Two weeks ago, I highlighted law professor Vikram David Amar’s essay contesting the widespread assumption that if the Supreme Court were to rule that Prop 8 proponents lacked standing on appeal, the district-court ruling that then-Judge Vaughn Walker made against Prop 8 would be operative. As Amar explains, if the Court were to rule against standing, it should vacate not only the Ninth Circuit ruling below but also Walker’s ruling—and leave it to the four named plaintiffs on remand to request entry of a default judgment in their favor.

In a follow-on essay, Amar thoughtfully explores the further possible consequences for Prop 8 of a ruling against standing.

1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.

Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”

Only after the cameras are off, in her written responses to post-hearing questions, will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999—twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.

1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.

Today the Senate unanimously confirmed Iowa assistant public defender Jane Kelly to the U.S. Court of Appeals for the Eighth Circuit.  As BLT notes, this was a quick confirmation.  President Obama nominated Kelly less than three months ago.

President Obama’s attempt to circumvent the Senate by unilaterally appointing Ohio politician Richard Cordray to the Consumer Financial Protection Bureau may have been premised on his expectation that he would get away with it. If so, he seems to have miscalculated, because the other two branches of government are providing him with a Sesame Street demonstration of the concept of “checks and balances.”

Senate Republicans wrote in February that they would “continue to oppose the consideration of any nominee, regardless of party affiliation, to be the CFPB director until key structural changes are made to ensure accountability and transparency at the Consumer Financial Protection Bureau.” (Their criticism of the CFPB’s unaccountable structure is echoed in a lawsuit brought by eleven states and a small Texas bank and the Competitive Enterprise Institute challenging the constitutionality of Dodd-Frank.)

But the most significant rebuke so far came from the judicial branch. In January, the D.C. Circuit held that the president’s appointments to the National Labor Relations Board — which occurred alongside the Cordray appointment — were invalid, because they “eviscerate[d] the Constitution’s separation of powers” while “demolish[ing] checks and balances.” As former White House Counsel Boyden Gray explained, “the D.C. Circuit decision is binding on the CFPB unless reversed by the Supreme Court.”

Representative Jeb Hensarling, chairman of the House Financial Services Committee, agrees. Yesterday he released a statement announcing that his committee would not accept testimony from Cordary until he is validly appointed to the CFPB:

The House Financial Services Committee cannot legally accept testimony from Richard Cordray on the Consumer Financial Protection Bureau’s (CFPB) semi-annual report until he is validly appointed as the bureau’s director, said Rep. Jeb Hensarling (R-TX), the committee’s chairman. However, the committee will continue to conduct rigorous oversight of the CFPB. . . .

“The court’s unanimous ruling makes it clear that there is no legally-appointed director of the CFPB at this time,” said Chairman Hensarling. “By law, the committee can receive this testimony only from a director who is appointed in accordance with the Constitution
and the Dodd-Frank Act, which created the bureau.” . . .

“No other regulator has more influence over the daily financial lives of Americans,” he continued. “Dodd-Frank gives the CFPB director the power to decide what financial products and services will – and will not – be available to American consumers and how much they will have to pay for them. How is it fair to American consumers that one unelected, unaccountable bureaucrat in Washington has the power to decide what kind of mortgage, car loan or credit card they can or cannot have? No bureaucrat should have so much control over the financial destiny of Americans, particularly one who is completely insulated from the types of checks and balances that apply to other government agencies.”

Three cheers for Chairman Hensarling.

As I spell out in Part II of my law-review essay on how the HHS mandate violates the federal Religious Freedom Restoration Act, it ought to be a simple matter for anyone to recognize that the HHS mandate substantially burdens an employer’s refusal, for religious reasons, to provide health insurance that covers contraceptives and abortifacients. Simply put, the HHS mandate makes such refusal illegal and subjects the refusing employer to massive fines. Under clear Supreme Court precedent, this plainly amounts to a substantial burden.

I’m reliably informed that, as of now, the plaintiff business owners and businesses that have challenged the HHS mandate have won preliminary injunctive relief in eighteen cases and have been denied relief in only six cases. Astoundingly, most or all of the six outlier courts that have denied relief have done so on the ground that the HHS mandate doesn’t impose a substantial burden. But as I explained of one such ruling (by the Tenth Circuit in the Hobby Lobby case), what those courts are really ruling, without understanding what they are doing, is that an employer’s refusal to provide health insurance coverage for contraceptives or abortifacients cannot be an exercise of religion. Such a ruling is patently wrong, as the only relevant question for purposes of the exercise of religion element is whether the objector is acting from a sincerely held religious conviction. As the Supreme Court has made clear, it is not the proper business of the courts to impose their own view on what constitutes improper complicity in immoral conduct.

