Bench Memos

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This Day in Liberal Judicial Activism—June 17


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

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

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

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

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

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

“Polygamy and Human Dignity”


That’s the title of an insightful Public Discourse essay by political scientist Carson Holloway. I’ll quote here just the last paragraph, which applies equally to other efforts to redefine marriage:

Contemporary liberals tend to be environmentalists. In that capacity, they often warn us that even apparently small changes in the natural environment—such as the extinction of a single species—can have far-reaching and damaging consequences for the whole system. They commonly refuse to see, however, that the same concerns apply when we are making changes to our society. In changing the definition of marriage, they think they are accomplishing nothing but an extension of principles they think are good—equality, or sexual liberation. They refuse to acknowledge that they may also be changing the character of our whole civilization. 


Re: “This Is Not a Good Book”


On top of the Wall Street Journal review I highlighted (as well as an earlier one): In the Washington Post, legal journalist Seth Stern (whose biography of Justice Brennan I’ve praised) offers a very critical review of Bruce Allen Murphy’s new biography of Justice Scalia.

Stern observes that Murphy “offers little new insight in this relentlessly negative book.” Further, despite not having conducted “many” interviews (I think the actual number is zero) and having evidently spoken with Scalia only “a single time at a reception,” Murphy “has no compunction about writing as if he knows exactly what the justice was thinking or feeling at any given moment.” (For examples of some of the absurdities that Murphy’s armchair psychologizing yields, see my Part 4 post (points 2 and 3) and my Part 7 post. Links to my full series of posts about Murphy’s book are available here.)

By Stern’s judgment, Murphy’s book “fares poorly in comparison with” Joan Biskupic’s 2009 biography of Scalia, “which was more compact and yet far richer in detail about his early life and jurisprudence.” My own four-part review of Biskupic’s book combined some praise (especially on the biographical part) with much more criticism (of her account of his jurisprudence), but I agree with Stern that Biskupic’s book is much, much better than Murphy’s. (For an excellent extended account of Scalia’s jurisprudence, read Ralph Rossum’s Antonin Scalia’s Jurisprudence: Text and Tradition.)

This Day in Liberal Judicial Activism—June 15


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

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

“This Is Not a Good Book”


In a perceptive review in the Wall Street Journal, law professor Joshua Hawley provides that gently stated bottom-line assessment of Bruce Allen Murphy’s laughably incompetent new biography of Justice Scalia.

Among other things, Hawley points out, Murphy “shows an alarming willingness to bend the facts to fit his caricature,” “substitutes amateur psychologizing” in place of historical analysis, and spews charges that “are either unsubstantiated, purely ad hominem or … simply untrue.” Indeed, even “to call the book a ‘biography’ is overgenerous,” as Murphy, having failed to do any interviews or other original research, “never manages to place [his] discrete snippets [about Scalia] into anything resembling a historically informed portrait of the justice’s life.”

In the several opening and closing paragraphs that sandwich his review, Hawley provides vastly superior insight into Scalia’s jurisprudence and influence than you’ll find in the hundreds of pages of Murphy’s hash of confusion.

(Links to my own series of posts about Murphy’s book are available here.)


This Day in Liberal Judicial Activism—June 14


1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City (Missouri) school district—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy.

Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

Who Is Pamela Harris?


A bit over a month ago, President Obama nominated arch-liberal Pamela Harris to the last remaining vacancy on the U.S. Court of Appeals for the Fourth Circuit, traditionally one of the nation’s least radical appeals courts.

If Harris’s nomination is successful, Democrat-appointed judges on that court will outnumber Republican-appointed judges by a ratio of 2–1. Harris would be the sixth judge Obama has appointed to the Fourth Circuit, and Bill Clinton appointed five judges. (I count Judge Roger Gregory as a Clinton appointee because President Bush re-nominated him as a gesture of good faith after the Senate failed to act on his nomination at the end of the Clinton presidency.) George W. Bush, by contrast, succeeded in only three appointments. In short, one could say that the Fourth Circuit is in danger of turning into the Richmond branch of the Ninth Circuit.

