Bench Memos

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Judicial Restraint, (At Least) As Old as Judicial Review Itself


In his NRO article earlier this week, “Rand Paul Is Right: Judicial Restraint Is Wrong,” Evan Bernick writes:

Judicial restraint as a concept can be traced to an influential 1893 article by Harvard law professor James Bradley Thayer. Thayer argued that statutes should be invalidated only if their unconstitutionality is “so clear that it is not open to rational question.”

This is a strange statement, for Thayer understood himself to be summarizing, in this article (“The Origin and Scope of the American Doctrine of Constitutional Law,” published in the Harvard Law Review and also a little book), the cumulative wisdom of over a century of American jurisprudence.

Here, for instance, is Chief Justice Morrison Waite in 1879, fourteen years before Thayer’s article:

It is our duty, when required in the regular course of judicial proceedings, to declare an act of Congress void if not within the legislative power of the United States; but this declaration should never be made except in a clear case.  Every possible presumption is in favor of the validity of a statute, and this continues until the contrary is shown beyond a reasonable doubt.  One branch of the government cannot encroach on the domain of another without danger.  The safety of our institutions depends in no small degree on a strict observance of this salutary rule.

And the principle Waite identified was already old by then.  Here is Chief Justice John Marshall in 1810:

The question, whether a law be void for its repugnancy to the constitution, is, at all times, a question of much delicacy, which ought seldom, if ever, to be decided in the affirmative, in a doubtful case.  The court, when impelled by duty to render such a judgment, would be unworthy of its station, could it be unmindful of the solemn obligations which that station imposes.  But it is not on slight implication and vague conjecture, that the legislature is to be pronounced to have transcended its powers, and its acts to be considered as void.  The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.

For some latter-day admirers of an ahistorical “presumption of liberty” that in their view should supplant the actually-traditional presumption of constitutionality in the exercise of judicial review, Marshall is something of a villain.  (Their complaint comes down to regretting that he did not strike down more acts of Congress than the part of one section of one act he invalidated in Marbury v. Madison.)  But Marshall did not “invent” this presumption, either.  Here are his predecessors:

William Paterson, 1800: “[T]o authorise this Court to pronounce any law void, it must be a clear and unequivocal breach of the constitution, not a doubtful and argumentative implication.”

James Iredell, 1798: “[A]s the authority to declare [a law] void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.” 

Samuel Chase, 1798: “I will not decide any law to be void, but in a very clear case.”

The presumption of constitutionality—in its strong form as the “clear case rule”—was thus by no means invented by Thayer, and certainly not for purposes of clearing the path for Progressivism in legislation (Thayer died in 1902).  It’s as old, and as valid, as the Constitution it seeks to honor.  Our judges today should in fact work harder to conform to it.

The Libertarian Choice


To follow up on my NRO essay yesterday “Rand Paul Is Wrong: Judicial Restraint Is Right”:

Contra Rand Paul, the Big Question in constitutional interpretation is not judicial restraint versus judicial activism. It’s originalism versus non-originalism (whether the “living Constitution,” pragmatism, or any other stripe). It’s Paul’s confusion on that point that makes him—who touts himself as “100% pro-life” and who has introduced a bill that “would extend the Constitutional protection of life to the unborn from the time of conception”—suddenly unable even to say that Roe v. Wade was wrongly decided.

For those libertarians, like Randy Barnett, who embrace originalism, judicial conservatives are their natural allies. To be sure, libertarians and judicial conservatives will often have different reads on what originalism yields, but they will be in productive conversation with each other and will recognize that they share the same opponents. Most judicial conservatives are very sympathetic to the small-government cause and will be open to exploring libertarian originalist arguments for it.

Those libertarians who refuse to embrace originalism and who instead see judicial restraint versus judicial activism as the grand divide will become de facto allies of progressive judicial activists. And what hope will they have of persuading progressives of the wisdom of the libertarian cause? Zero. Instead, by blessing judicial activism, libertarians will invite progressives to engage in many more acts of statist judicial activism. How easy it will be for the Left to recast its policy goals in terms of supposed liberty interests that the courts must vindicate. Now that President Obama has stacked the courts with progressive judges, it is a particularly inopportune time to imagine that pleas for judicial activism will yield libertarian results.

