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Bench Memos

NRO’s home for judicial news and analysis.

Lincoln at Gettysburg



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The new issue of National Affairs (whose founding editor is my Ethics and Public Policy Center colleague, and Corner contributor, Yuval Levin) features a wonderfully insightful essay by Diana Schaub on the Gettysburg Address. Here’s a sample passage:

The first paragraph of the Gettysburg Address consists of only one sentence, but it’s a doozy. It describes the past, the nation’s beginnings. What Lincoln called “the birthday of the United States of America” in the serenade speech has been transformed into a sophisticated, poetic metaphor that refers to three distinct moments: conception, birth, and baptism. The past that Lincoln refers to is a past that stretches back before living memory. “Four score and seven years ago” exceeds the individual’s allotment of “three score and ten,” the Biblical phrase for the natural span of a human life. Lincoln’s decision to formulate the date in this way accentuates the fact that the founding is now beyond anyone’s direct experience.

By the way, the “serenade speech” that Schaub refers to in that passage was the “impromptu speech that Lincoln gave on July 7th, right after the [Gettysburg] victory, when residents of the District of Columbia assembled outside the White House to serenade him.” As Schaub points out, in that serenade speech Lincoln “prefigures points he will make at Gettysburg” but “in very different language.” Here, as one stark example, is how it started out: “How long ago is it?—eighty odd years ….”

This Day in Liberal Judicial Activism—April 25



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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.

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Profile of Justice Alito



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I very much enjoyed this American Spectator profile of Justice Alito.

Did Justice Kennedy ‘Schuette Down’ the Same-Sex Marriage ‘Inevitability’ Narrative?



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Did Justice Anthony Kennedy just signal in Tuesday’s Schuette v. BAMN decision that he might vote to uphold state constitutional amendments defining marriage as between one man and one woman? That seemed very doubtful last June when Justice Kennedy authored the majority opinion striking down Section 3 of the federal Defense of Marriage Act (federal DOMA) in U.S. v. Windsor. Many assumed after Windsor that it was “inevitable” for the Supreme Court to create a constitutional right to compel states to recognize same-sex marriage.

However, Justice Kennedy’s strong endorsement of voters deciding controversial social issues through their state constitution’s amendment process in Schuette raises the question of whether he is a sure vote to strike down state constitutional provisions defining marriage as one man and one woman. In Schuette, Justice Kennedy and five other justices upheld a voter-approved Michigan state constitutional amendment prohibiting state universities and public schools from granting “preferential treatment” to individuals based on their race, sex, ethnicity or national origin in operating the schools. Activists unsuccessfully challenged the Michigan amendment using equal protection arguments similar to those used to attack the various state marriage amendments.

Many view Justice Kennedy as the swing vote for a federal constitutional right to redefine marriage, so his views in Schuette on state constitutional amendments are important.  Justice Kennedy wrote at length how the Constitution permits state voters to determine difficult and divisive moral issues permeated with “rancor,” and that courts should stay out of these conflicts:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters . . . Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

These passages and more from the opinion conflict significantly with the decisions of many federal district courts interpreting Windsor as directing them to strike down state marriage amendments, which they have done with zeal. Schuette indicates that the lower courts may have been reading Windsor too broadly, because Schuette reinforces what Justice Kennedy wrote in Windsor — that in our federalist system, state governments have the legal authority to affirm marriage.

Schuette also shows that Justice Kennedy may have a more complex and nuanced view about “animus” motivating voters to approve state constitutional amendments.  He characterized positively the deliberations by voters to approve the Michigan amendment.  Justice Kennedy wrote that Michigan voters approved the amendment based on thoughtful consideration of the evidence and arguments, and not because of rank prejudice (which marriage advocates have been saying for years about the motivation of voters who approved marriage amendments in most states in the union):

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.  The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign, there will be those on both sides who seek to use racial division and discord to their own political advantage.  An informed public can, and must rise above this.

Will these new issues raised by Schuette appear in the marriage cases now pending at several federal appeals courts?  They should, and we may know soon. The Tenth Circuit in Denver just heard appeals of federal district court decisions that struck down the marriage amendments in Utah and Oklahoma.  The Fourth Circuit in Richmond set to hear oral arguments May 13 on the constitutionality of Virginia’s marriage amendment.

I would not be surprised to see supplemental briefing in those cases on how the Supreme Court’s decision in Schuette affects the constitutionality of the state marriage amendments.  After Schuette, a Supreme Court decree commanding states to redefine marriage looks a bit less inevitable.

— Jordan Lorence is senior counsel for Alliance Defending Freedom in its Washington, D.C., office. ADF is defending both the Oklahoma and Virginia marriage amendments at the 10th and 4th federal circuit appeals courts, respectively.

Bruce Allen Murphy’s Scalia: A Court of One—Part 7



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See Parts 1234, 5, and 6

In his forthcoming biography of Justice Scalia, Bruce Allen Murphy engages in a lot of implausible armchair psychologizing, as he crams the facts into his seemingly pre-formed theses. A few examples (beyond what’s in previous posts):

1. In his opening anecdote about the distinctive hat that Scalia wore to President Obama’s second inaugural, Murphy manages to withhold judgment on whether Scalia wore the hat in order “to cause … a sensation” (or in order to keep warm in the intense cold). But he asserts that Scalia “could not have been unhappy with the result” because “he was usually most pleased if the focus was on him.”

