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Bench Memos

NRO’s home for judicial news and analysis.

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



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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



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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.

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Strange Bedfellows Support Religious Freedom



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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.

This Day in Liberal Judicial Activism—June 9



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2008—With opinions about to be issued concerning the en banc petition in Ricci v. DeStefano, Second Circuit judge Sonia Sotomayor and her panel colleagues—fellow Clinton appointees Rosemary Pooler and Robert Sack—evidently realize that they have failed in their bid to bury the claims by 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. They therefore convert their nonprecedential summary order dismissing the firefighters’ claims into an otherwise virtually identical per curiam precedential ruling dismissing the claims.

Three days later, the Second Circuit issues an order denying en banc rehearing by a 7-6 vote. In a blistering dissent, Judge José Cabranes (also a Clinton appointee) condemns the panel’s mistreatment of the firefighters’ claims. As he sums it up:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

The Supreme Court will proceed to grant review and, one year later—while Sotomayor’s Supreme Court nomination is pending—will reverse the panel decision.

This Day in Liberal Judicial Activism—June 7



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1965— In Griswold v. Connecticut, the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced. In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas (see This Day for April 4, 1939) infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern. Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt (see This Day for March 22, 1972) would confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.  

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.”

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Mich. Task Force Makes a Solid Effort to Clarify and Restrict the State Bar’s Political Advocacy



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Back in February I noted that the Michigan supreme court had created a task force to examine whether the state bar was using mandatory dues for partisan political activities in violation of the U.S. Supreme Court’s holding in Keller v. State Bar of California. The task force released its report this week, including more than a hundred pages of appendices.

All in all, it’s not bad. The task force stopped short of recommending that bar membership become optional, but it did propose stricter procedures and rules governing the state bar’s political advocacy. Specifically, the task force recommended a “strict interpretation” of Keller, public notice about advocacy, and changes to bar governance.

According to the report, however, some Michigan lawyers apparently don’t agree that Keller should restrict their ability to promote their political views using mandatory dues. The report stated:

At times, the State Bar is precluded from taking actions favored by a majority of its members that it would be free to take but for its mandatory status. The member input received by the Task Force indicates that this distinction is not fully appreciated by the membership. As a mandatory bar, the State Bar is neither a trade association nor a union, and it is not free to act solely, or even primarily, in the self-interest of its members. We urge the Court to use this moment of heightened attention to clarify the role of the State Bar by emphasizing that its primary role is to serve the public good. [emphasis added]

To that end, the report recommended a rigorous public vetting process for any advocacy by the state bar. In situations where optional-membership sections of the state bar engage in advocacy that ostensibly wouldn’t violate Keller, the report recommended that each section be required to make clear that it does not speak for the whole bar, lest it be confused for representing the views of the mandatory bar.

The report also provided several recent examples of positions that the state bar has taken in violation of Keller, presumably promoting its own financial interests:

Representative examples include: opposing legislation allowing a trial court to award costs and actual attorney fees to a party who prevails in an action against the Department of Environmental Quality (2007); supporting a bill to provide compensation of up to $60,000 per year for each year a person wrongfully convicted of a crime is imprisoned (2013); opposing in principle that the circuit court family divisions notify the secretary of state about truancy dispositions (2005); and opposing a constitutional amendment that would prohibit a trial court’s granting of bail to a person charged with a felony who is in the United States illegally (2008). In some instances, the State Bar has promoted legislation based on an “historic” position rather than on a reasoned Keller analysis, while in others, it took positions based on attenuated, speculative reasoning. The reasoning that a position is permissible because it would increase or diminish public confidence in the court system appears to be the rationale for the most dubiously Keller-permissible positions.

This last, vague sentence probably alludes to the state bar’s advocacy against anonymous speech in judicial elections, a cause du jour for many on the left, along with many other examples listed in the report. As they show, concerns about the political capture of state bars are well founded. The full report is worth reading by every lawyer, if for no other reason than to see what shenanigans your own state bar may be up to.

I can’t resist one more quote:

Concern for members’ First Amendment rights should be at the forefront of the State Bar’s decisionmaking even when the use of mandatory dues are not at issue. This is a moment to make clear to State Bar members, to legislators, and to the public that there are boundaries to the State Bar’s advocacy, and that the State Bar does not have, nor can it have, a political agenda.