Ms. Harris’s nomination was greeted with cheers in some liberal quarters for the very reasons that make her a bad candidate. First of all, she is a veteran of the legal Left, having worked for President Obama in the Office of Legal Policy, which describes itself as “serv[ing] as the primary policy advisor” to Attorney General Holder. Her longstanding relationship with the American Constitution Society (of which she was a board member) confirms that she is precommitted to imposing her left-wing political preferences from the federal bench. All of this inspired David Fontana to write for The New Republic that Harris would be “an eloquent and inspiring champion of liberal jurisprudence.”

There is no reason to doubt him on that point, and over the next few days Jonathan Keim and I will be writing a series of posts explaining why U.S. senators should be deeply skeptical of her ability to put the law ahead of her political views.

Supreme Pronunciations


We hear a lot about Supreme Court pronouncements but very little about the justices’ pronunciations. Helping to fill that void, law professor James J. Duane has published a Green Bag essay titled “The Proper Pronunciation of Certiorari: The Supreme Court’s Surprising Six-Way Split.” (A petition for writ of certiorari—often referred to by the shorthand “cert petition”—is of course the typical means by which a party asks the Supreme Court to review a lower-court ruling.)

Duane’s subtitle provides a big clue to his findings, and I won’t try to summarize those findings here. Instead, I’ll just note a couple of things that surprised me:

1. According to Duane, “almost every modern justice articulates all five syllables of the word, … and almost all pronounce the first two syllables as ‘ser-shee.’”

My in-house Latin scholar (literally in-house—I’m referring to my 17-year-old son) tells me that the Latin pronunciation of certiorari would indeed have five syllables, but that it would be “cair-tee-o-rahr-ee”*—with a hard t in the second syllable. (He’s actually not sure whether the last two syllables would be “rahr-ee” or “rah-ree.”)   

What I find surprising is that anyone who Anglicizes the second syllable with sh would give the word five syllables. Words like nation and spatial have two syllables, not three, as ti operates to produce the sh sound, and the i doesn’t function as a separate vowel. To be sure, there is the rare exception: ratio has three syllables, but when we have letters after the o (ration, rational), the extra syllable disappears. [Update: On second thought, I pondered whether ratiocination contradicted my preceding assertion, but I now realize that its ti is “see,” not “she.”​]

In short, contrary to Duane and (by his account) “almost every modern justice,” I think that certiorari, in an Anglicized pronunciation, has only four syllables. I pronounce it “ser-shuh-rar-ee.”

2. According to Duane, the Chief Justice, Justice Scalia, and Justice Breyer all pronounce the last syllable of certiorari with a long i (“eye”). I find that very strange. All three of the justices, I believe, have studied Romance languages, and, so far as I’m aware (I invite correction if I’m mistaken), a stand-alone i is never pronounced “eye” in those languages. Plus, they’re inconsistent: they make the second i long even as they pronounce the first i as “ee.” [Update: Well, we do make the closing long in fungi.]

But perhaps Justice Ginsburg and Justice Kagan have the best solution: avoiding pronouncing the word at all.

Update: The Washington Post’s Charles Lane covered this ground back in 2001.​ (Duane cites Lane’s article and “updates and expands upon his observations.”)

Further update: On my point 2, a learned reader emphasizes, as Duane himself does, that certiorari is a form of “Law Latin” (which Duane calls “a corrupted and debased version of Latin with a mixture of French and English influences”), and he counsels me against drawing any inferences from Romance languages. So perhaps it’s just Law Latin that is very strange.

* I initially had the first syllable as “sair.”

This Day in Liberal Judicial Activism—June 13


1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction.