But on the very next page, Murphy claims that Scalia “attracted attention by not attending”  Obama’s 2013 State of the Union address. Never mind that Scalia hadn’t attended a State of the Union address since 1997, and never mind that it’s routine for justices not to attend. (As one summary of a study puts it, “In the period from 2000 forward, on average only 32% the justices attended the address, including a three-year period when Justice Stephen Breyer was the only court representative present.”)

2. Murphy contends that Scalia always searched for jobs that would “offer[] him the power, public visibility, and upward mobility that he craved.” He actually writes this in the same paragraph in which he reports that Scalia took his first job out of law school in the great power center of … Cleveland.

3. Murphy imagines that Scalia was happy to be the only originalist on the Court when he joined it, as he “would have the stage to himself, just as he liked it.”

4. Murphy even viciously and outrageously insinuates that Scalia was happy that Judge Bork’s 1987 nomination was defeated, as “Scalia was now completely free of the intellectual shadow of Robert Bork” and “he and he alone would represent the original interpretation theory on the Supreme Court.” 

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Argentina v. NML Capital



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On Monday, the Supreme Court heard oral argument in Argentina v. NML Capital, which involves a post-judgment discovery dispute in litigation arising from Argentina’s defaults on its bond obligations. (I’ve previously highlighted Argentina’s stated determination to defy our nation’s courts and the oddity of the Obama administration’s decision, nonetheless, to support Argentina’s position on the particular discovery dispute.) On Opinio Juris, law professor Michael Ramsey has an admirably clear post spelling out exactly what is at issue in the case and explaining why Argentina ought to lose.

Race Matters



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I don’t contest at all Justice Sotomayor’s proposition, in the Michigan case decided yesterday, that race continues to matter in lots of ways in this country. But I think that Chief Justice Roberts rightly responds, in his brief concurrence, that Sotomayor’s proposition does not meaningfully advance the case for racial preferences, whether on constitutional or policy grounds. [Addendum: Sotomayor asserts, “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Roberts offers the obvious response that it is racial preferences that “may themselves have the debilitating effect of reinforcing precisely that doubt.”]​

I’m also struck by this assertion of Sotomayor’s:

Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home.

If I’m understanding this properly (and perhaps I’m not), Sotomayor is positing that, say, a young Hispanic person who doesn’t speak Spanish would find it racially demeaning for “a stranger” to speak to him or her in Spanish. Just wondering: Is it racially demeaning only if the stranger is, or appears to be, non-Hispanic? If so, why isn’t that a racist reaction on the part of the young person?

Also, I had thought that English-only policies were regarded as racially demeaning. Is it also racially demeaning for a stranger to speak to a young Hispanic person in English if it turns out that the young Hispanic person doesn’t know English? If so, how is the stranger supposed to know in advance which language to use? Isn’t this a case in which the stranger is being damned either way?    

Bruce Allen Murphy’s Scalia: A Court of One—Part 6



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See Parts 1, 2, 3, 4, and 5

Much of Bruce Allen Murphy’s new biography of Justice Scalia is dedicated to a tedious and tendentious account of seemingly every speech or interview that Scalia has ever given (e.g., the “controversial television interview with Maria Bartiromo”!). Murphy contends that Scalia’s “extrajudicial speeches and conduct … ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court.” Further, according to Murphy, when Scalia began making speeches in his early years on the Court, he violated the “prevailing ethical norms of the Court against such extrajudicial speechmaking.” This “informal rule,” Murphy argues, “had been in existence since 1969, after the forced resignation of Justice Abe Fortas.”

Murphy’s claims are bogus. For starters, if there had been an “informal rule” against “extrajudicial speechmaking,” how is it that Justice William Brennan could have given a speech in October 1985 contesting the Reagan administration’s constitutional philosophy? Murphy conveniently forgets that speech, even though he had some twenty pages earlier quoted from it in highlighting the “legal intellectual fireworks between Justice William Brennan and Reagan attorney general Edwin Meese.” Murphy cites, and tries to distinguish away, a handful of speeches by Justice Blackmun in the early to mid-1980s, but his distinction—Blackmun was trying to “explain why analysts and observers should see him differently,” while Scalia “was outlining the terms of how he would act in the future”—is inane, ought to cut against Blackmun (why should a PR campaign be more acceptable than discussion of judicial philosophy?), and obviously doesn’t apply to Brennan’s speech.

Further, Canon 4 of the Code of Conduct for United States Judges (which doesn’t formally apply to Supreme Court justices, but which they have long looked to for guidance) expressly provides that, within broad limits, a judge “may speak, write, lecture, and teach on both law-related and nonlegal subjects.” As it happens, Murphy himself, in his published entry on “Extrajudicial Activities” in the Encyclopedia of the Supreme Court of the United States (2008), refers to extrajudicial activities of justices that “can involve activities as innocuous as giving a speech.” (Emphasis added.) (He does state later in that entry that speeches by justices “have led to some debates about the proper political role of the modern Court.”)