Let’s hope that Missouri, Oklahoma, and other states follow Michigan’s example and respect their members’ freedom of association.

 

This Day in Liberal Judicial Activism—June 5



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1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime is voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it misimagines contemporary standards to be. (See This Day for February 18, 1972.) 

Argentine Doubletalk?



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In the litigation arising from Argentina’s default on its bond obligations, I’ve highlighted Argentina’s stated intention to defy any adverse judgment that it receives from American courts even as it tries to petition the Supreme Court for relief. Here’s the latest development:

On Monday of last week, in its reply brief (pages *1-*2) in the Supreme Court on a pending writ of certiorari, Argentina seemed to deny that it would defy any adverse order. A Reuters reporter who has been closely following the litigation hailed the apparent about-face as “an historic concession” by the “most notorious deadbeat in the U.S. courts.”

But then on Friday, the bondholders presented to a federal district judge a six-page memo from Argentina’s lawyers to Argentina’s Minister of Economy and Public Finance that (at least in the English translation available here) presents “not paying the holdouts nor the holders of restructured debt” as a very live option—one that would have the advantage of “triggering a default ordered by the courts,” thus freeing Argentina from “any legal restriction that prohibits it from restructuring all of the debt in default.” To her credit, the Reuters reporter now says that she “may have been too quick to believe” Argentina’s apparent pledge.

While I’m at it, I’ll also call attention to this amicus brief from six former federal judges (including former Attorney General Michael Mukasey) that argues—along the same line that I have—that the Supreme Court should deny review because “Argentina is behaving like a fugitive who appeals his conviction while simultaneously refusing to submit to the courts’ authority.” 

This Day in Liberal Judicial Activism—June 3



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1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim.

In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.” 

Bond v. United States: Third Circuit Reversed Because Federalism



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The Supreme Court’s decision in Bond v. United States is the right result, but for the wrong reason. (Carrie Severino’s commentary on the oral arguments is here; the Judicial Education Project’s amicus brief is here.) The Third Circuit had upheld Bond’s conviction for violating a federal statute (that executed a chemical weapons treaty) by wiping toxic chemicals on a romantic rival’s doorknob, among other places. The majority, with Chief Justice Roberts writing, reversed and held that the federal statute did not reach the defendant’s conduct because Congress had not made clear that the statute could reach local conduct. Under a new principle of statutory interpretation (might we call it “interpretive federalism”?), the statute was held not to apply to simple assault, which had already been prohibited by state law.

Although the majority did not reach the constitutional question, it properly reaffirmed the role of the states in prosecuting crimes, like this one, that are “purely local.” The Court was correct that this dispute is provincial: it belongs on daytime TV, not in federal court. As such, the majority’s decision in Bond is a strong reminder to Congress that its powers are limited by the Constitution’s structure.

But even though the Court’s decision struck the right balance of federal and state powers in this case, it should have derived that balance from the Constitution’s text, not some vague new principle of statutory interpretation. The right answer, had the majority been willing to take a more courageous road, would have been to declare the statute unconstitutional. Justice Scalia’s opinion concurring in the judgment rightly notes the majority’s “antitextualism” in dodging the plain reach of the statute to avoid the constitutional issue:

Inverting Bass and Jones, it starts with the federalism-related consequences of the statute’s meaning and reasons backwards, holding that, if the statute has what the Court considers a disruptive effect on the “federal-state balance” of criminal jurisdiction, that effect causes the text, even if clear on its face, to be ambiguous. Just ponder what the Court says: “[The Act’s] ambiguity derives from the improbably broad reach of the key statutory definition . . . the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so . . . .” (emphasis added). Imagine what future courts can do with that judge-empowering principle: Whatever has improbably broad, deeply serious, and apparently unnecessary consequences . . . is ambiguous! (citations omitted)

The statute was as broad as could be, but as Justice Scalia pointed out, the federalism-ish interpretive principle used by the majority to narrow it will “bedevil” the courts for years to come as they try to figure out which statutes have sufficient indicia of federal intent to rebut the presumption that a statute doesn’t interfere with the states:

But there is nothing either (1) realistic or (2) well known about the presumption the Court shoves down the throat of a resisting statute today. Who in the world would have thought that a definition is inoperative if it contradicts ordinary meaning? When this statute was enacted, there was not yet a “Bond presumption” to that effect—though presumably Congress will have to take account of the Bond presumption in the future, perhaps by adding at the end of all its definitions that depart from ordinary connotation “and we really mean it.”