For those who would like a more thorough explanation of these elementary points, I’m pleased to recommend law professor (and Becket Fund attorney) Mark Rienzi’s brief essay in the Virginia Law Review’s online magazine.

Last Friday, the executive committee of the Boy Scouts of America proposed a resolution that would revise its membership policy for youth members who are homosexual while retaining its policy for adult leaders. The BSA also issued a media statement about the resolution. The resolution is to be voted on next month by the 1,400 members of the Scouts’ national council.

Unfortunately, the proposed resolution gives ample signs of being ill-considered and unsustainable. Some observations:

1. The media statement falsely asserts that the BSA’s current membership policy “den[ies] membership to youth on the basis of sexual orientation alone.” In fact, the current membership policy, which applies equally to youth members and adult leaders, denies membership only to “open or avowed homosexuals.” The BSA “does not proactively inquire about the sexual orientation” of members. 

It is not a good sign that the BSA can’t even accurately describe the policy that it is proposing to revise.

2. The proposed new policy would state that “No youth may be denied membership in the Boy Scouts of America on the basis of sexual orientation or preference alone.” Again: That proposition is also true of the BSA’s current policy.

So what is the intended or actual substance of the policy change? On this important question, the resolution is utterly opaque.

The proposed new policy would no longer expressly and specifically state that youth members cannot be “open or avowed homosexuals.” At the same time, one of the “Whereas” clauses recites that “any sexual conduct, whether homosexual or heterosexual, by youth of Scouting age is contrary to the virtues of Scouting.”

So: Does the proposed new policy mean that every troop would be required to admit and retain youth members who are “open or avowed” homosexuals, so long as they are silent on whether they engage in homosexual conduct? Anyone voting on the policy should insist on a clear and direct answer to this question.

More generally, under the proposed new policy, what additional elements beyond “sexual orientation or preference alone” would call for denial of admission or termination of membership? Anything besides homosexual conduct itself?

3. The proposed new policy would leave in place the existing policy denying membership to adult leaders. In Boy Scouts of America v. Dale (2000), the Supreme Court ruled that the BSA has a constitutionally protected right under the First Amendment to its existing membership policy. That victory rested heavily on the BSA’s position that (as the Court summarized it) “homosexual conduct is inconsistent with the values it seeks to instill.” The proposed resolution, however, is conspicuously silent on this matter. It states only that it “will maintain the current membership policy for all adult leaders,” but doesn’t offer a reason why.

Is it still the position of the BSA that adult homosexual conduct is inconsistent with the values it seeks to instill? If so, why doesn’t it say so clearly? Since it doesn’t say so clearly, how can it expect to win the litigation against its existing policy for adult leaders that the overall change in policy would inevitably trigger?

4. Some youth members occupy leadership roles (e.g., patrol leader) within their troops. Does the proposed new policy mean that youth members who are “open or avowed homosexuals” are also eligible for leadership roles? If so, how does the BSA expect to justify barring adults who are “open or avowed homosexuals” from leadership roles while allowing youth members who are “open or avowed homosexuals” to hold such roles?

Take, for example, an openly gay youth member who is a senior patrol leader and who, on turning 18, wants to become an assistant scoutmaster. If the BSA requires a troop to allow that person to be a youth leader, on what ground does it expect to defeat his lawsuit suing for the right to be an adult leader?

5. Recall that the grand resolution that the BSA’s executive committee floated a few months ago was a so-called local option that would leave it to the churches, schools, and civic groups that sponsor troops to adopt their own policies on gay leaders and scouts. That incoherent and unworkable approach (which I critiqued in this essay) has now disappeared. But it’s quite a testament to the sloppy haste of the BSA’s executive committee that it was so eager to impose a “solution” that it now implicitly concedes was ill-advised.