The Marxists had a term for the sort of allies that libertarians would be for the Left: useful idiots.


This Day in Liberal Judicial Activism—January 16


2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake. When various religious groups sponsored an advertising campaign offering “healing for homosexuals”, the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

“Rand Paul Is Wrong: Judicial Restraint Is Right”


That’s the title of my piece just posted on NRO. An excerpt:

[Rand] Paul asks, “What happens when a legislature does bad things?” and he asserts, “If the states do wrong, then we [the courts] should overturn them.” So he seems to think that there are few if any limits on the power of judges to impose their will to override democratic enactments that they think do “bad things” or “wrong.” Indeed, he tepidly manages to say of Roe v. Wade only that the case for it isn’t “as clearcut” as the case for Griswold v. Connecticut. And he says not a word against the ongoing judicial redefinition of marriage. (Paul supported the Supreme Court’s decision against the federal Defense of Marriage Act, saying, confusedly, that the issue of marriage — in ABC News’s paraphrase —  “should be left to the states.” But he’s now undermined his ability to oppose judicial overriding of state marriage laws.)

SCOTUS Should Put an End to Disparate-Impact Nonsense


Hans von Spakovsky and Elizabeth Slattery had a fine article earlier this week about Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., in which the Supreme Court will decide whether to recognize disparate-impact causes of action under the Fair Housing Act. I appreciate in particular their linking to a piece I had on SCOTUSBlog, “The Fair Housing Act doesn’t recognize disparate-impact causes of action.”

Let me just add three brief points. First, it’s frequently asserted that we must allow “disparate impact” causes of action because actual discrimination (“disparate treatment”) is difficult to prove. But this is simply not true: The overwhelming majority of housing cases brought and won by the federal government are disparate-treatment cases, as anyone who reads the Department’s press releases every day (as I do) can attest. 

Second, many on the other side are arguing that you need the disparate-impact approach in order to go after segregated housing patterns. But of course that is not true if the segregation stems from disparate treatment. And if it is not the result of disparate treatment, then using the disparate-impact approach raises all the usual problems inherent in the disparate-impact approach. For example, how much racial balancing is to be required? What if the reasons for the racial imbalance reflect voluntary decisions or economic realities? What sort of remedies will be required (like deliberate assignments on the basis of race), and what if those remedies end up hurting people (including minorities) on the basis of race? And so on. Besides, if racial imbalances in housing patterns are a result of voluntary choices by individuals, then it’s unclear why this is a huge evil that the government needs to fix.

Finally, I’d note that the National Association of Mutual Insurance Companies submitted excellent testimony on this issue at November 2013 Congressional hearings, which can be read here (starting at page 110 in the hard-copy pagination). 

Here’s hoping the Court does the right thing and puts an end to this nonsense.


Say Hello to the Interstate Marijuana Lawsuit


In December 2014, the Attorneys General of Nebraska and Oklahoma asked the Supreme Court for permission to file a lawsuit against the state of Colorado under the court’s original jurisdiction to hear “Controversies between two or more States . . .” under Article III, Section 2, Clause 2.

The nub of the controversy is deceptively simple: Nebraska and Oklahoma are challenging spillover effects from Colorado’s efforts at legalization of marijuana. In 2012, Colorado voters passed constitutional Amendment 64, which created a detailed set of rules providing for legal medical and personal-use marijuana, along with regulation of the commercial establishments that would supply such marijuana. After Amendment 64 passed, the U.S. Attorney’s Office for Colorado announced that it would limit prosecutions of marijuana activity that don’t violate state law.  According to the lawsuit, the “significant increase in the trafficking of marijuana” resulting from these decisions has created a significant burden to the plaintiff states.