Moreover, as Justice Thomas observed, the clear history and text of the Constitution’s Treaty Clause shows that it only reaches matters of international, not domestic, concern:

Yet to interpret the Treaty Power as extending to every conceivable domestic subject matter—even matters with­out any nexus to foreign relations—would destroy the basic constitutional distinction between domestic and foreign powers. It would also lodge in the Federal Government the potential for a “police power” over all aspects of American life. A treaty-based power of that magnitude—no less than a plenary power of legislation—would threaten the liberties that derive from the diffusion of sovereign power. And a treaty-based police power would pose an even greater threat when exercised through a self-executing treaty because it would circumvent the role of the House of Rep­resentatives in the legislative process. (citations and quotations omitted)

For these reasons, as Justice Alito noted, this criminal statute was not a necessary and proper exercise of the Treaty Power.

As the 2016 presidential campaign inches toward us, it’s a good time to be thinking about what sort of nominees the potential candidates will appoint. The Chief’s opinion in Bond is a reminder that it’s not enough to have judicial nominees who can state a proper judicial philosophy; they must also have the courage to put it into practice. Will the nominee appoint good-old-boy loyalists? Will he appoint well-credentialed professionals with no track record? Or will he look for nominees who are truly committed to the proper use of traditional legal methods? 

Anyone can parrot right answers about how to decide cases, but it takes intestinal fortitude to actually decide them that way.

Chris Christie’s Supreme Court Pick: Even When He’s Right, He’s Wrong



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When Chris Christie broke his promise to fix New Jersey’s Supreme Court — by reappointing Chief Justice Stuart Rabner until 2030 — one of his spokesmen tried to explain, halfheartedly, that “People should hold their views on the chief justice until we get a longer track record and until we see where he comes down on many issues.”

The biggest problem with this excuse (aside from the fact that Rabner has been on the bench for seven years) is that it’s less important “where” a judge comes down on a legal issue than it is “how” he gets there. In other words, the main question is Rabner’s judicial philosophy: Can he put aside his own policy preferences and faithfully apply the law? For Rabner, the answer is clearly “no.”

An excellent example of this inability to distance himself from his policy preferences is on full display in Sussex Commons Associates, LLC v. Rutgers, a case about the scope of the state’s open records statute. In New Jersey, as in other states, state law provides for public access to the records of state agencies, with various exceptions. The plaintiffs were developers seeking discovery of communications between an environmental law clinic run out of Rutgers Law School-Newark, the Rutgers Environmental Litigation Clinic (RELC), and the defendant.

Writing for the majority, Rabner waxes eloquent about general principles of independence that may apply to Rutgers. But then, in the first sentence of the next section, notes that “this lawsuit is not about whether Rutgers University is subject to” the open records statute. If that issue isn’t relevant, though, what were the preceding four paragraphs all about?

Anyway, when Rabner finally gets to his “analysis,” it’s highly subjective: After citing all of the technical statutory provisions, Rabner ignores them and spends most of his time balancing the pros and cons of ruling either way. Ultimately, Rabner ends up deciding that the open records law doesn’t cover clinical legal records because:

Nothing suggests that the Legislature intended those results . . ., and we do not believe the Legislature meant to harm clinical legal programs when it drafted that important law. . . . To the contrary, the Legislature has repeatedly demonstrated its intent to support Rutgers and higher education for the benefit of the citizens of this State.

But of course an open-records law isn’t intended to “harm” or undermine “support” for state entities. And in any case, Rabner has skipped over the actual text of the law.

To top it all off, instead of satisfying himself that the statutory text is sufficient, Rabner puts the burden back on the legislature: “The Legislature is free to act if we have misread its intent.” Gee, Chief Justice Rabner, I’m sure the Legislature is glad you gave them permission to disagree with you. This isn’t legal analysis; it’s sophistry. 