In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

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

Some 17 months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court will summarily reverse the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”: 

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

Sixth Circuit Falls for Insurance Fraud


Yesterday a panel of the Sixth Circuit decided Michigan Catholic Conference v. Burwell, in which a number of religious employers and religiously affiliated nonprofits challenged the HHS contraceptive mandate as violating their rights under the Religious Freedom Restoration Act.  Unfortunately, the unanimous panel led by Judge Karen Nelson Moore has uncritically bought the Obama HHS line on “accommodation” of religiously affiliated nonprofit employers, repeating the errors of Judge Richard Posner back in February in the Notre Dame case, and without any Judge Joel Flaum (the dissenter there) on this panel to point out the court’s errors, either.

Judge Moore’s opinion accepts all the bad arguments about how the “accommodation” works—namely, that employers receiving the “accommodation” are not paying for or contracting for or even “facilitating” the contraceptive coverage, and therefore are not burdened by the requirement as they claim.  While I can understand the court’s plausible judgment (without endorsing it before more consideration) that the burden question is one of law, not of fact (whereas the sincerity of the claim to be burdened is admitted by the court to be a question of fact), the court has badly misunderstood the unbreakable web of moral responsibilities entailed by the “accommodation,” and thus erroneously held that there is no substantial burden triggering RFRA protection.

First, the employers who purchase insurance from a provider are assuredly paying for the contraception, claims to the contrary in the text of the regulation notwithstanding.  They pay premiums to the insurance company, and in the regulation itself the presumptive savings on costs of pregnancy and childbirth (due to an expected decline in pregnancies) are said to give the company the resources to provide “free” coverage of contraceptives.  Stop paying your premiums and see if they continue to provide the contraceptives.

Well, one might say, stop paying the premiums and they’ll drop all your coverage!  Just so.  All your employees’ coverage—including the “free” contraceptives—is provided by the insurance company by virtue of a contract under which premiums must be paid.

This leads me to the real crux of the matter, for there are also self-insuring employers covered by the “accommodation” whose third-party administrators are being squeezed to provide the contraceptive coverage, and those TPAs really do have to bear the costs themselves, or turn to the government for reimbursement.  Yet even these self-insuring employers are not morally off the hook.  It is by virtue of their employment that employees get the coverage, and it is by virtue of the employer’s contract with this or that particular TPA that the coverage is provided by said TPA.  This the Sixth Circuit panel is too obtuse to understand, swallowing the nonsense of the Obama DOJ.  Here’s a sample:

The crux of the appellants’ “facilitation” argument is that providing the self-certification form to the insurance issuer or third-party administrator “triggers” the provision of the contraceptive coverage to their employees . . .

Submitting the self-certification form to the insurance issuer or third-party administrator does not “trigger” contraceptive coverage; it is federal law that requires the insurance issuer or the third-party administrator to provide this coverage.

Pure sophistry.  But for the employer’s submission of the form, identifying the party with whom it has contracted to provide the coverage, there would be no coverage from that provider.  If the employer uses Blue Cross as an insurer or TPA, and then decides it would rather use Kaiser instead, it is by virtue of that decision of the employer that Kaiser and not Blue Cross provides the coverage.  And again, we should not let the primary relationship here slip from view: by virtue of their employment, the employees get the coverage.  The employment itself, the contract with the insurer or TPA, and the filling out of the self-certification form, taken together, are causative of the provision of coverage, whoever is paying for it.  That is sufficient to establish at least material cooperation with the use of contraceptives, and culpability for that cooperation is not erased by the government’s coercion of either a) the employer filling out the form or b) the insurer or TPA with whom one does business.  Where there is any cooperation that one’s faith teaches is sinful, there is undeniably a substantial burden on religious exercise.

For more links that explain the appalling deception the Sixth Circuit has fallen for, see here.  For opinions that don’t fall for it, see Judge Flaum’s dissent in the Notre Dame case (beginning on p. 31) and Judge Lee Rosenthal’s opinion in the East Texas Baptist University case.