Nebraska and Oklahoma allege that by authorizing this system for marijuana distribution without adequately ensuring that the neighboring states would not be affected, Colorado has created an interstate nuisance. Amendment 64, they argue, is federally pre-empted by the Controlled Substances Act (CSA). The plaintiff states propose that the high court enjoin Colorado’s enforcement of those pre-empted laws.

Although the suit is still in the early stages and we don’t yet know the precise details of the plaintiffs’ theory, a preview contained in the initial filings suggest that they are expressly relying on the Supreme Court’s 2005 decision in Gonzales v. Raich (2005). Raich held that the Necessary and Proper Clause permits Congress to criminalize possession of marijuana for personal medical use in the exercise of its Commerce Clause powers, even if the marijuana has never actually traveled in interstate commerce.

The reliance on Raich in this case seems to be the starting point for most criticism of the case so far (even though several commentators have also criticized the suit under anticommandeering principles). Eugene Volokh was an early skeptic, predicting that if this suit succeeds, then a gun suit will soon follow. Fellow Bench Memos contributor Jonathan Adler was even more skeptical, criticizing the plaintiffs for embracing a broad reading of Raich:

An interesting wrinkle in the preemption argument, as put forward by the complaining states, is that it expressly relies upon the rationale of Gonzales v. Raich, in which the Supreme Court upheld the application of the CSA to the intrastate possession of marijuana for medical purposes authorized by state law.  Raich remains good law, but I am nonetheless surprised to see states such as Oklahoma and Nebraska embrace it so enthusiastically.  Most of those who seek to constrain federal power, and expand the reach of state autonomy, see Raich as an obstacle, a decision to be distinguished and narrowed, not a precedent to be expanded.

Adler also contended that if the Supreme Court strikes down Colorado’s laws as pre-empted by the CSA, it would make the problem worse and violate anti-commandeering principles. Worst of all, he suggested, it would call into question their commitment to their principles:

It is curious — and disappointing — to see a suit like this filed by two states that have taken the lead in defending state prerogatives in other policy areas.  It is as if their arguments about federalism and state autonomy were not arguments of principle but rather an opportunistic effort to challenge federal policies they don’t like on other grounds.  It makes Oklahoma and Nebraska look like fair-weather federalists.

Randy Barnett, who unsuccessfully argued Raich before the Supreme Court, argued that the lawsuit misconstrued Raich entirely, noting that “[i] n no way did it say or even imply that Congress had the power to compel state legislatures to exercise their police power to criminalize the possession of marijuana, or to maintain their previous legislation criminalizing such behavior.”  Ilya Somin chimed in, arguing that the suit (if it succeeded) would expand Raich, which he called “one of the Supreme Court’s worst federalism precedents.”

In response, David Rivkin and Elizabeth Price Foley took to the pages of the Wall Street Journal to mount a defense of the suit:

Whatever one thinks about Raich, it is still binding precedent. Colorado’s law is not about a limited, medical-need exemption for marijuana use. It is a full-scale defiance of the CSA. There is no federalism defense to Colorado’s law, unless one believes that Congress’s power to regulate interstate commerce doesn’t include the power to regulate the buying and selling of marijuana, a commercial market that involves interstate transportation, lures sellers and consumers from other states, and now generates more than $7 million in tax revenue for Colorado every month.

And then:

When federal power has been legitimately invoked, states may not go rogue. When they do, sister states that can demonstrate concrete injury are entitled to obtain a court declaration that state laws in conflict with federal law are unconstitutional. Normally such lawsuits wouldn’t be necessary because the federal government would enforce its superior law against rogue states. But these aren’t ordinary constitutional times, and it isn’t “fair-weather federalism” to defend these core constitutional principles.

Randy Barnett responded (emphasis in original):

Rivkin and Price Foley make a telling concession in a single important sentence: “States cannot be required to enforce federal law.” This is the key. States cannot be compelled by Congress to use their legislative powers to outlaw activity. Such “commandeering” was ruled unconstitutional in New York v. United States even where Congress is exercising its Commerce Clause powers.  What Rivkin and Price Foley are implicitly conceding is that states are entirely free to “legalize” or decriminalize all drug offences entirely. Put another way, they cannot be compelled to criminalize and prosecute such activity under state law.

