Bench Memos

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This Day in Liberal Judicial Activism—April 6


1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history. As one of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  

Obama Outpaces Bush on Judicial Confirmations


On Monday, the Senate confirmed John Owens to the U.S. Court of Appeals for the Ninth Circuit and two district court judges.  As Politico reports, this means President Obama is now outpacing President Bush in placing judges on the bench.  According to the Politico story:

Over the course of his presidency so far, Obama’s nominated 301 judges and gotten 237 confirmed. By this point in his presidency, Bush had nominated 267 judges and had 234 of them confirmed.

As of April 4, Obama has gotten 44 circuit court judges and 191 district court judges confirmed. As of April 4, 2006, Bush had 43 circuit court and 189 district court judges confirmed.


This Day in Liberal Judicial Activism—April 4


1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas is the longest-serving justice in history.

In his 2003 New Republic review of a biography of Douglas (Wild Bill: The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas’s judicial career: “For Douglas, law was merely politics.” Here’s Posner’s colorful fuller assessment: “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.”

As Posner acknowledges, one can, of course, “be a bad person and a good judge, just as one can be a good person and a bad judge.” By the evidence, Douglas was both a terrible person and a terrible judge.

Supreme Court’s McCutcheon Decision: Armageddon, or Common Sense?


The Supreme Court on Wednesday rendered its decision in McCutcheon v. Federal Election Commission. The Court struck down, under the Free Speech guarantee of the First Amendment, the federal law setting a dollar limit upon the total (or “aggregate”) amount of money a person can spend on political contributions to candidates, parties, and political committees. (Limits on contributions to particular candidates and PACs remain in place.) The decision was 5–4, and the dissent sounded the alarm:

Taken together with Citi­zens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

What a quotable sound bite! The dissent simultaneously invokes the bugbear (to liberals) of the Court’s Citizens United decision and proclaims, for campaign-finance regulation, the end of the world as we know it.

The dissenting justices — Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan — are being hyperbolic, of course, if not downright hyperventilating. All the McCutcheon decision held was that, since donors are already limited in how much they can give to Candidate X, Party Y, or PAC Z, it makes no constitutional sense to say that there has to be a limit on how many candidates, parties, or PACs the donor can support. If it’s not “corrupting” to give $5,200 each to nine candidates for federal office, how can it suddenly become a “grave problem of democratic legitimacy” if the same donor gives the same amount to ten, 12, or, 30 candidates? As the chief justice’s lead opinion explained, “the Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Or, to put it differently, if it would be a First Amendment problem for the government to put a limit on how much money a person can spend on different books, newspapers, and cable TV channels, isn’t it also a First Amendment problem for government to put a limit on how much money a person can spend on different political candidates, parties, and causes?

The root of the dispute stems from radically different understandings of political “corruption.” Here’s the chief justice’s take on what “corruption” means:

“The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” And those who govern should be the last people to help decide who should govern.

The dissenters, by contrast, claim the Chief “defines ‘corruption’ too narrowly.” Does this mean the dissent would characterize as “corruption” such displays as rewarding with campaign money those who vote a certain way, such as in favor of same-sex “marriage”? Yet a candidate’s fundraising success naturally depends upon the donors being happy with what the candidate either has done or promises to do, triggering the donors’ support through contributions. If this is “corruption,” then all money given because of support of a candidate’s views is “corruption.”

The dissenters assert that for them, “corruption” is “understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.” But this definition is hardly helpful. First of all, whether political influence is “pernicious” begs the question whether that influence is ipso facto “corrupt.” (Otherwise what is pernicious for one — like lobbying for a certain policy on abortion — is positive for someone else.) Second, “privileged access” is not just the province of big donors. It also is a feature of celebrities; major media; and a host of political heavy hitters, from EMILY’s List, Planned Parenthood, and unions on the left, to the Chamber of Commerce, pro-lifers, and the gun lobby on the right. (And even small donors sometimes get privileged access in return for money.) Are politicians supposed to give the cold shoulder to their allies, just because those allies can convert political support into votes? After all, the whole point of raising campaign money is to use it to garner votes. Having support from grassroots organizations, favorable coverage in the media, and endorsements from the icons of pop culture cuts out the middlebucks, so to speak, by translating directly into votes. Isn’t this even more corrupting than money, if the McCutcheon dissenters are right?