Bottom line: If any change to the existing policy is warranted, it needs to be done right. If the BSA decides to revise its policy on youth members while retaining its policy on adult leaders, it needs to spell out carefully what its revised policy on youth members means, and it needs to avoid jeopardizing its ability to defend its policy on adult leaders. There is no reason at this point to believe that the proposed new policy satisfies these basic tests. Those who share the executive committee’s putative commitment to retain the BSA policy against adult leaders who are “open or avowed homosexuals” should therefore vote against the proposed new policy.

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints. 

Harper’s complaint was rendered moot after he graduated from high school. In March 2007, the Supreme Court granted Harper’s petition for certiorari and vacated (i.e., wiped from existence) the Ninth Circuit’s ruling.

Next Thursday, April 25, I will be back in my native California to take part in a discussion with Stanford law professor James Sonne in an event titled “Religious Liberty in the New Millennium.” (I promise to limit my reflections to the very early part of this millennium.) The lunchtime event in Irvine is jointly sponsored by the Orange County lawyers chapter of the Federalist Society, the St. Thomas More Society of Orange County, and the J. Reuben Clark Law Society. CLE credit is available. More info here.

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.” Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.  

Senior federal district Judge Edward R. Korman recently ruled that the FDA is obligated to make two “emergency contraceptives”—Plan B and Plan B One-Step (I’ll refer to them jointly as “Plan B”)—available “without a prescription and without any point-of-sale or age restrictions.” In other words, if his ruling goes into effect, anyone of any age could purchase Plan B over the counter, whether from a licensed pharmacy or from any other provider. His ruling would override the contrary directive made by HHS Secretary Kathleen Sebelius, and endorsed by President Obama, that limits non-prescription access to Plan B to women 18 and older and that makes Plan B available only at pharmacies.

I have not studied whether Judge Korman’s ruling is correct as a matter of administrative law, and I will assume arguendo in this post that it is indeed correct. Unfortunately, as Linda Greenhouse’s latest blog post illustrates, there are some who are eager to misuse Korman’s ruling in support of their broader ideological agenda. Greenhouse writes (emphasis added):

Judge Korman begins where discussions of emergency contraception should begin but almost never do: by defining the drug and how it works. Those challenging the requirement for employer-provided health insurance to cover birth control almost invariably train their attack on emergency contraception by calling it an “abortion pill” or abortifacient and asserting a religious objection to abortion.

But Judge Korman, citing a Government Accountability Office report that collected scientific articles on the mechanism of levonorgestrel, the synthetic hormone that is the drug’s active ingredient, demonstrates that Plan B is not about abortion. It immobilizes sperm and prevents or delays ovulation. In other words, when taken shortly after unprotected intercourse, Plan B works as birth control, by preventing rather than terminating a pregnancy. (The F.D.A.-approved label for Plan B raises the possibility that the drug might also work by preventing a fertilized egg from implanting in the uterus to begin a pregnancy, but the National Institutes of Health has removed language raising this prospect from its Web site, and the N.I.H. biochemist in charge of research on contraception has said the language should also be taken off the label. Judge Korman called the prospect that Plan B might permit fertilization but prevent implantation “scientifically unsupported speculation.”)

The debate over the contraception-coverage mandate wasn’t part of Judge Korman’s case; that issue will be argued next month before the federal appeals court in Denver in a case brought by the owners of the Hobby Lobby retail store chain. I hope the judges who hear the Hobby Lobby case and the other such cases that are cropping up around the country are as precise as Judge Korman in defining what’s at issue: evidence-based judging to go along with evidence-based medicine. If the challengers’ real objection is to birth control, they shouldn’t be able to hide behind the “abortifacient” label.

Greenhouse is wrong that, in the cases against the HHS contraceptive mandate, plaintiffs “challenging the requirement for employer-provided health insurance to cover birth control almost invariably train their attack on emergency contraception.” There is in fact a general divide between the Catholic plaintiffs, whose objections apply to contraceptives as well as abortifacients, and the non-Catholic Christian plaintiffs, whose objections are indeed generally directed at the possible abortifacient effect of emergency contraceptives and of copper IUDs.

But let’s unpack Greenhouse’s more serious errors and omissions:

1. The HHS mandate requires employers to provide coverage of all FDA-approved contraceptives. That includes not only Plan B but also Ella and IUDs. Even if it were clearly established that Plan B can’t operate as an abortifacient (and it’s not), the question—for those employers who have religious objections only against abortifacients—would still remain whether Ella and copper IUDs can.