* * *

As I acknowledged in my previous post, Nebraska and Oklahoma’s most plausible claim is that, by employing such regulation, Colorado is actively “aiding and abetting” the violation of federal law under the CSA, rather than merely passively permitting such violations. That perhaps while Congress may not mandate that states criminalize marijuana, it could still prohibit or bar states from regulating and thereby “facilitating” marijuana possession, use, and sale.

What is the future of this lawsuit? It’s too early to tell. Colorado has 60 days to respond to the plaintiffs’ motion, after which the plaintiffs have 10 days to file a reply brief. SCOTUSblog’s Lyle Denniston notes that the Supreme Court could deny the plaintiff states’ motion to file the lawsuit outright, which would end the case immediately. That seems unlikely, though, given the lack of a serious jurisdictional problem and the novelty and seriousness of the merits issues. Assuming that the Court wants to proceed to the merits, the case would probably go to a Special Master for development of a record. In other words, this is going to take a while.


This Day in Liberal Judicial Activism—January 14


1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds. 

Stealth Former Reinhardt Clerk Defends Reinhardt


An article in today’s San Francisco Daily Journal (subscriber-only) on the Ninth Circuit’s denial of the en banc petitions in the Nevada and Idaho marriage cases includes this passage on whether the Ninth Circuit ought now to conduct an investigation into its case-assignment practices:

M. Edward Whelan III, a conservative writer and president of the Ethics and Public Policy Center said Monday that the circuit’s thumbs down on the Sevcik en banc call opens the door.

“Now that the question is no longer presented in a pending case, it’s time for the 9th Circuit to conduct a serious investigation of the troubling evidence that its case-assignment process has been ideologically rigged,” he emailed.

Not all agree. “You don’t need an investigation whenever someone raises a silly claim,” said Shaun Martin, author of the California Appellate Report blog and a University of San Diego School of Law professor.

“I’m certain that the 9th Circuit could improve its process,” said Martin, who sits on a circuit advisory rules committee. “The judiciary is inherently a work in progress. But the claim that the process is deliberately biased, or that it was tilted here to achieve an intended result, is unworthy of substantial credence.”

I of course agree with law professor Shaun Martin that “You don’t need an investigation whenever someone raises a silly claim.” But I was surprised to see him so cavalierly apply that assessment to the Ninth Circuit’s situation. Is he even aware, I wonder, of the evidence of anomalies that I’ve presented that led judicial-ethics expert (and former Ninth Circuit administrator) Arthur Hellman to second my call for an investigation? If so, does he have any explanation for these anomalies? 

Wondering who Shaun Martin is, I located his USD bio, which states that he “clerked for the U.S. Court of Appeals Ninth Circuit” but, very oddly, doesn’t identify the Ninth Circuit judge for whom he clerked. I then checked his blog, which offers “Thoughts on recent Ninth Circuit and California appellate cases,” but discovered that its “complete profile” of him says virtually nothing. How strange, I thought, that someone who clerked for the Ninth Circuit would write a blog about Ninth Circuit decisions without making readily available to his readers which Ninth Circuit judge he clerked for.

So I decided to contact someone whom I figured would know Shaun Martin, and, as the title of this post gives away, I was informed—surprise!—that Martin is a former Reinhardt clerk. To confirm what I was told, I was then able to locate an old blog post of Martin’s in which he writes: “How much I love my former boss, Judge Reinhardt.” (On a quick skim, it would seem that a reader of plenty or most of his other posts about Reinhardt rulings wouldn’t know that he clerked for Reinhardt. I’m not suggesting that he needs to include that fact in every post that involves Reinhardt, but it certainly ought to be in a readily accessible bio.)

I confess that if I had clerked for Reinhardt, I would be inclined to conceal that fact. But it doesn’t appear that it’s embarrassment that has Shaun Martin obscuring his connection to Reinhardt.