The problem, according to the dissenters, is “the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.” This is certainly a danger. But it is no different from the danger that politicians will make decisions because they crave fawning reviews in the mainstream media, or invitations to elite social events, or campaign back-up from certain powerful special-interest groups. If the danger is “special access and influence,” as the dissenters claim, why focus only on one kind of influence, namely that resulting from money? The First Amendment solution, the McCutcheon Court properly holds, is to take the government out of the business of tilting the political playing field.

— Walter M. Weber is senior litigation counsel at the American Center for Law and Justice.

Hobby Lobby: The “Accommodation” as Less Restrictive Means


As I spelled out in a pre-argument post, it is clear that the HHS mandate is not the least restrictive means of furthering any compelling interest that might be assumed to exist—and that it therefore violates the federal Religious Freedom Restoration Act—as the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a means that it says is less restrictive of their religious liberty. It is conceivable that a minimalist resolution of the Hobby Lobby case on this ground might garner a supermajority or even unanimity on the Court.

I’ve seen some confused discussion about what such a holding would involve, so I’d like to reiterate what seems to me straightforward:

As compared to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA whether or not the accommodation itself would survive a RFRA challenge. If the Court rules against the HHS mandate on the ground that the accommodation is a less restrictive means, there would be no reason for it to express any view on whether the accommodation itself satisfies RFRA. Among other things, that question hasn’t been briefed at all in this case, and it is the subject of pending litigation brought by religious nonprofits.

Similarly, for purposes of Hobby Lobby’s challenge to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA even though Hobby Lobby has not agreed that the accommodation would satisfy RFRA. Because the accommodation has never been offered to Hobby Lobby, Hobby Lobby has had no reason to assess its adequacy. (Indeed, the accommodation wasn’t even finalized until after the Tenth Circuit ruled in favor of Hobby Lobby.)​ Further, Hobby Lobby’s arguments about why the HHS mandate doesn’t further a compelling governmental interest—the first prong of RFRA’s strict scrutiny—would also apply against the accommodation.

In sum (and contrary to what Linda Greenhouse, near the end of her latest online column, seems to suppose), a resolution of the Hobby Lobby case on this minimalist ground would not mean that Hobby Lobby and other for-profit challengers would have to accept the accommodation. Nor would such a resolution eliminate the prospect that the Court would have to address, a year or so down the road, the separate arguments that the accommodation does not further any compelling interest and that it is not the least restrictive means of advancing any such interest.


This Day in Liberal Judicial Activism—April 3


2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing.

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook:

“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” 

McCutcheon v. FEC: A Victory for the First Amendment


This morning, the Supreme Court released its final decision in McCutcheon v. FEC, the first case argued this term. I had previously blogged about it here, and as I predicted, the opinion took on a 4–1–4 split. Although I couldn’t say after oral argument which way the decision would go, the court (as I hoped) upheld the First Amendment’s broad protections for political speech, striking down aggregate limits on political contributions (which effectively limit the quantity of races in which a particular donor can give).

I will have more thoughts after I’ve digested the whole opinion (the slip opinion is 94 pages), but here are a few preliminary observations:

The plurality opinion is written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Alito. It focuses mainly on the application of Buckley v. Valeo, a 1976 Supreme Court decision that established a framework for regulating campaign contributions. Buckley recognized that the First Amendment’s protections generally include rights of both speech and association (“Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). Today’s opinion vindicates those constitutional rights within the Buckley framework.

As predicted, Justice Thomas voted to strike down the donation restrictions, writing a separate opinion concurring in the judgment in which he argued that Buckley “denigrates core First Amendment speech and should be overruled.” This is no surprise, given the numerous opinions he has devoted to this issue over the last 18 years. In Justice Thomas’s view, Buckley distinguishes impermissibly between political giving and political spending, allowing less rigorous scrutiny for political giving. Justice Thomas’s opinion, which controls the plurality opinion, will leave us with some interesting questions about what reasoning will bind the lower courts.

Justice Breyer’s dissent on behalf of the remaining justices takes issue with the plurality’s view that “corruption” justifying speech regulations refers to quid pro quo giving. Instead, Justice Breyer articulates his definition of corruption in broad political-theory terms, under which the Supreme Court ensures that politicians will not give “undue influence” or be “too compliant” with their contributors’ views or gain “privileged access to and pernicious influence upon” elected officials. But the plurality opinion rightly dismisses efforts toward these goals as attempts to “fine-tune” the electoral process.