Elmbrook and Religion as ‘Hazardous Waste’


The Supreme Court has been pondering for a long time what to do with the pending petition to review Elmbrook School District v. DoeIn Elmbrook, a Milwaukee-area high school decided to hold its graduation ceremony at a large nondenominational church because the school’s cramped gymnasium with no air conditioning lacked adequate space for those coming to see the graduation. Although the graduation contained no religious activity at all, activists still sued the school district, claiming that the mere presence of a cross on the church’s stage rendered the facility constitutionally toxic for the public school event.  The Seventh Circuit, sitting en banc, agreed.

The Becket Fund appealed that troubling decision to the Supreme Court, and the justices have been deliberating for a long time on what to do with that case. Many thought the Court would quickly grant, vacate, and remand the Elmbrook case in light of the Supreme Court’s excellent decision last month in Town of Greece v. Galloway, where the Court applied the Establishment Clause in a more balanced, reasonable way than the Seventh Circuit did in Elmbrook.  But the justices continue to wrestle with that case.

If the Court decides not to reverse or vacate the Seventh Circuit decision, it may trigger a host of lawsuits challenging benign interactions between government and religion that contain no proselytizing or active promotion of religion. An amicus brief by 15 state attorneys general spelled out how states frequently place polling places in a variety of commercial and community buildings, including houses of worship, so that people can access a nearby place to cast their ballots. Voters will suffer if state officials must avoid placing polling places in buildings owned by religious groups due to concerns about “endorsement of religion.”

Leaving the Seventh Circuit decision intact would also call into question the common practice of public schools renting vacant religious schools to deal with overcrowding problems. For years, New York City has dealt with the challenge of exploding school populations in certain neighborhoods by renting vacant parochial schools from the Catholic archdiocese or from Jewish yeshivas.  WNYC radio in New York City reported in 2012 that the New York City Department of Education rented 50 former or current religious schools “to alleviate overcrowding in some neighborhoods,” quoting a school official.  The Department of Education saves money by leasing these buildings because it does not have to construct new buildings as the only way to deal with short-term school-population spikes.

Although the NYC public schools do not conduct or sponsor any religious activities in these rented facilities, the buildings themselves retain passive religious carvings and mosaics, for example, that cannot be easily removed or covered in many instances. If the Supreme Court allows the Seventh Circuit’s decision to stand in Elmbrook, then what New York City does could be challenged in court, even though few people are complaining about the practice.  The WNYC article quoted the head of the New York Civil Liberties Union as receiving only two complaints about NYC’s practice of renting parochial schools. She also said the NYCLU has no desire to sue New York City for renting parochial school buildings to conduct public schools. Other public schools around the nation that are renting local religious buildings to deal with student-overflow issues might face lawsuits in light of the Elmbrook decision.

The Seventh Circuit’s decision reflects the extreme view of religion as “hazardous waste” — that religion is like asbestos in the ceiling tiles — a dangerous substance that the Establishment Clause requires government to eradicate. Supreme Court Justice Arthur Goldberg in 1963 cautioned against that view, rightly urging us to distinguish between “real threat and mere shadow” when applying Establishment Clause principles. What the school officials did in Elmbrook allowed the high school graduates to enjoy their memorable milestone event rather than be distracted by the crowded seating in an overheated gym. The Seventh Circuit’s harsh application of the Establishment Clause would not improve their graduation experience. The Supreme Court should vacate or reverse the Elmbrook decision.

— Jordan Lorence is senior counsel with Alliance Defending Freedom.

This Day in Liberal Judicial Activism—June 12


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

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

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

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

This Day in Liberal Judicial Activism—June 11


1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.

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

Religious Liberty in Black and White—and Gray


As Ryan Anderson nicely explains (contrary to some views expressed on the Corner), the question whether the Salt Lake City police officer should have been punished for asking not to ride at the head of the Utah Pride parade is not the same as the question whether the parade deserved police protection.  

