucksberg] to finding a fundamental right—whether same-sex marriage is a right that  is ‘deeply rooted in this Nation’s history and tradition’ and  ‘implicit in the concept of ordered liberty, such that neither  liberty nor justice would exist if [it was] sacrificed.’” He points out that the majority can’t explain why its right to marry “does not also encompass the ‘right’ of a father to marry his daughter.” (Slip op. at 67-68; see also slip op. at 74-84.) He proceeds to apply rational-basis review and determines that Virginia’s laws survive that review.

I had initially assumed that Virginia attorney general Mark Herring’s irresponsible failure to defend his state laws meant that the case is now over. But I gather from the update to this post by law professor Josh Blackman that Supreme Court review remains possible.


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