And that dispute introduces the other major problem with this entire system of regulation: whether it is trying to “level the playing field” or something else, policing contributions beyond corruption put the government in the position of limiting and distinguishing the types of acceptable speech, which is exactly what the First Amendment is designed to prevent.

McCutcheon v. FEC


In a 5-4 ruling today, the Supreme Court struck down the “aggregate limits” on how much money a person may contribute in total to all candidates or committees during a two-year election cycle. Plurality opinion (for four justices) by the Chief; broader opinion concurring in the judgment by Justice Thomas; dissent (for four) by Justice Breyer.

(I might write more about the ruling once I have read the opinions.)

Michigan Marriage Fiasco


Now that I have some time, here are some brief observations on the recent (March 21) federal district-court ruling invalidating Michigan’s constitutional provision defining marriage:

1. Federal district judge Bernard Friedman ruled that the Michigan constitutional provision doesn’t survive rational-basis review. As I’ve made clear, I don’t think that the Supreme Court’s ruling in Windsor against the federal Defense of Marriage Act augurs well for state marriage laws. That said, any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard. (In this regard, I’ll note that the First Circuit panel that struck down DOMA found it a simple matter (see page 14 of opinion) to determine that DOMA would survive conventional rational-basis review.) As Prop 8 proponents explained in their Ninth Circuit brief:

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.… [I]t is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing.

2. Judge Friedman’s lawlessness is equally manifest in his extraordinary refusal to stay his ruling pending appeal. Recall that in January the Supreme Court, without recorded dissent, intervened to block federal district judge Robert J. Shelby’s ruling against Utah’s marriage laws from taking effect. As other federal judges have understood, that action clearly signaled that courts ruling against state marriage laws should stay their rulings pending appeal. Unless Judge Friedman is an utter idiot (and I have no reason to think he is), he should have known that his ruling would be stayed by a higher court. (The Sixth Circuit issued a temporary stay the next day and later extended that stay for the entirety of the appeal.) Yet he was happy to unleash the chaos of same-sex couples rushing to marry during the interim.

3. Michigan governor Rick Snyder’s response has been remarkably weak and confused. Despite the fact that the supposed marriages that occurred during the interim are unlawful under the state constitution, Snyder has publicly stated that “we believe those are legal and valid marriages.” To be sure, he has also said that the state won’t recognize them as marriages while the stay is pending. But he has gratuitously undermined his defense of the state constitutional provision by mischaracterizing the supposed marriages as “legal and valid.” He also made it very easy for Attorney General Eric Holder to decide that the federal government would recognize those supposed marriages.

4. Meanwhile, Michigan attorney general Bill Schuette, who recently wrote a fine op-ed explaining why it is his duty to defend his state’s marriage laws, has been oddly silent on how he regards the supposed marriages.

Kagan: “The Dumbest Thing I Ever Heard”


That’s how Elena Kagan, at her 2009 confirmation hearing for the position of Solicitor General, characterized, and thereby distanced herself from, her much younger self’s bizarre understanding of how the Establishment Clause ought to operate. But if Justice Kagan was listening to herself at last week’s oral argument in Hobby Lobby, she has some serious new contenders for “the dumbest thing [she] ever heard.”

In trying to argue that the annual $2000 per employee tax that Hobby Lobby would incur if it chose to drop its insurance coverage for employees meant that the HHS mandate did not impose a substantial burden on Hobby Lobby, Kagan asserted: “But this is not the kind of thing that’s going to drive a person out of business. It’s not prohibitive.” (Transcript, 24:19-21.) Earth to Kagan: There is nothing in free-exercise jurisprudence to support the notion that a burden meets the minimum threshold of “substantial” only if it “is going to drive a person out of business” or is “prohibitive.”

Similarly, Kagan nakedly asserted that the overall cost to Hobby Lobby would be substantially the same if it dropped insurance coverage for employees, paid the penalty, and increased wages for employees to compensate them for the dropped coverage: “we are talking about pretty equivalent numbers,” “Maybe it’s a little bit less; maybe it’s a little bit more.” (Transcript, 24:17-19). In his thorough blog post last Friday, law professor Michael McConnell (elaborating the response that Paul Clement provided at oral argument) demolished Kagan’s assertion:

If employers were better off dropping insurance coverage and paying the “tax,” we would expect many large employers to do so. That has not happened—which confirms the common-sense conclusion that dropping insurance coverage is bad for employees and bad for business.