That same Encylopedia entry by Murphy renders absurd his claim that Scalia’s speeches and conduct exceed Fortas’s or could even be plausibly be compared to Fortas’s. By Murphy’s account, Fortas helped LBJ “draft pieces of  legislation,” “revise[d] State of the Union addresses in the Oval Office,” “served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup,” discussed with LBJ “issues then under consideration by the Supreme Court,” and agreed to payment to serve on a foundation funded by Louis Wolfson, whose appeal of his criminal conviction was pending in federal court.

Murphy also seems blissfully unaware that Justice Ginsburg authorized the NOW Legal Defense and Education Fund to name a lecture series after her—the “Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law”—even as that group continued to take part in cases on which Ginsburg sat. Nothing in the wildest smears that Murphy parrots against Scalia comes anywhere close to Ginsburg’s conduct.

Bruce Allen Murphy’s Scalia: A Court of One—Part 5



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See Parts 1, 2, 3, and 4

Another major thesis of Bruce Allen Murphy’s forthcoming biography of Justice Scalia is that Scalia’s interpretive methodology has repeatedly changed over the years. In a summation of his charge (p. 425), Murphy contends that

any fair reading of [Scalia’s] speeches and judicial opinions demonstrates clearly how the Court of Appeals judge, who had used a wide variety of decision-making theories, then became a strict textualist on the Supreme Court by the late 1980s, then evolved into a broader originalist by 1996, spoke as a Catholic on the Court in the early 2000s, became an even more partisan originalist by 2005, and was now [in 2010] casting himself as the judge of the historians.

Murphy’s contention is hopelessly confused. For starters, I’ll highlight the contrary assessment that a genuine scholar, Ralph Rossum, offers in his impressive 2006 book, Antonin Scalia’s Jurisprudence: Text and Tradition. According to Rossum, “Since his appointment to the Supreme Court, [Scalia] has been remarkably consistent in his approach to questions of constitutional and statutory interpretation, and his opinions have provided considerable instruction on what it means to be a principled and intelligent textualist.” Further, Scalia’s opinions during his D.C. Circuit years “sketched the outlines of the textualist jurisprudence that he would fully elaborate once he was on the Supreme Court.” (Murphy lists Rossum’s book among the 150 or so books in his selected bibliography, but I discerned no sign that he ever read it.)

Now let’s try to untangle Murphy’s confusion step by step:

1. Murphy says that Scalia “used a wide variety of decision-making theories” during his four years as a D.C. Circuit judge. To be sure, as a lower-court judge, Scalia was much more constrained by Supreme Court precedent than he would later be. That said, Murphy’s own account cuts against his claim.

According to Murphy, in the early Scalia dissent that “best demonstrated his early judicial technique and philosophy,” Scalia “demonstrated his new theory of ‘textualism,’ going to his dictionary for a textual meaning of the limits of speech in the Constitution’s First Amendment.” (In another passage, Murphy misunderstands textualism as nothing more than “dictionary meaning.”) In another opinion, he “add[ed]” to his textual approach “an inquiry into the historical tradition.” And by the fall of 1985, Scalia was “proposing that judges rely on his version of the ‘public meaning’ of the Constitution, interpreting laws according to the meaning of the words in the minds of the people at the time of the creation of that charter.”

Murphy seems to think that these illustrations are discordant rather than compatible. But if we set aside his error in thinking that textualism is limited to dictionary meaning and his infelicitous mixing of “public meaning” with what is “in the minds of the people,” we recognize the clear outlines of Scalia’s originalism.

2. Murphy states that Scalia “became a strict textualist on the Supreme Court by the late 1980s,” and he contrasts that phase with a later evolution “into a broader originalist.” By “strict textualist,” Murphy evidently means that Scalia supposedly “bas[ed] decisions” solely “on the dictionary definition of the Constitution’s or statute’s words.”

It’s true that Scalia sometimes relied on contemporaneous dictionary definitions. But Murphy can point to nothing that would indicate that Scalia ever embraced the notion that textualism was nothing but dictionary definitions. There is nothing in the “public meaning” theory of originalist textualism that remotely suggests such a limit.

Further, even if Murphy has a somewhat more expansive understanding of what it means to be a “strict textualist,” Scalia’s full originalism was already on display early in his time on the Court. Take Scalia’s classic 1988 dissent in Morrison v. Olson, at the end of only his second term.  Scalia relies heavily on the structural principle of separation of powers. He doesn’t  look to a dictionary to determine what “the executive Power” means. And after citing two competing dictionary definitions of “inferiour,” he relies on the structure of the Constitution and on the context of the word “inferior” in the Appointments Clause to determine that it means “subordinate.”

3. I have no idea what Murphy means when he contends that Scalia shifted to an interpretive methodology in which he “spoke as a Catholic on the Court in the early 2000s.” As my Part 3 post makes clear, I think it’s obvious that Murphy likewise has no idea what he means.

4. As for Murphy’s claim that Scalia, in 2010, was “casting himself as the judge of the historians,” it ought to be clear, whether from Murphy’s own account of Scalia’s “original meaning” approach in 1985 or from Morrison v. Olson or from umpteen other pieces of evidence, that Scalia’s public-meaning originalism always entailed a historical inquiry into the original meaning of legal provisions.