In any event, how fitting that unbeknownst to San Francisco Daily Journal readers (and, I’m guessing, to the reporter, who I presume would otherwise have disclosed the fact) the person contending that no investigation is needed into whether the Ninth Circuit case-assignment process has illegitimately benefited Reinhardt is none other than a former Reinhardt clerk.

More on: Investigate the Ninth Circuit’s Case Assignments


As I noted last week, in a recent San Francisco Daily Journal article (subscriber-only), judicial-ethics expert Arthur Hellman seconded my call that the Ninth Circuit investigate whether its process for assigning judges to cases has been abused for ideological purposes. That same article stated:

[Ninth Circuit executive Cathy] Catterson, [former chief judge Alex] Kozinski and Chief Judge Sidney R. Thomas declined to answer detailed questions [on the topic]. A court spokesman, David J. Madden, justified the blanket “no comment” by pointing out that a petition for en banc review of the Nevada marriage decision is pending. “The court does not comment on pending cases,” he emailed.

Now that the en banc petitions in the Nevada marriage case have been denied, I trust that Ninth Circuit officials will be more forthcoming. In addition to responding to the anomalies that I’ve pointed out (see above link), I hope that they will also address the statistical analysis I highlighted yesterday that determines that the odds that random chance would have generated Stephen Reinhardt’s pattern of case assignments are about 3,350 to 1 against.

If the Ninth Circuit fails to act responsibly on this matter, it will be inviting an investigation by the Senate or House judiciary committee.

Reinhardt Anomalies—3,350-to-1 Odds


I’ve presented evidence that arch-liberal Ninth Circuit judge Stephen Reinhardt has benefited from unusual case assignments by the Ninth Circuit clerk’s office. I’m now pleased to highlight a massive statistical analysis of Ninth Circuit case assignments that uncovers statistically significant anomalies that uniquely favor Reinhardt. According to the study’s author, the odds that random chance would have generated Reinhardt’s pattern of case assignments are “about 3350 to 1”—yes, that’s three thousand, three hundred fifty to one—against. Here’s an excerpt:

If diverters in the clerk’s office were to manipulate assignment by favoring certain judges who could be counted upon to decide cases in the intended direction, how might this be evidenced? A favored judge might hear a lower number of cases than average per year, being assigned the same total work but more cases having heavy weights. A favored judge, assigned more of the weightier cases because of diversions in his direction, might have a higher percentage of his cases orally argued than do his colleagues. A favored judge might sit on fewer cases with an uncongenial majority (meaning a majority of Republican appointees) than do his colleagues, because this wastes his valuable time. A favored judge might sit on a higher than average percentage of panels consisting of three Democratic appointees, since this both gives the greatest chance of success in achieving an expansive ruling and may discourage the parties from further appeals in such cases.

There is one judge whose statistics are at the far end of the distributions in all four of these areas. His name is Stephen Reinhardt.

Considered alone, Judge Reinhardt’s numbers in any of these areas might not be too remarkable. But considered all together, they represent an implausibility beyond what may reasonably be believed to be random chance: they are statistically significant.

A few additional notes:

1. For professional reasons, the study’s author has chosen to use a pseudonym. He has identified himself to me, and I have independently confirmed his identity.

2. I don’t claim the ability to assess the merits of the study. So that others could do so, the study’s author has made all of his underlying data public. I will be happy to call attention to any serious criticisms of his study.

3. As the reader of the study will discover, the author also finds that Ninth Circuit judge Barry Silverman (a Clinton appointee) appears to have been disfavored in case assignments. The author offers some “pure speculation” why this might be the case. If any reader familiar with the Ninth Circuit has any insights on this matter, I’d welcome them.