Let me add, as someone who especially enjoys Charlie Cooke’s prolific writing (and tweeting), that his proposition that “If your salary is paid for by taxpayers, you don’t get to decide for which of them you will work” is frighteningly overbroad. If that proposition were correct, for example, a doctor employed by the government could be compelled, against his religious or moral scruples (or at the risk of his job), to do abortions. That is not the system we live in, and I sure hope that it’s not the system we are descending—oops, “progressing”—towards.

Count Me Very Skeptical


I learned from the Corner of this ruling today (in Vergara v. State) in which a state  judge in California has concluded that four statutes “cause the potential and/or unreasonable exposure of grossly ineffective teachers to all California students in general and to minority and/or low income students in particular, in violation of the equal protection clause of the California constitution.” The statutes at issue provide teachers tenure, protect them against dismissal, and require that layoffs be based on seniority.

I detest the damage that self-serving teachers unions have inflicted on the public schools, especially those in low-income areas. So from a purely result-oriented perspective, I would very much welcome today’s ruling. But I can’t say that I find its reasoning very persuasive.

The court extrapolates from state supreme court precedents (precedents that are highly dubious at best but that bind lower state courts) “an overarching theme [that] is paradigmatized: the Constitution of California is the ultimate guarantor of a meaningful, basically equal educational opportunity being afforded to the students of this state.” Never mind that the relevant constitutional provisions the court cites seem to give broad discretion to the “Legislature.” Declaring that the statutes shall be subject to strict scrutiny, the court rushes to the conclusion that they are unconstitutional.

On a first read at least, I don’t see how the court is doing anything other than second-guessing the legislature’s policy judgments.

Bruce Allen Murphy Responds


In the course of an interview about his wildly incompetent biography of Justice Scalia (which is being released today), Bruce Allen Murphy responds, in a fashion, to my extended critique. (See Parts 1234567, and 8.)

I’m going to pass over here the various confusions that Murphy repeats in his interview (including his reduction of textualism to dictionary definitions) and instead simply reply to his responses to me:

1. Murphy complains that I have read his book “through [my] lens as a defender of the Scalia faith” and that I don’t “fully appreciate[]” that he is writing for a “general readership.”

But Murphy abuses his “general readership” by his stunning botch of Scalia’s dissent in Hamdi v. Rumsfeld; by his cartoonish account of the supposed influence of Scalia’s Catholicism on his judging; by his laughable series of bloopers; by his hopelessly confused assessment of Scalia’s purported methodological shifts; by his bogus and tendentious ethical assertions; and by his relentless armchair psychologizing.

In short, Murphy persistently betrays the trust that any general reader might place in him.

2. Acknowledging that he never interviewed Scalia (apart from a brief exchange at an after-dinner reception—see point 5 here), Murphy says that I don’t “fully understand[] how much of [his] book relies on [public-record] quotations from Scalia.”

Well, I suppose that depends on what “relies” means. It’s true that Murphy quotes Scalia extensively. It’s the massive disconnect between the quotes and Murphy’s sloppy and tendentious speculations that I’ve criticized.

I’ll further note that, apart from not interviewing Scalia, Murphy seems not to have interviewed anyone—not any of Scalia’s family members, colleagues, friends, or law clerks. That’s quite a curious approach for a biographer of a living person.

3. Murphy says he was “surprised” that I wrote my critique “so early in the process—way before the publication date.” He contends that I want “two bites at the apple”—that I want “to criticize the book on [Bench Memos] and then write a review about it.”

I (inadvertently, to be sure) did Murphy a massive favor by writing my critique “so early in the process—way before the publication date,” as I gave him and his publisher, Simon & Schuster, the opportunity to fix some of the countless gaffes that plague the book. The fact that they did not avail themselves of this opportunity ought to deeply discredit them.

From a selfish perspective, far from wanting “two bites at the apple,” I’m relieved that Murphy did not have the good sense to correct the errors I pointed out, as the task of writing my review (forthcoming in the next issue of National Review) was much easier as a result. 