* * *

In sum, Murphy’s claim that Scalia made the various dramatic shifts that Murphy posits”—much less that “any fair reading of [Scalia’s] speeches and judicial opinions demonstrates clearly” those shifts—is ridiculous.​

Lest I be misunderstood: I readily acknowledge the possibility that an intelligent scholar could plausibly identify changes in Scalia’s approach as well as inconsistencies in how he has applied his stated principles. (Rossum, for example, contends that Scalia “has occasionally drifted from his text-and-tradition moorings.”) But Murphy’s account falls well below the bar of competence.

What Does Schuette Mean for Marriage?



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Today’s decision in Schuette v. BAMN held that states do not violate the Equal Protection Clause when they require equal treatment of citizens regardless of race.  On one level, the very proposition that equal treatment could violate Equal Protection is absurd, as Justices Scalia and Thomas highlighted in their opinion. 

Justice Kennedy in his opinion, however, focused on the democratic process and the trust that our form of government places in the people to work out the answers to contentious political issues.  The question of racial preferences is certainly one of those issues, but the hottest political debate by far that pits states against the federal government is that of the definition and redefinition of marriage.

Kennedy’s language in today’s opinion is very encouraging for those who defend the states’ constitutional authority to resist federal pressure to redefine marriage.  He describes the statewide initiative allowing Michigan voters to amend the Michigan Constitution as “a basic exercise of their democratic power” and lauds the initiative system as a means “to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.” 

This high regard for the initiative process was evident in Kennedy’s dissent in Hollingsworth v. Perry, the case challenging California’s Proposition 8 that amended the state constitution to define marriage as between a man and a woman. In that case, he lauded the initiative process as “establish[ing] a lawmaking process that does not depend upon state officials” to keep the power of government ultimately in the hands of the people themselves.  He also praised our system of government for “allow[ing] disputes of public policy to be resolved by the political process rather than the courts.” 

Today’s decision elaborates on the principle that the most contentious issues should be decided by the people and their democratically-elected representatives rather than unelected federal judges.

Here is Kennedy’s language from today’s opinion, which could have just as easily applied to the debate over the redefinition of marriage:

Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or facul­ties, acting at some remove from immediate public scru­tiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented re­striction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process. 

The respondents in this case insist that a difficult ques­tion of public policy must be taken from the reach of the voters, and thus removed from the realm of public discus­sion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsi­ble, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.

In characteristic Kennedy fashion, there is a catch: “when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts.” He suggests the courts should overturn even race-neutral laws if they are “designed to be used, or [are] likely to be used, to encourage infliction of injury by reason of race.”  As long as maintaining a state’s definition of marriage is cast as a no more than a mean-hearted attempt to stigmatize certain sexual practices rather than preserving the family through an institution as old as humanity itself, Kennedy’s vote may still be with those asking the federal courts to overturn states and their citizens in “a basic exercise of their democratic power.” 

But to the extent that the public at large is willing to engage in reasoned debate without sinking to ad hominems against either side, I would hope Justice Kennedy would adopt the same approach in the context of marriage that he did today in the context of racial preferences: 

Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor.  But that does not justify removing certain court-determined issues from the voter’s reach.  Democracy does not presume that some subjects are either too divisive or too profound for public debate.

As Kennedy also said, “This case is not about how the debate about racial preferences should be resolved.  It is about who may resolve it.”  In this and other major policy debates, the final word should be in the hands of the American people.

Bruce Allen Murphy’s Scalia: A Court of One—Part 4



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See Parts 1, 2, and 3

I’ll turn in future posts to some more of the theses that Bruce Allen Murphy sets forth in his new biography of Justice Scalia. But in this post I’d like to highlight some of the countless bloopers, non sequiturs, and baffling assertions that pervade the book, as I think that they provide some insight into the level of Murphy’s craft. So, in no particular order:

1. In the course of raising alarms over “a controlling majority of Catholic votes on the Court,” Murphy asserts that Chief Justice Roberts “is surrounded by a web of conservative Catholic figures and organizations in the Washington area.” At the “center of this web is his wife, Jane Sullivan Roberts, who in 1995 joined the Feminists for Life.” Murphy adds:

In time, John Roberts also became a member of the organization’s [Feminists for Life] board and offered pro bono legal advice.

Really?!? In all the speculation during his confirmation process over John Roberts’s views on Roe v. Wade, had everyone simply failed to mention that he was on the board of a pro-life organization? Or had I somehow forgotten all the discussion of that fact?

Fortunately, Murphy’s endnote referred me to his source for this surprising proposition, a Washington Post article that states that “Roberts instantly joined the [Feminists for Life] board and gave the group legal advice.” The only problem for Murphy’s proposition is that the “Roberts” that the article  refers to is Jane Sullivan Roberts. There is nothing in the article (which is helpfully titled “Nominee’s Wife Is A Feminist After Her Own Heart”) that states or in any way suggests that John Roberts ever joined the Feminists for Life board or provided the group pro bono legal advice. Nor did John Roberts list any such affiliation or activity on his Senate questionnaire response.

In short, on a point that he should have recognized would (if true) have been a matter of considerable public interest during the confirmation process, Murphy simply misread the article he cited by confusing John Roberts with Jane Roberts.

2. Murphy asserts that, beyond his losses in Court rulings, “something … happened in early April [1996] that particularly unsettled” Scalia. What so jarred Scalia? Of all things, Murphy contends, a Time magazine article, titled “The Search for Jesus,” that argued that Jesus was “an imaginative theological construct.” According to Murphy, “the notion that religion was being questioned … seemed to disturb Scalia profoundly.”