In any event, the speculation that Hobby Lobby could save money by dropping its employees’ health insurance plan, paying the tax, and making it up to them in increased salary disregards three important facts: (1) employer-provided health insurance is tax-exempt to the employee, but the compensatory increase in salary would not be; (2) the provision of insurance is tax-deductible to the employer, but payment of the tax is not; and (3) employer-based group coverage is cheaper and usually better than individual plans on the exchanges. It is almost certainly cheaper for Hobby Lobby to provide health insurance than to pay for its employees to purchase equivalent coverage on the exchanges.

True, some of Hobby Lobby’s employees might be eligible for subsidies, which in theory might lower its costs. But those subsidies depend on information an employer does not have – family size and income – and employers cannot pay different amounts to workers based on these factors. To make all of its employees whole, Hobby Lobby would have to assume none will receive subsidies.

In short, if Hobby Lobby drops insurance, it would not simply pay a $2,000 “tax.” Requiring it to cease providing insurance would cause massive disruption to Hobby Lobby’s employees, major uncertainty for its business, and cost millions of dollars in taxes and salaries beyond what it was previously paying just for insurance. It is easy to see how imposing such a choice constitutes a substantial burden—which is likely why the government never raised the issue, and the courts of appeals never considered it.

In fairness to Kagan, I will note that it’s conceivable that she was just posing “devil’s advocate” questions and that she didn’t actually embrace the propositions that she set forth. That’s certainly not how her remarks came across, though.

On the other hand, I will give Kagan credit for seeming to recognize the lack of merit in the Obama administration’s “threshold claim” that for-profit corporations operated in accordance with the religious beliefs of their owners have no religious-liberty rights at all. (See transcript at 51:9-13.)

Some Questions about RFRA from Hobby Lobby


During last week’s oral argument in Hobby Lobby v. Sebelius and Sebelius v. Conestoga Wood Specialties, Justice Kagan posed this odd question to Paul Clement (starting on page 13 of the transcript):

JUSTICE KAGAN:  But, again, Mr. Clement[,] as Justice Ginsburg said, [RFRA] was a very uncontroversial law.  Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard.  So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws.  And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative.

Here are several factors that make this a strange question.

First, the statute is unequivocal. The text of RFRA plainly states repeatedly that RFRA requires federal law to meet the “compelling interest” standard when it substantially burdens religious freedom. The government hasn’t questioned this interpretation. So why is Justice Kagan calling it “your understanding” or “your interpretation?”

Second, Justice Kagan’s question assumes that this is somehow controversial. But RFRA was passed in 1993 with only three “no” votes and was signed by President Bill Clinton, not exactly an arch-conservative. 

Third, there’s even a Supreme Court case that explicitly says that RFRA means what it says. Justice Kagan is doubtless aware of Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, a unanimous opinion applying RFRA to a religious exemption from narcotics laws. So why treat the challengers’ position as some bizarrely broad interpretation of RFRA when it’s just what the Court said RFRA means? 

Fourth, if anything, shouldn’t the fact that RFRA was uncontroversial mean that this is really an easy case, not a hard one? 

Should we interpret Justice Kagan’s questions as an indication that the left-wing of the Supreme Court is abandoning strong commitments to religious liberty as a first principle, or at least wants to abandon RFRA?

This Day in Liberal Judicial Activism—April 1


2013—The Supreme Court unanimously affirms a ruling by Ninth Circuit judge Stephen Reinhardt.

April Fool’s! Just kidding.

Instead, in a per curiam opinion (in Marshall v. Rodgers), the Supreme Court unanimously overturns a Ninth Circuit panel decision joined by Reinhardt and his lefty colleague William A. Fletcher (and authored by a visiting district judge). The Ninth Circuit panel had granted the claim by a habeas petitioner that the state of California had violated his Sixth Amendment right to effective assistance of counsel. But, explains the Supreme Court, the panel’s conclusion that the habeas claim was supported by “clearly established Federal law” rested on its “mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific rule that this Court has not announced.”

2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place. 

Judge Calabresi’s Flagrant Ethical Violation


Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.”* The official commentary to that canon further provides (emphasis added):

The admonition against public comment about the merits of a pending or impending matter continues until the appellate process is complete. If the public comment involves a case from the judge’s own court, the judge should take particular care so that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality, which would violate Canon 2A.