This Day in Liberal Judicial Activism—June 10


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

Deputy Solicitor General: Breyer “Is a Rather Cold Fish”


Having been very involved, as a Senate Judiciary Committee lawyer for Senator Orrin Hatch, in the confirmation processes for Justice Ginsburg and Justice Breyer in 1993 and 1994, respectively, I’ve noted with interest the Clinton presidential library’s release last week of some documents (229 pages in total) related to the Ginsburg and Breyer nominations.

As the Wall Street Journal’s Jess Bravin noted on Friday, one nugget in the release is a June 7, 1993, memo in which Ian Gershengorn—who was then a junior associate at the law firm of Jenner & Block—condemns Breyer as “a rather cold fish”:

There is very little heart and soul in Judge Breyer’s opinions. Quite clearly, he is a rather cold fish.

Gershengorn’s disparaging assessment is attracting attention primarily because Gershengorn, in his current capacity as the principal deputy solicitor general, is now arguing cases to Breyer and the other justices.  But beyond the embarrassment Gershengorn is (unpersuasively) trying to extract himself from, I’d like to focus more broadly on what Gershengorn’s assessment, and similar assessments in other released documents, reveal about how he and others on the Left view judging.

It’s especially telling that the two-sentence excerpt quoted above leads off the conclusion section of Gershengorn’s nine-page memo on Breyer’s appellate decisions on civil rights. (Gershengorn co-authored the memo with Tom Perrelli, who was associate attorney general during President Obama’s first term. The memo begins on p. 139 of the release.) It is clear in context that displaying “heart and soul” is what Gershengorn regards as most important in a justice. Indeed, not one word of Gershengorn’s three-paragraph conclusion touches on the soundness of Breyer’s legal reasoning.

In his opening “General Impressions,” Gershengorn complains that “it is all but impossible to imagine [Breyer] being an innovator on the Supreme Court on [civil-rights] issues.” (Emphasis added.) Yes, he “may well be fair and impartial,” but that’s not enough: “he brings no passion or insight into the field.” Indeed, “there is such a lack of vigor in his jurisprudence that one suspects he does not have (or refuses to utilize) any innate sense of justice.” (Emphasis added.) Gershengorn complains that Breyer “applies the rules in a dispassionate manner” and “clearly prefers the plodding application of law to any effort to reach substantive justice.” In this terrible failing, Gershengorn concludes, Breyer “is certainly a judicial conservative.”

I don’t mean to single out Gershengorn. Another memo in the newly released set states that a “theme that … does seem to emerge, from the reactions of quite a few lawyers in this firm [Wilmer Cutler] to what they have read, is what we might call ‘bloodlessness.’” It complains that Breyer’s cases seem “devoid of emotion and even—though this surely stretches the point too far—humanity.”

In another memo, Donald Verrilli, now the Solicitor General, observes that a “consistent reaction among reviewers was a sense of disquiet about the extreme detachment in Judge Breyer’s opinions.” Complaining about Breyer’s failure to display “any deep convictions or passions,” Verrilli observes that “it is difficult to imagine Judge Breyer as the author of the next Brown v. Board of Education.”

And yet another memo complains that Breyer’s “admiralty opinions [!] reveal a detached and unemotional jurist who seems to be more interested in somewhat mechanical, even-handed application of the law than in notions of fairness.”

The bottom line, I’ll acknowledge, isn’t news to anyone who has been paying attention in recent decades: The Left doesn’t want judges—yes, not even in admiralty cases—who “appl[y] the rules in a dispassionate manner.” It instead wants judges who indulge their “heart and soul” and their “innate sense of justice.”