2. The evidence that Plan B can’t operate as an abortifacient—that it can’t operate to prevent implantation of the fertilized egg, or early embryo, in the wall of the mother’s uterus—is far less settled than Greenhouse maintains. The evidence on Ella is even more equivocal.

Judge Korman himself is much more careful than Greenhouse is. He quotes and credits a GAO report that says that Plan B has “not been shown to cause a postfertilization event” and that “the possibility of a postfertilization event cannot be ruled out.” (Slip op. at 2, 3 (emphasis added).)

Further, the recent New York Times article that Korman cites (for a limited proposition) also treats the scientific evidence on Plan B and Ella as unsettled, as its title indicates: “Abortion Qualms on Morning-After Pill May Be Unfounded” (emphasis added). We learn in the article that studies “have not established that emergency contraceptive pills prevent fertilized eggs from implanting in the womb”—not that they have established that Plan B and Ella don’t prevent implantation. The strongest assertions in the article about Plan B are hedged: “probably,” “strong evidence,” “emerging data on Plan B suggest.” The article concedes that even “[l]ess is known about Ella.” And it notes that “[s]everal scientists acknowledged that absolute proof [as to Plan B and Ella] may be elusive.”

This February 2013 report co-authored by Princeton professor James Trussell (who is a member of the board of directors of the NARAL Pro-Choice America Foundation) states (on page 7 (emphasis added)):

To make an informed choice, women must know that [emergency contraceptives] … prevent pregnancy primarily by delaying or inhibiting ovulation and inhibiting fertilization, but may at times inhibit implantation of a fertilized egg in the endometrium.

In the next sentence, the report states that the “best available evidence” is that emergency contraceptives “do not involve interference with post-fertilization events,” but it’s obvious that the authors do not regard that “best available evidence” as conclusive. (The report also engages in the usual pro-abortion rhetorical wordplay in which destruction of the fertilized egg before implantation is deemed not to be “abortifacient.” But for opponents of abortion, the morally relevant fact is that prevention of implantation destroys the life of an already existing human embryo.)

3. “Research suggests,” as that same NYT article acknowledges, that copper IUDs “can work to prevent pregnancy after an egg has been fertilized.”

4. All of this amply explains why the Obama administration, in its Tenth Circuit brief last month in the Hobby Lobby case, conceded that Plan B and Ella might act by “altering the endometrium (thereby inhibiting implantation).” DOJ Brief at 9 n. 6 (internal citation omitted).

5. Greenhouse’s deeper confusion is to fail to highlight that the legal question whether Plan B should be made available to minors and the legal question of how Plan B should be labeled are conceptually distinct from the legal question whether religious believers may hold cognizable objections to the possible abortifacient effects of Plan B—and of Ella and copper IUDs. Given the persisting scientific uncertainty about how Plan B operates, it is appalling that Greenhouse would disparage the grave moral concerns about Plan B that many Americans reasonably hold. It is equally galling that she would obscure or overlook that the plaintiffs’ objections also apply to Ella and copper IUDs. That Greenhouse evidently doesn’t care one whit about the difference between genuine contraception and destruction of the early embryo is no reason for her to seek to trample the consciences of those who do.

To recast Greenhouse: Let’s “hope the judges who hear the Hobby Lobby case and the other such cases that are cropping up around the country are [much more] precise [than Greenhouse] in defining what’s at issue.” If so, they’ll readily recognize that religious believers who oppose the destruction of the lives of unborn human beings have ample basis to object to being dragooned to provide Plan B, Ella, and copper IUDs in their health plans.

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

Over at First Things, Princeton professor Robert P. George highlights these candid comments (emphasis added) from a leading lesbian activist:

It’s a no-brainer that (homosexuals) should have the right to marry, but I also think equally that it’s a no-brainer that the institution of marriage should not exist. . . . Fighting for gay marriage generally involves lying about what we are going to do with marriage when we get there—because we lie that the institution of marriage is not going to change, and that is a lie.

The institution of marriage is going to change, and it should change. And again, I don’t think it should exist. And I don’t like taking part in creating fictions about my life. That’s sort of not what I had in mind when I came out thirty years ago.