The pending Supreme Court case of Town of Greece v. Galloway, which was argued in November, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.

Despite the fact that the case remains pending, Second Circuit judge Guido Calabresi, who wrote the opinion under review, has somehow seen fit to offer extensive public comments—in the form of an edited interview—about the case. Among other things, Calabresi seeks to defend his ruling (including by emphasizing the ideological diversity of the panel), says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”

Calabresi, a former Yale law school dean, has been on the Second Circuit since 1994. Surely he ought to be familiar with the basic provisions of the Code of Conduct by now. Yet what we have here is not an inadvertent remark, but an extensive interview, about a pending case.

Further, by his public advocacy for the Supreme Court to affirm his ruling—and thus to deliver a victory to the plaintiffs—it would seem that Calabresi has failed to live up to his duty to “take particular care” to avoid “denigrat[ing] public confidence in the judiciary’s integrity and impartiality” (and has thus also violated Canon 2A).

* In the interest of completeness, I’ll note that Canon 3A(6) also states: “The prohibition on public comment on the merits does not extend to public statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly presentations made for purposes of legal education.” I don’t see any plausible argument that his interview falls within any of these exceptions.

This Day in Liberal Judicial Activism—March 31


1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime. Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.) 

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.” Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.” Asks Frankfurter rhetorically: “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?” Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes. 

This Day in Liberal Judicial Activism—March 30


1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.” In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”. But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional. (See This Day entry for Feb. 14, 1992, for more on this case and the Third Circuit’s reversal of Judge Sarokin’s ruling.)

2001—After nearly six years in which his preliminary injunction has operated to prevent Indiana from implementing an informed-consent statute for abortion that is materially identical to the provisions that the Supreme Court held to be constitutionally permissible in 1992 in Planned Parenthood v. Casey, federal district judge David F. Hamilton enters a permanent injunction against the statute. In doing so, Hamilton rests heavily on a statistical study, conducted by a sociologist at the Alan Guttmacher Institute, that related entirely to the effects of a waiting-period provision in Mississippi. Never mind that the Seventh Circuit had already determined, in a 1999 case involving Wisconsin’s informed-consent law, that the Mississippi study should not be relied on. A Seventh Circuit panel (with abortion radical Diane Wood in dissent) later reverses Hamilton’s injunction.

In 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to a federal appellate seat.

This Day in Liberal Judicial Activism—March 29


2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections. Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general. So what? As Justice Scalia responds: “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”

The Next Debo Adegbile?


Politico is reporting that Democrats are engaged in an internal debate over whether to abandon the blue-slip practice for judicial nominees: 

Pressure is continuing to mount in President Barack Obama’s base — and within his own White House — to push for a new nuclear option for judicial nominees. . . . White House counsel Kathy Ruemmler and others in the administration are currently caught between their own exasperation and their wariness about a direct challenge to Judiciary Chairman Patrick Leahy (D-Vt.) — the one and only man who could peel away the next layer of Senate control over nominations.

One of the nominees mentioned in the story is Ronnie L. White, the former Missouri Supreme Court judge whose first nomination to the federal bench was rejected in 1999 amid controversy over his record in criminal cases. President Obama nominated him for the federal bench last November. 

It’s hard to imagine that vulnerable Democratic senators would be excited about a floor vote on White’s nomination. Just a few weeks ago, the Senate rejected the nomination of Debo Adegbile for a high-ranking position at the Department of Justice after law enforcement and victim groups brought attention to his prior work on behalf of convicted cop-killer Mumia Abu-Jamal.

If Adegbile’s background gave Democratic senators heartburn, then Ronnie White’s judicial record will induce outright panic.  

When Ronnie L. White served on the Missouri Supreme Court, he was a death penalty skeptic, consistently finding procedural reasons to overturn death sentences. For instance, in two cases, Judge White accused trial court judges of racism. In the first case, where the defendant brutally beat his wife to death with a pipe while her son slept upstairs, Judge White claimed that the judge had been biased even though he could point to no “obviously unfair” ruling at trial. In the second case, Judge White wrote a majority opinion accusing the judge of racism because he had used racially neutral language to describe a juror. Judge White also joined several dissents arguing that death sentences should be overturned. One of these dissents argued that the Missouri Supreme Court’s job in death penalty cases was to conduct its own independent review and evaluation of the evidence, ignore the jury’s verdict, and effectively act as “super juror.”  