Walter Berns and Harry Jaffa, Immovable Object and Irresistible Force


I began the formal study of American political thought 38 years ago, in the spring semester of my freshman year, and have spent all of those years grateful for the contributions of Walter Berns and Harry Jaffa to our understanding of the subject.  My professor in a class on American democracy, a student of Jaffa’s, assigned a book called American Political Thought as one of our texts, and both Jaffa (on Abraham Lincoln) and Berns (on Oliver Wendell Holmes, Jr.) were contributors to the book, which was edited by two men under whom I would later study, Morton Frisch and Richard Stevens.  (An expanded third edition is still in print.)

The editors and all the contributors but one were students of Leo Strauss (and the exception was profoundly influenced by him)—the remainder being Harvey Mansfield, Martin Diamond, Herbert Storing, Robert Faulkner, Ralph Lerner, and Harry Clor.  It was quite a challenging book for a freshman, and the impression on me was a lasting one—that the history of American politics was a history of statesmanship, a realm where thought meets action and profound questions of justice are at stake.  Not all the figures treated in the book were heroic.  Jaffa’s Lincoln certainly was, but Berns’s Holmes was decidedly not.  From teachers like these, one could really learn to think.

I never knew either Berns or Jaffa well, though I met them both and had some interesting encounters with them that said much about their characters.  I’ll keep those memories for our many mutual friends.  Mostly I have known them through their books and other writings, which are must reading for students of the American Constitution.  Probably their best are (from Jaffa) Crisis of the House Divided and A New Birth of Freedom, and (from Berns) The First Amendment and the Future of American Democracy and Taking the Constitution Seriously.  I did not always agree with everything they argued—I once published a severely negative review of one of Jaffa’s books, and risked his ire—but they were both scholars from whom I invariably learned something. 

As Rick Brookhiser remarks, the famously irascible Jaffa was prone to start guerrilla wars with his fellow conservatives over “cheese parings,” and Berns was often the immovable object against which Jaffa’s irresistible force crashed.  In this respect they were like the Adams and Jefferson to which their deaths on the same day have invited comparison.  Rather too bad, for one-time colleagues and students of a common teacher.  For what I will treasure in remembering Berns and Jaffa, as I continue to learn from their scholarship, is that they exemplified the best combination of the spirit of philosophical inquiry with the love of country.  As many have recalled, one of Berns’s last books was Making Patriots.  On the necessity for our country’s future of exactly that task, he and Jaffa surely agreed. 

For some, the label “Straussian” is an epithet, and a suggestion of an elitist, anti-democratic school of philosophy that harbors a deep-down disdain for America, and a belief that the liberal principles of the American founding should be publicly praised and privately undermined by “neocon” Nietzscheans.  No one could read the writings, and observe the very public careers, of Harry Jaffa and Walter Berns, and continue to believe such nonsense.  May they both rest in peace, having served the truth and their country well.


Alice-in-Wonderland Strangeness in Sixth Circuit


“When an employee voluntarily applies for, and obtains, a job transfer, his employer has not subjected him to an adverse employment action.” Sixth Circuit judge Jeffrey Sutton set forth that elementary proposition, in exactly those words, three times in his dissent a year ago in Deleon v. Kalamazoo County Road Comm’n.

In his dissent today (beginning at p. 26 of the order list) from the Supreme Court’s denial of certiorari, Justice Alito calls the Sixth Circuit majority’s contrary holding “so clearly wrong that summary reversal is warranted.” As Alito sums it up, the employee’s supervisors “did not violate federal law”—did not engage in an adverse employment action—“by granting him the transfer that he sought and that they had no reason to believe that he did not want.”

Still More Questions for Ms. Lynch


George Will’s weekend column raises some excellent new questions for Ms. Lynch. In addition to allowing the Senate to screen potential nominees, Will notes that Senate confirmation hearings “put nominees on notice that, as a Michigan state legislator reportedly once said, ‘I’m watching everything you do with a fine-toothed comb.’” Will raises several important questions for Ms. Lynch, ranging from questions about due process and criminal law to the evenhanded administration of justice.