To put things in context: Scalia was not six years old in 1996. He was sixty. The Time magazine article that Murphy imagines so upset Scalia was of a genre that Scalia had surely encountered for decades.

Murphy offers not an iota of evidence that Scalia ever saw the Time article. But that doesn’t stop him from contending that Scalia “decided to lash out against [its] anti-religion message” in a speech that he gave at a Christian Legal Society prayer breakfast in Mississippi on April 9, 1996. Never mind, again, that there is nothing in Murphy’s secondhand account of the speech to indicate that Scalia even referred to the article. Never mind that the article (appearing in the issue postdated April 8) was published just days before Scalia’s speech, which Scalia would have prepared well in advance. (Indeed, I’m fairly certain that it was part of his standard set of speeches, as I believe that I heard it on an earlier date.)

Murphy simply has no insight into the subject of his biography if he imagines that the Time article (if Scalia had ever seen it) would have elicited more than a harrumph.

3. Murphy also absurdly asserts that Scalia felt overshadowed by Justice Thomas in mid-March 2008 when the Weekly Standard’s Bill Kristol proposed Thomas, but not Scalia, as a potential vice-presidential candidate for John McCain. This “unexpected event changed the political landscape” for Scalia and led him to seek “a new media platform to restore his place in the conservative pantheon.” Therefore, he traveled to London in February 2008 to address the London School of Economics and be interviewed on BBC.

Again, Murphy offers zero evidence for his causal chain. He doesn’t even try to establish that Scalia actually learned of Kristol’s suggestion of Thomas as VP.

The attentive reader will note that Murphy contends that something that happened in mid-March 2008 caused Scalia to take actions a month earlier (or likely much earlier, if one makes the sensible assumption that Scalia’s foreign travel gets planned well in advance). This is but one of several instances in which Murphy frees himself from the inconvenient logical constraints that linear time imposes.

4. Murphy, a supposed “scholar of American Constitutional law,” contends that the trimester framework that Justice Blackmun imposed in Roe v. Wade is “based on the concept that life begins at the point of viability outside the womb.” In fact, Blackmun famously (or infamously) declared, “We need not resolve the difficult question of when life begins.” He posited viability not as the point when “life begins” but rather as the point at which the state’s “important and legitimate interest in potential life” may allow it to “regulate, and even proscribe, abortion except”—rule-destroying loophole alert!—“where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” (Blackmun refers to “potentiality of human life” even after viability, so nothing about his use of the term “potential life” signals that he regards viability as the point “when life begins.”) [Update: See my Part 8 post.]

5. In what Murphy seems to regard as a “gotcha” moment, he recounts the lone conversation he had with Scalia. At a small after-dinner reception, Murphy set out to ask Scalia about his supposedly “evolving decision making.” After describing Scalia’s puzzlement at his line of inquiry, Murphy recites this back-and-forth (emphasis in original):

Murphy: “What if it turned out that historians learned more from newly uncovered sources and changed their scholarship?”

Scalia: “If someone brings me historical evidence that shows that I was wrong in the past case, I would certainly write differently, saying ‘on the basis of historical scholarship, I previously believed that this case interpretation was correct, but it turns out not to be true.’ Then I would correct the holding.”

Murphy: “So that would allow you to evolve?”

Scalia: “Yes.”

The exchange, of course, establishes nothing more than Scalia’s willingness to recognize the hypothetical possibility that he might read the available originalist evidence at a particular time to yield an interpretation of the Constitution that turns out to be wrong. Scalia isn’t saying that an unamended provision of the Constitution has one correctly discerned meaning at one time and somehow evolves to have a contrary meaning at another time. Nor, fairly understood, is he saying that his own judicial approach would “evolve.” He is simply acknowledging the trivial point that his approach, applied to different sets of originalist evidence, could yield different results. (And his closing “Yes” evidently provided him an escape to begin talking to someone else.)

6. In a remarkably obtuse passage, Murphy contends that the position of House Republicans that “every newly passed law contain an explanation of its foundation” in the Constitution “was contrary to Scalia’s philosophy that there could be new rights so long as the legislature passed a new law.”

What House Republicans were calling for, of course, is that Congress set forth the constitutional source of its power to enact a particular law. In recognizing that the Constitution leaves it to the democratic processes, in Congress and in state legislatures, to enact new rights, Scalia has never taken the position that the Constitution doesn’t impose limits on Congress’s powers. So the conflict that Murphy perceives comes from some weird confusion in his own head. [Update: See my Part 8 post.]

7. Continuing to display his profound knowledge of all things Catholic, Murphy finds comfort in Justice Alito’s former home parish in New Jersey:

Through its stated goal to teach its parishioners how to incorporate Catholicism into their daily lives, the Alitos’ New Jersey church’s mission statement made clear that it was not the same kind of traditional conservative church as Scalia’s St. Catherine’s or Thomas’s St. Andrew’s.

So Murphy thinks that a “traditional conservative [Catholic] church” doesn’t want its parishioners “to incorporate Catholicism into their daily lives”?!? If so, why is he writing a book with a dominant thesis that falsely contends that Scalia’s traditional Catholic views lead him to use his daily life to impose his Catholic values on others?