I have three kids who have five parents, more or less, and I don’t see why they shouldn’t have five parents legally. . . . I met my new partner, and she had just had a baby, and that baby’s biological father is my brother, and my daughter’s biological father is a man who lives in Russia, and my adopted son also considers him his father. So the five parents break down into two groups of three. . . . And really, I would like to live in a legal system that is capable of reflecting that reality, and I don’t think that’s compatible with the institution of marriage.

Professor George continues: “It is no longer uncommon for advocates of redefining marriage to acknowledge that the effect—for them an entirely desirable effect—of redefinition will be the radical transformation of the institution,” including “undermin[ing] its structuring norms of monogamy [and] exclusivity.” Somehow those acknowledgments receive little attention in the public debate over marriage.

By a 5-4 vote, the Supreme Court today ruled in Kiobel v. Royal Dutch Petroleum Co. that the Alien Tort Statute of 1789 does not apply extraterritorially. The Chief Justice authored the majority opinion, which was joined by Justices Scalia, Kennedy, Thomas, and Alito. The four liberals agreed that the Alien Tort Statute did not provide jurisdiction in this case, and they therefore concurred in the judgment (in an opinion by Justice Breyer), but they disagreed with the majority’s holding that the ATS does not apply extraterritorially.

The ruling is a significant defeat for American transnationalists (like former State Department legal adviser Harold Koh) who aim to use American courts to import actual or supposed norms of international law to override the policies that American citizens adopt through the processes of representative government. Over the last three decades, the ATS has been a favorite tool of transnationalists. Through litigation alleging human rights abuses abroad by foreign governments, transnationalists have sought to have federal judges act in a way that intrudes on and interferes with the authority of the executive branch and Congress to manage our nation’s foreign affairs. Today’s ruling should put an end to much of that ATS litigation.

I will note that the Court did not undertake to define exactly when invocation of the ATS would violate the principle against extraterritoriality. In Kiobel itself, the plaintiffs were residents of Nigeria who claimed that Dutch, British, and Nigerian corporations that were engaged in oil exploration and production in Nigeria aided and abetted the Nigerian government in committing human rights abuses. Because “all the relevant conduct took place outside the United States,” the principle that the ATS does not apply extraterritorially defeated jurisdiction.

There will, though, be many cases in which some of the relevant alleged conduct takes place within the United States (and, indeed, after today’s ruling, creative pleading will surely seek to identify relevant domestic conduct). Beyond making clear that “mere corporate presence” in the United States will not suffice, the Chief Justice’s opinion observes that “even where the claims touch and concern the territory of the United States, they must do so with sufficient force to displace the presumption against extraterritorial application.” That observation (and its supporting citation) ought to signal that there will not be ATS jurisdiction over claims based predominantly on, or focused on, foreign conduct, but future cases will have to sort out the precise lines.

National Review Online is transitioning to a new version of its content-management system, so if, like me, you’re experiencing some glitches, that’s probably the reason.

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

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

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

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

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

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

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

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

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

In his Best of the Web Today column, the Wall Street Journal’s James Taranto offers a long and interesting reflection on various aspects of the controversy over Philadelphia abortionist Kermit Gosnell. Of particular relevance to the portfolio of this blog, Taranto, who puts himself in the “mushy middle” on abortion policy, perceptively observes that “the bitter polarization about the question of abortion is inseverable from the Roe regime.” He calls for an end to Roe’s “gross abuse of power by the Supreme Court” and for the restoration of abortion policy to the democratic processes.

Among Taranto’s other observations, I’ll highlight the Mother’s Day Massacre of 1972:

A young Philadelphia doctor “offered to perform abortions on 15 poor women who were bused to his clinic from Chicago on Mother’s Day 1972, in their second trimester of pregnancy.” The women didn’t know that the doctor “planned to use an experimental device called a ‘super coil’ developed by a California man named Harvey Karman.

A colleague of Karman’s Philadelphia collaborator described the contraption as “basically plastic razors that were formed into a ball. . . . They were coated into a gel, so that they would remain closed. These would be inserted into the woman’s uterus. And after several hours of body temperature, . . . the gel would melt and these . . . things would spring open, supposedly cutting up the fetus.”

Nine of the 15 Chicago women suffered serious complications. One of them needed a hysterectomy. The following year, the Supreme Court decided Roe v. Wade. It would be 37 more years before the Philadelphia doctor who carried out the Mother’s Day Massacre would go out of business. His name is Kermit Gosnell.