As I have noted before, the compromised “Moonlight Fire” investigation and litigation has been the subject of intense scrutiny by state and federal courts in California, and increasingly, by national media. Will could have asked another question:

“It seems that the federal government is increasingly using its sheer weight to extort settlement payments from deep-pocketed defendants, even where there is no legal basis for a claim. In cases like the Moonlight Fire investigation, systemic incentives to fill government coffers with private money can create tremendous personal incentives for government officials to abandon impartiality. What will you do to end this practice?”

Judge O’Scannlain’s Dissent from Denial of En Banc Review in Marriage Cases


Late last Friday, the Ninth Circuit issued an order denying the petitions for rehearing en banc in the Nevada and Idaho marriage cases. The order includes a strong dissent from Judge Diarmuid O’Scannlain, joined by Judge Johnnie B. Rawlinson and Judge Carlos Bea. (It’s possible that other judges voted for rehearing but chose not to register their votes publicly, but, given the composition of the Ninth Circuit, I doubt that the vote margin was close.) Rawlinson is a Clinton appointee. Given the dissent’s discussion of Loving v. Virginia, I’ll also note that she is African-American.

Here’s a brief summary and outline of O’Scannlain’s dissent:

1. The Ninth Circuit panel opinion “overlooks binding Supreme Court precedent”—the Court’s dismissal “for want of a substantial federal question” of the same constitutional claims in Baker v. Nelson (1972). The Court decided Baker v. Nelson five years after it decided Loving, so plaintiffs’ claim that Loving controls makes no sense. Lower courts are obligated to follow Supreme Court precedent that directly applies even if that precedent appears to rest on reasons rejected in some other line of decisions. “Windsor, Lawrence, and Romer simply do not limit the states’ authority to define marriage and certainly do not contradict Baker’s conclusion that the Constitution does not require states to recognize same-sex marriage.” (Slip op. at 3-15.)

2. The Ninth Circuit panel “fails to respect bedrock principles of democratic self-governance” and “acts in a way Justice Kennedy has deemed ‘inconsistent with the underlying premises of a responsible, functioning democracy.’” “Nothing about the issue of same-sex marriage exempts it from the general principle that it is the right of the people to decide for themselves important issues of social policy.” (Slip op. at 3, 15-20.)

3. The Ninth Circuit panel “ignores the adverse implications of its opinion on our federal structure.” “The panel fails to recognize the principle that marriage law, like other areas of domestic relations, has been and should continue to be an area committed to the states.” (Slip op. at 3, 20-25.)

4. The Ninth Circuit panel opinion conflicts with the recent Sixth Circuit opinion and neglects to address the issues raised in that opinion. (Slip op. at 1-3.)

In Defense of Alan Dershowitz


I’ve already posted (and briefly commented on) Alan Dershowitz’s letter responding to my post last week about the sexual allegations that have been made against him. I’ve also now received the following letter from Mitch Webber. Mr. Webber informs me that he worked for Dershowitz, including on the Jeffrey Epstein matter, as a research assistant in law school and for several months following his graduation in 2006, and that, although he hasn’t been on the legal team since the end of 2006, he has kept up on the Epstein matter through the publicly available filings and news articles. Here’s his letter:

Dear Mr. Whelan:

You acknowledge Mr. Dershowitz’s unequivocal denial, under oath, that “never under any circumstances ha[s he] ever had any sexual contact of any kind . . . with Jane Doe #3.”  Yet you object to the remainder of Mr. Dershowitz’s declaration, claiming that he mischaracterized the geographic scope of Jane Doe #3’s allegations.

Your criticism is based on a literal reading of the phrase “not only in Florida but also on private planes, in New York, New Mexico, and the U.S. Virgin Island.”  Mr. Dershowitz’s itemized refutations address the most plausible meaning of each allegation, based on the context in which Jane Doe #3’s single-sentence accusation is made, including ten years of prior litigation in the instant and related matters.  For example, you complain that “Jane Doe #3’s allegation against Dershowitz refers generally to ‘the U.S. Virgin Islands,’ not to ‘Mr. Epstein’s Caribbean island.’”  But in all related prior and pending proceedings, every allegation related to the U.S. Virgin Islands, including those in the Motion to Intervene in which the Dershowitz allegation appears, concerns only the U.S. Virgin Island owned by Mr. Epstein.