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I could go on and on with more examples. But if you’re paying attention, this, together with my previous posts, ought to be enough to alert you to the fact that Murphy doesn’t pay careful attention to what he reads, doesn’t pay careful attention to what he writes, doesn’t reason very clearly, doesn’t know all that much about the Constitution and leading Supreme Court cases, and doesn’t understand Justice Scalia. Other than that, he’s a great choice to write a Scalia biography.

A Victory for Equality: Schuette v. BAMN



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Today the Supreme Court upheld Michigan’s state law forbidding racial discrimination by the government in Schuette v. Coalition to Defendant Affirmative Action (By Any Means Necessary), a case I’ve posted about here before. (Full disclosure: I filed an amicus brief last year in support of the state of Michigan.) In 2006, Michigan passed a constitutional amendment forbidding the state from considering race, sex, ethnicity, or national origin in public employment, education, contracting, or the admissions process for higher education. The Court wasn’t addressing whether the amendment should have been passed, but whether the state could pass it in the first place.

The Sixth Circuit originally concluded that based on the political process doctrine, a series of Warren Court–era cases designed to enforce federal antidiscrimination laws, Michigan had acted unconstitutionally. Now, the Constitution clearly requires equality under the law, so it’s hard to see how prohibition of discrimination would constitute discrimination. But sometimes courts get confused.

In any event, the Supreme Court reversed the Sixth Circuit, with Justice Kennedy writing the plurality opinion. The Chief wrote a concurring opinion, while Justices Scalia and Thomas wrote a separate opinion concurring in the judgment. Interestingly, Justice Breyer wrote a separate opinion concurring in the judgment, while Justice Sotomayor wrote a dissent that Justice Ginsburg joined. (Justice Kagan was recused.)

Justice Kennedy’s opinion is very encouraging, and is well worth reading. As an initial matter, Justice Kennedy limits the political process doctrine, and argues that if the Sixth Circuit’s conception of the doctrine were adopted, it would require the courts to decide “which political policies serve the ‘interest’ of a group defined in racial terms.” As Justice Kennedy correctly points out, it is absurd to think that all individuals of the same race think alike, so attempting to go around categorizing individuals by race would be “inherently suspect.” Such an effort would impose no end to the courts’ constitutional legitimacy problems, not least because “Racial division would be validated, not discouraged,” if the Sixth Circuit’s reasoning were upheld.

Perhaps the most inspiring sentence in Justice Kennedy’s opinion is on page 15 of the slip opinion: “The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power.” That may seem like Con Law I material, but it needs to be said. Often.

And then: “It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.”

Chief Justice Roberts’s concurring opinion is only two pages long, which is just long enough to rebut Justice Sotomayor’s argument that those who disagree with her policy preferences are failing to take race seriously.

Justice Scalia’s opinion concurring in the judgment (joined by Justice Thomas) is classic Scalia: pithy, trenchant, and scathing. Although it joins the plurality’s opinion to the extent that it repudiates the political process doctrine but takes issue with its synthesis of the line of cases, the bulk of Scalia’s opinion focuses on the questionable premises of the doctrine, its administrability problems, and reasons why it should be overruled.

Justice Breyer’s opinion concurring in the judgment is mainly directed at explaining how narrow this case is, and that it wouldn’t fit within the political process doctrine.

Justice Sotomayor’s dissenting opinion occupies 57 pages and finds common ground, oddly enough, with Justice Scalia. She starts with a long history of racial discrimination, expounds the political process doctrine and defends its premises (with almost two full pages devoted to Carolene Products), and responds to Justice Breyer and others who voted to reverse. She agrees with Justice Scalia that the majority has not applied the political process doctrine as it appeared in prior cases.

Toward the end of the opinion, though, the tone changes and Sotomayor gets personal (this is what Chief Justice Roberts was responding to). She calls her colleagues “out of touch with reality” and accuses them of wanting to “sit back and wish away, rather than confront” racial inequality. She closes out the opinion with a brief tour of affirmative-action history and argues that race-sensitive admissions policies are a good thing.

But Michigan was trying to prevent discrimination or preferences based on sex, color, ethnicity, and national origin, not just race. And Michigan was trying to prevent discrimination and preferences in public hiring and public contracting, not just education. She acknowledges the breadth of Michigan’s effort to create neutrality, but her opinion is quite a disappointment on this score. Although the Michigan constitution demands strict neutrality in hiring, firing, admissions, and contracting, Sotomayor thinks neutrality itself is constitutionally suspect.

Which raises a provocative question: Would the Equal Protection Clause pass muster for Sotomayor? Or is it too neutral?

Bruce Allen Murphy’s Scalia: A Court of One—Part 3



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See Parts 1 and 2

A dominant thesis of Bruce Allen Murphy’s forthcoming biography of Justice Scalia is the alleged perfect alignment between Scalia’s “traditional Catholic values” and his methodology of constitutional interpretation—and Scalia’s purported adoption of that methodology as a cloak for imposing those values. As Murphy sums up this thesis (p. 377),

pre-Vatican II Catholicism and legal originalism/textualism are so parallel in their approach that Scalia could not help but realize that by using his originalism theory he could accomplish as a judge all that his religion commanded without ever having to acknowledge using his faith in doing so.