In another death penalty case involving a quadruple-first-degree murder spree, Judge White wanted to overturn the verdict because the defendant’s lawyer did not interview two government witnesses who partially rebutted the defendant’s insanity defense. After Deputy Sheriff Les Roark of the Moniteau County Sheriff’s Department responded to a domestic disturbance call at the defendant’s residence, the defendant shot Deputy Roark twice with a .38 caliber pistol. When the defendant heard Deputy Roark moaning in pain, he fired again, this time shooting him in the forehead. The defendant then drove to the house of Sheriff Kenny Jones, where he opened fire at the Christmas party inside. He shot Sheriff Jones’s wife five times, including twice in the head. She died.

The defendant then went to the home of Deputy Sheriff Russell Borts, whom he shot four times through a window. (Borts survived.) Next, the defendant drove to the Sheriff’s office building, where law enforcement officers from multiple jurisdictions had gathered. As they exited the building to respond to Borts’s shooting, the defendant opened fire, shooting and killing Cooper County Sheriff Charles Smith with shots to the head, face, right side, and upper back. The defendant also gunned down Miller County Deputy Sandra Wilson, who had just arrived and was exiting her car, with a single shot to the heart. In the terse verbiage of the majority opinion, “Deputy Wilson died on the pavement.” The defendant escaped and, after taking an elderly woman hostage for most of the next day, surrendered. 

Calling this a “hard case,” Judge White wanted to overturn the verdict based on his judgment that the defendant’s attorney unprofessionally failed to interview two state police officers. The defense claimed that the defendant was insane due to Post-Traumatic Stress Disorder caused by the Vietnam War, arguing (based in part on a deposition of the defendant’s wife) that during an episode, the defendant set up a tin-can-and-rope alarm system because he believed that he was “fighting in a free-fire zone.” The prosecution rebutted this claim after opening statement (a highway patrolman had set up the alarm) and used it to attack the defense’s credibility in closing. Judge White voted to reverse even though he was “not necessarily convinced that the weakness of the case was not the ‘most likely’ reason the defense failed,” that is, he believed that the most likely reason for the conviction was the weakness of the defense case. The defendant had confessed to the shootings, repeatedly describing his victims as law enforcement officers (not Viet Cong) and blaming his motivations on disagreements with the Sheriff’s Office.

When Judge White’s nomination was put to a vote, the Senate rejected his nomination on the merits, 45–54. It seems doubtful that senators who just voted against Adegbile’s nomination earlier this month would then vote for White, whose record would be more troubling to victims and law enforcement groups.

Hobby Lobby—Separation of Powers


At oral argument in Hobby Lobby, Justice Kennedy posed an important rhetorical question concerning how separation-of-powers principles bear on the compelling-interest inquiry under RFRA:

What kind of constitutional structure do we have if the Congress can give an agency the power to grant or not grant a religious exemption based on what the agency determined?… But when we have a First Amendment issue of this consequence, shouldn’t we indicate that it’s for the Congress, not the agency to determine that this corporation gets the exemption on that one, and not even for RFRA purposes, for other purposes?

When Congress enacted Obamacare, it didn’t say a word about contraception. It merely said that non-grandfathered insurance plans should cover “preventive care and screenings not described in paragraph (1) as provided for in comprehensive guidelines supported by the Health Resources and Services Administration….” HRSA, a sub-agency of HHS, delegated this task to an outside body, the Institute of Medicine. The IOM issued a report recommending that the preventive services regulation include, among other things, all FDA-approved contraceptives, including those that can kill an embryo. This occurred outside the rigors of notice-and-comment rulemaking and was guided by a select group of “experts” that included many voices from the pro-abortion lobby. IOM released its report in July 2011, well after many employers, including Hobby Lobby and Conestoga, had already given up their grandfathered health plans. 

Within days of the IOM report, HHS issued an interim final rule mandating insurance coverage for all the items recommended in the report. Only after the interim rule was issued did HHS choose to begin the process of notice-and-comment rulemaking. 

HHS provided a narrow exemption for houses of worship. In response to an intense political outcry, it initiated another rulemaking that offered an “accommodation” for religious non-profits.  That rulemaking was accompanied by a series of shifting “safe harbor” provisions and multiple delays, a familiar refrain for those of us watching the incompetent Obamacare rollout. Several senators chronicled this pattern of executive lawlessness in an amicus brief.