It is simply not true that Mr. Dershowitz was attempting to deny less than what was alleged.  Mr. Dershowitz’s declaration was written for a court familiar with the context of the allegation.  You should have extended him the courtesy of reading his declaration in that light, especially following his response to your initial post, in which he reiterated his full and unambiguous denial that he did not have sex “with Jane Doe 3, any other Jane Does, or any other underage human being anywhere in the world, including all the places mentioned by Whelan.”

Mitch Webber

I happily plead guilty to a “literal reading” of the allegations. That said, I agree that Mr. Webber’s account/theory is very plausible, and I think that it fits with the alternative explanation that I’ve offered—that Dershowitz “was just being sloppy.” Or, to make the point somewhat more charitably, the aspects of Dershowitz’s declaration that I’ve found peculiar may simply illustrate the perils of serving as one’s own lawyer. (As the adage puts it, a man who is his own lawyer has a fool for a client.) Given his intimate familiarity with the Epstein litigation, Dershowitz might reasonably believe that the specific allegations must have the specific narrower meaning that he gives them. A lawyer with more distance from the litigation might have advised him to make that assumption explicit (for the sake of readers unfamiliar with the Epstein litigation) rather than seem to mischaracterize the specific allegations.

As I hope was sufficiently clear from my previous posts, I agree with Mr. Webber that Dershowitz’s unequivocal blanket denial necessarily encompasses a denial of the specific allegations.

This Week at the Supreme Court


Today the Supreme Court resumes its weekly oral arguments after a long winter’s nap. The court held a conference last week to consider a long list of cert petitions, so we should be hearing about some of those too.

The week’s argument highlight concerns free speech and religious liberty. This morning the court will hear Reed v. Town of Gilbert, Arizona to decide whether the Town’s sign code unconstitutionally discriminates against church signs. At issue is a Town ordinance that comprehensively addresses signage within the town and differentiates between categories of signage based largely on content. The ordinance specifically limits the size and placement of directional signs for church services to a greater extent than political and other types of signs. The central legal question is to what extent the Town’s intent in passing the sign ordinance determines whether strict scrutiny or intermediate scrutiny applies.

Below, the Ninth Circuit decided that the Town’s ordinance was content-neutral and would receive intermediate scrutiny. Petitioners (represented by Alliance Defending Freedom) are arguing that strict scrutiny applies because the regulation discriminates heavily against religious speech by relegating it to the smallest, most temporary signs. The Town contends that the ordinance is viewpoint-neutral and intermediate scrutiny should apply because it isn’t actually trying to restrict religious expression.

For a free-speech/religious liberty case, the amicus practice in support of the Town is meager, with only one amicus filing in support. The U.S. Solicitor General agreed with the Town that intermediate scrutiny should apply to the claim, but split the baby and filed an amicus brief in support of Petitioners, arguing that the Town’s ordinance fails intermediate scrutiny.

In addition to Reed, there will also be cases about qui tam, the EEOC’s statutory duty to conciliate claims out of court, the nexus between drug paraphernalia crimes and immigration law, and bankruptcy law

This Day in Liberal Judicial Activism—January 12


1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.” 

This Day in Liberal Judicial Activism—January 11


1954— President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

This Day in Liberal Judicial Activism—January 10


2006— Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.  

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But California governor Jerry Brown will then appoint Liu to the state supreme court.

Re: D.C. Event on Supreme Court Case on Judicial-Campaign Soliciting


A follow-up to my earlier post: Here’s the video of the panel discussion that I took part in yesterday at an American Constitution Society event at the National Press Club on Williams-Yulee v. Florida Bar, which will be argued in the Supreme Court on January 20. The case presents the question whether a law that bars candidates for elective judicial office from “personally solicit[ing] campaign funds” violates the First Amendment. 


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