Someone tempted to advance this thesis in a casual discussion (much less in a book) might have the good sense to reflect on it a bit first:

1. One glaring problem with Murphy’s thesis is that on the vast bulk of hot-button “culture war” issues—from abortion to marriage to obscenity—Scalia’s position is that the Constitution is, within very broad bounds, substantively neutral on these issues and instead leaves them to the democratic processes to be resolved one way or another. In other words, Scalia doesn’t read the Constitution to prohibit permissive abortion laws, to require that marriage be defined as the union of a man and a woman, or to bar obscenity. (For more on the abortion point, see this essay of mine.) In short, he doesn’t read the Constitution to impose the Catholic position on these important matters (or any other matters).

2. Adopting the “living Constitution” approach would most easily enable Scalia to impose Catholic values. On abortion, for example, a living constitutionalist of a conservative bent would have no difficulty recognizing unborn human beings as “persons” for purposes of the Due Process Clause of the 14th Amendment. The argument for this position would begin with the historical fact that, prior to Roe, the American tradition long provided broad legal protection for the lives of unborn human beings from the time that those lives were understood, in light of the biological knowledge of the age, to commence. It would build on the modern advances in embryology and genetics, which establish that the life of each individual member of the species Homo sapiens begins at conception.

3. Thus, if Murphy were correct that Scalia believes that “his religion command[s]” him to impose Catholic values, Murphy ought to be deeply puzzled that Scalia is an originalist rather than a living constitutionalist.

4. Of course, Scalia (rightly) doesn’t believe that his Catholic faith (not even the “pre-Vatican II Catholicism that Murphy ascribes to him) requires him to impose Catholic readings of the Constitution. Murphy quotes from a speech in which Scalia explains the “minimalist” effect that the Catholic faith ought to have on a judge: the judge should try to get every case right, shouldn’t lie about what legal texts and precedents mean, and might have to recuse himself in some instances. (Oddly, Murphy then presents entirely compatible statements from “some members of the Catholic Legal theory [sic] community” as though they were in conflict with Scalia’s.)

5. A lesser point: There is in fact nothing remarkably parallel about the approaches of “pre-Vatican II Catholicism and legal originalism/textualism.” Yes, both deal with texts, so there is some inevitable overlap, but the Bible is a very different type of text than the Constitution (and other purely legal texts). Murphy’s simplistic account of the supposed “literalism of the Catholic faith” (!) neglects the fact that, way back to the time of Augustine, Catholic biblical scholarship has taken account of figurative expressions. Further, on the fundamental divide between Scalia’s original-meaning approach and the original-intent school, Catholic biblical interpretation aims to discern God’s intent rather than, say, merely what the Jews who first read or heard Jeremiah’s prophecies understood them to mean. (Catholic scholars also tell me that the sharp break that Murphy posits between pre- and post-Vatican II approaches is false.)

*  *  *

In sum, Murphy’s dominant thesis about the effect of Scalia’s religious beliefs on his adoption of originalism cannot survive minimal scrutiny—scrutiny that Murphy himself shows no signs of offering.

(To be clear: I am not here disputing the very different proposition that Scalia’s religious beliefs might affect his judging, for every judge is, to one degree or another, vulnerable to the temptation to indulge his beliefs and values. Originalism operates as a check—imperfect, to be sure—against indulging that temptation, while living constitutionalism offers an invitation to indulge.)  

Victory for Michigan’s Proposal 2



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By a vote of 6-2, the Supreme Court ruled today, in Schuette v. Coalition to Defend Affirmative Action, that Michigan’s Proposal 2, which prohibits state entities from granting various race-based (and other) preferences, does not violate the federal Constitution.

Justice Kennedy, joined by the Chief Justice and Justice Alito, wrote the lead opinion. Justice Scalia, joined by Justice Thomas, concurred in the judgment, as did Justice Breyer.

I’m looking forward to reading Justice Sotomayor’s dissent (joined by Justice Ginsburg) in order to learn how a mandate not to discriminate on the basis of race—a mandate, in other words, of equal treatment on the basis of race—might violate the Equal Protection Clause. (There are a couple of confused precedents; my guess is that Sotomayor happily extends them.)

Justice Kagan was recused.

Bruce Allen Murphy’s Scalia: A Court of One—Part 2



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See Part 1

In blogging about Lafayette College professor Bruce Allen Murphy’s forthcoming biography of Justice Scalia, I’ll start with his stunningly incompetent account of Scalia’s dissent in Hamdi v. Rumsfeld (2004).

The legal question in Hamdi concerned the rights of an American citizen, Yaser Hamdi, who was being detained indefinitely as an enemy combatant. Justice O’Connor’s plurality opinion concluded that due process entitled Hamdi to a meaningful opportunity to contest the factual basis for his detention. Justice Scalia (joined by Justice Stevens) dissented from the Court’s holding, but he did so by adopting a position that was more restrictive than O’Connor’s of executive authority. According to Scalia, unless Congress has suspended the writ of habeas corpus, the federal government cannot detain an American citizen without charge but must instead prosecute him for a federal crime or release him.