The end result was a system that provides exemptions for churches, an inadequate accommodation for non-profit religious organizations, and nothing at all for for-profit employers like Hobby Lobby and Conestoga. HHS claimed the power to make a religious exemption, but a narrow religious exemption of its own choosing—not a broad religious exemption designed to comport with the Religious Freedom Restoration Act enacted by Congress. That’s a deeply troubling result not only for those who care about religious freedom, but for those who care about our constitutional separation of powers. 

The Solicitor General began his argument with a quote from Justice Jackson’s opinion in Prince v. Massachusetts. Perhaps the Obama administration would have been wise to remember Jackson’s warning from the Steel Seizure cases:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Michael McConnell on Hobby Lobby


On the Volokh Conspiracy, religion-law expert Michael McConnell has an excellent post that sets forth compelling no answers to these four important questions:

(1)  Could Hobby Lobby avoid a substantial burden on its religious exercise by dropping health insurance and paying fines of $2,000 per employee?

(2)  Does the government have a compelling interest in protecting the statutory rights of Hobby Lobby’s employees?

(3)  Would a ruling in favor of Hobby Lobby give rise to a slippery slope of exemptions from vaccines, minimum wage laws, anti-discrimination laws, and the like?

(4)  Has the government satisfied the least restrictive means test?

Hobby Lobby—The Real Parade of Horribles


Much of the government’s argument, and much of the hostile questioning of Hobby Lobby from the bench, has focused on the parade of horribles that would supposedly occur if Hobby Lobby wins. As I have explained, this parade of horribles has not occurred in the past (even though the government acknowledges that sole proprietorships and partnerships could raise religious exercise claims) and it would be prevented by RFRA’s compelling-interest test. In fact, Congress adopted the compelling-interest test precisely because Congress regarded it as “a workable test for striking sensible balances between religious liberty and competing prior government interests.” 42 USC § 2000bb(5).

Tuesday’s argument revealed a different, and genuine, parade of horribles that merits attention. Under questioning from Justice Kennedy, the Solicitor General was forced to admit that the Administration’s argument, if accepted, would mean that an abortion mandate could be imposed on for-profit corporations. Transcript 75-76. (I have made a similar observation.) Under the government’s argument, for-profit corporations have no religious-exercise rights at all (a claim that even Justices Breyer and Kagan seemed to take issue with). Thus, under the government’s theory, the only thing that protects such employers from being forced to pay for abortions is that the government hasn’t yet decided to mandate such coverage. (Indeed, under that same theory, incorporated ob-gyn practices could be required to perform abortions.)

(The concern about an abortion mandate is far from hypothetical. A pending Washington state bill would impose precisely this requirement. The bill has passed the state House and is awaiting action in the Senate, as discussed in this amicus brief from a Washington state business.)

The Solicitor General initially seemed to claim that while such a mandate could coerce profit-makers, it could not reach religious non-profits. Transcript 75-76. But in context it is clear that the Solicitor General meant merely that the Administration would agree that a religious non-profit would be allowed to bring a religious-exercise claim (i.e., would “have an ability to sue”). Under the government’s theory, the religious non-profit would always lose such a claim, because the religious non-profit would be “extinguishing statutorily-guaranteed health benefits of fundamental importance to those employees.” Transcript 82.

Imagine that the Administration issues a rule (or a future Congress passes a law) saying “Every woman has the right to an abortion from the health-care provider of her choice.” Under the government’s theory, all for-profit doctors’ offices and hospitals would lose at the threshold: they would not be permitted to raise any religious-exercise claims at all. As to a religious non-profit, the government’s position would be that a religious-exercise claim could be made but would always lose. That is because the crux of the government’s argument in Hobby Lobby is that a RFRA claim must fail where it would “extinguish a statutorily guaranteed right of a third party.” Transcript 82. If a non-profit Catholic hospital refuses to provide the statutorily-promised abortions, and makes a RFRA claim for protection, it would presumably lose because allowing the hospital to benefit from RFRA’s protection would allegedly impose burdens on third parties. According to the government, avoiding such third-party harms is automatically a compelling interest, so the religious claimant would lose.

That result cannot possibly be squared with RFRA’s plain text, or with its legislative history, which was quite consciously focused on such abortion-related mandates. Yet if the government gets its way at the Supreme Court, RFRA would provide no protection to anyone in that context.



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