Inventing Ambiguities in the Clean Air Act


The EPA made waves last week by releasing its ambitious new rule regulating existing sources of greenhouse gases. Amidst the reams of paper associated with the new regulation, the careful reader may have discerned this little gem of statutory interpretation on page 23 of the memorandum that lays out the agency’s legal analysis

The text of section 111(d) as presented in the U.S. Code, however, does not accurately reproduce the Section 112 Exclusion as enacted in the 1990 CAA Amendments. The correct statement of the Section 112 Exclusion – the one that was enacted by Congress and signed by the President, and which therefore is controlling – is found in the U.S. Statutes at Large. This text incorporates two versions of the Section 112 Exclusion, one passed by the U.S. House of Representatives and one passed by the U.S. Senate. The two versions were never reconciled, and both were enacted as part of the 1990 CAA Amendments. The two versions conflict with each other and thus render the Section 112 Exclusion ambiguous. Under these circumstances, the EPA may reasonably construe the Section 112 Exclusion to authorize the regulation of GHGs under section 111(d).

The purported conflict arises from the fact that the House and Senate passed similar (but textually different) amendments that operate on the same text of the U.S. Code. In essence, EPA is interpreting the House and Senate amendments (both of which are reflected in the text of the Statutes at Large at 109 Stat. 2399, 2467, 2574) in a way that causes them to conflict instead of interpreting them so they stand side-by-side. As Professor James Coleman has observed, EPA is echoing the arguments of Kate Konschnik, who is policy director for Harvard’s Environmental Law Program. This is the basis for EPA’s claim that the statute is ambiguous, and therefore that the agency’s interpretation should get Chevron deference.

Ambiguity is crucial to these greenhouse-gas regulations because, as EPA admits, the statute could be read to say “that the provision would not cover [greenhouse gases like carbon dioxide] because [greenhouse gases] are emitted from [electricity generating units] and [electricity generating units] are a source category regulated under section 112.”  If the provision doesn’t cover electricity-generating units, then EPA has no authority whatsoever to regulate greenhouse gases from power plants.

For reasons laid out by William Haun in a March 2013 paper, however, the asserted conflict is artificial because the content of the two amendments is readily reconcilable. One amendment prohibits EPA from regulating one category of source; the other amendment prohibits EPA from regulating a source listed under a different section. Even after both amendments, the word “or” remains in the statute. Thus, the two categories are nonexclusive and incapable of creating a conflict.

It is of course true that statutes should be interpreted so every word in the statute has a distinct meaning, but here, this principle suggests that there would only be ambiguity about whether a particular source fits into one category or the other. That’s entirely different from claiming, as EPA does, that because there are two amendments in the statute, it has the option to obey one and ignore the other.

Thankfully, it looks like EPA’s interpretation won’t go unchallenged. West Virginia’s attorney general, Patrick Morrisey, sent the EPA a letter making precisely this point. It’s too soon to know whether the EPA is receptive to the criticism, but I have a suspicion that this will end up in court sooner or later.

Strange Bedfellows Support Religious Freedom


The biggest religious liberty case coming up in next year’s Supreme Court term is Holt v. Hobbs, which involves a prisoner who is prohibited from growing a half-inch beard in accordance with his faith. Holt is represented by the Becket Fund for Religious Liberty and University of Virginia law professor Doug Laycock.

A broad coalition from across the political spectrum has filed amicus briefs in support of Mr. Holt: the U.S. government, Alliance Defending Freedom, the ACLU, Prison Fellowship Ministries (originally founded by Evangelical Chuck Colson), Islamic law scholars, Christian Legal Society, Jewish organizations, the Catholic bishops, the Southern Baptist Convention’s International Mission Board, the Anti-Defamation League, and even Americans United for the Separation of Church and State.

These groups’ unity shows that freedom of religion has broad support across the political spectrum, and shows how fringe-y arguments seeking to limit it really are. Amici agree that religious freedom extends even to how and whether an individual prisoner can wear a beard in prison according to his faith. That’s a staggering level of agreement for such a potentially contentious issue.

Although these amici ended up on both sides of Hobby Lobby/Conestoga Wood Specialties, they at least agree that religious exercise has an individual dimension that demands the strictest scrutiny. After all, they recognize why the law protects religious expression in the first place: because it’s a human right.


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