Murphy spends 2-1/2 pages (pp. 318-320*) discussing Scalia’s Hamdi dissent, but he gets everything wrong. For example:

1. Murphy presents the dissent as supposed evidence of Scalia’s “unwavering support for a powerful American presidency.” But among the nine justices Scalia (and Stevens) adopted the position that was most restrictive of executive authority.

2. Murphy contends that Scalia argued “in favor of a ‘blank check’ on behalf of total presidential power” during wartime. Scalia argues precisely the opposite. As he puts it in his concluding paragraph:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it. 

(Murphy actually quotes this passage but somehow doesn’t understand it.)

3. Murphy claims that Scalia concluded that “Hamdi was a traitor who was working with the enemy in times of war, and thus was not afforded the same protections” as other citizens. This is doubly wrong:

What Scalia says is that whereas enemy aliens can (probably) be indefinitely detained, the “tradition with respect to American citizens … has been quite different. Citizens aiding the enemy have been treated as traitors subject to the criminal process.” (Emphasis added.) And if they are not prosecuted, they are to be released. In other words, Scalia would have accorded Hamdi the same protections as other citizens.

Further, Scalia nowhere asserts that “Hamdi was a traitor.” Scalia merely recites the undisputed fact that Hamdi was “imprisoned because the Government believes he participated in the waging of war against the United States.”  (Emphasis added.)

4. Murphy claims that “In Scalia’s world, whatever George W. Bush wanted to do in the ‘War on Terror’ should not be second-guessed by his judicial colleagues.” Murphy proceeds to quote four sentences from Scalia’s dissent but leaves the poor reader hopelessly confused by failing to include Scalia’s kicker:

If civil rights are to be curtailed during wartime, it must be done openly and democratically, as the Constitution requires [i.e., by congressional suspension of habeas corpus], rather than by silent erosion through an opinion of this Court.

In short, Scalia is objecting to O’Connor’s “silent erosion” of the civil rights of American citizens, including those classed as enemy combatants, and to the failure of his colleagues to stand against the executive’s curtailment of those rights.

* * *

It’s very strange that a “scholar of American Constitutional law” (as his Wikipedia page puts it) could so badly misread a case that he addresses in such detail. I doubt that simple incompetence provides the explanation. Instead, Murphy’s incompetence seems bias-driven and result-oriented. Indeed, Murphy displays a dogged tendency throughout his biography to contend that the evidence supports whatever thesis he is positing even when it plainly doesn’t. When it comes to Hamdi, Murphy had somehow already so convinced himself of Scalia’s “unwavering support for a powerful American presidency” that he seems to have been unable to recognize that Scalia’s dissent contradicted, and thus required modification of, that overbroad thesis.

* Update: In the final book, the corresponding page numbers are 310-312. (This post and the rest of the first seven in my series were based on the uncorrected proof. As I explain in my Part 8 post, the changes made in the final book affect two points in my posts.)

Bruce Allen Murphy’s Scalia: A Court of One—Part 1



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[Update (5/28): See also Parts 2, 3, 4, 5, 6, 7, and 8.]

National Review has invited me to review Lafayette College professor Bruce Allen Murphy’s forthcoming biography of Justice Scalia, titled Scalia: A Court of One. (The book’s release date is June 10.) As time permits, I’m going to blog about the book in a series of posts, in part as an exercise in developing and refining my thoughts for the magazine review, in part as a vehicle for comments and elaboration that I won’t have space for in the review.

As I highlighted when National Review asked me to review the book, I certainly don’t claim to be a neutral observer on matters relating to Justice Scalia. Among other things, I’m a former law clerk of his, an enthusiastic admirer of his work, and a frequent defender of his in the blogosphere.

That said, I’m going to do my best in this series to pass over those points that I think that Murphy gets wrong but that fall within the broad range of fair and intelligent commentary. I instead intend to highlight various (but certainly not all) matters that fall outside that broad range.

Hint: Do not waste your time or money on this book.

(The version of the book that I’ve read is the “uncorrected proof,” so it’s conceivable—but, in most instances, I think highly unlikely—that the errors I identify will have been corrected in the final book.)

This Day in Liberal Judicial Activism—April 21



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1969—In his majority opinion in Shapiro v. Thompson, Justice Brennan rules that state and D.C. laws that deny welfare assistance to residents of less than a year violate a constitutional right to travel interstate. Brennan’s usual ally, Chief Justice Warren, dissents on the ground that Congress had authorized the one-year residency requirement. In a separate dissent, Justice Harlan objects that he “know[s] of nothing which entitles this Court to pick out particular human activities, characterize them as ‘fundamental,’ and give them added protection under an unusually stringent equal protection test.” More broadly, Harlan observes:

“Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.”

Eleven Things about Justice Thomas



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Over at the progressive blog, Crooked Timber, Corey Robin lists “Eleven Things You Did Not Know About Clarence Thomas.”  The items Robin lists shouldn’t surprise avid court watchers, or others who have paid much attention to the conservative justice.  Judging from the comments, however, several of the items were quite a revelation to CT’s readership.  I can only imagine the surprise if Robin had blogged on Justice Thomas’s jurisprudence, further challenging the caricature of Clarence Thomas that continues to dominate so much liberal commentary about him.

Update: Apparently this is a whiny post.

This Day in Liberal Judicial Activism—April 20



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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 will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.

This Day in Liberal Judicial Activism—April 19



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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.  

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