The concurring opinion by Justice Albin, by contrast, shows how to do basic statutory interpretation properly: after determining that the open-records statute covers the records, determine whether a statutory exemption applies. As it turns out, there are three. There was no need for Rabner’s subjective purposivism; the plain text of the statute held the answers.

Indulge me in a hypothetical about the consequences of Rabner’s approach. Let’s say, for instance, that a group of activists files an open-records request in support of a viewpoint that Rabner agrees with, and indeed, has publicly endorsed. Is there any reason to doubt that Rabner would give in to the temptation to say “we do not believe the Legislature meant to harm” the side he happens to agree with?

And Chris Christie re-appointed this guy. Rabner may have got the result right by accident in Sussex Commons Associates, but when a potential Republican presidential candidate starts breaking his promises by re-appointing a guy who can’t recognize when the legislature said something very specific about the content of the law, we’ve got bigger problems.

The difference between “intent” and “meaning” could not be more important. As Justice Scalia and Bryan Garner write in Reading Law, “the state of the assembly’s collective psychology is a hopeless stew of intentions.” If judges go beyond determining the meaning of the words used in the statute, they are just engaging in “policy-based lawmaking,” not interpretation.

Governor Christie may not share these principles, which would explain why he has failed to appoint judges who stand for any approach to jurisprudence other than opposition to the Abbott line of cases. It’s no big step to conclude that Abbott and its progeny are woefully misguided, but it also matters how and why a judge comes to that conclusion. As Rabner’s opinions show, the judge’s reasoning shows whether he’s interpreting the law or just making it up as he goes along.

Review of Murphy Biography of Scalia



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Having highlighted the ill-deserved praise that Bruce Allen Murphy’s new biography of Justice Scalia has received from Dahlia Lithwick and Andrew Cohen, I’m pleased to note this review by University Bookman editor Gerald Russello.

As Russello puts it, the book is “[f]illed with errors of logic and analysis and a clear bias against Justice Scalia and what he supposedly stands for,” and Murphy’s claim about the influence of Scalia’s religious beliefs on his judging “nicely combines a caricature of conservatism with a revival of old-fashioned anti-Catholicism.”

My own review—which draws from my series of blog posts (see Parts 1234, 5, 6, 7, and 8)—will be in the next issue of National Review, I believe.

Re: Ruling in Bond v. United States



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More on today’s ruling in Bond v. United States:

In his majority opinion, the Chief Justice declares that the Chemical Weapons Convention Implementation Act is ambiguous on whether it “reaches a purely local crime.” But rather than point to any relevant part of the Act that is fairly susceptible of more than one meaning, the Chief states that

the ambiguity derives from the improbably broad reach of the key statutory definition give the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism.

In his opinion concurring in the judgment, Scalia concludes that the “meaning of the Act is plain,” and he says that it is only the majority’s “result-driven antitextualism [that] befogs what is evident.” Scalia laments the “judge-empowering principle” that will find ambiguity in “[w]hatever has improbably broad, deeply serious, and apparently unnecessary consequences.” He complains, in particular, that the majority finds that “‘dissonance’ between ordinary meaning and the unambiguous words of a definition [‘chemical weapon’] is to be resolved in favor of ordinary meaning.” (Both Thomas and Alito join this part of Scalia’s​ opinion.) 

Reaching the merits of the constitutional claim, Scalia would reject the dictum of Missouri v. Holland (1920) (any statute implementing a valid treaty is justified as a “necessary and proper means to execute the powers of the Government”) and would hold instead that Congress’s ability to implement treaties must derive from its ordinary Article I, section 8 powers. (Thomas also joins this part.)

In another opinion concurring in the judgment, Thomas (joined by Scalia and Alito) concludes that the Treaty Power “can be used to arrange intercourse with other nations, but not to regulate purely domestic affairs.”

I very much wish that the constitutional principles set forth in Scalia’s and Thomas’s opinions were the settled understanding of the Court.

Ruling in Bond v. United States



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When Carol Anne Bond discovered that her husband had impregnated her best friend, Myrlinda Haynes, she set out to punish Haynes by spreading irritant chemicals on surfaces that she expected Haynes to touch—and somehow ended up being prosecuted by federal authorities for violation of the federal statute (the Chemical Weapons Convention Implementation Act of 1998) that Congress enacted to implement the Chemical Weapons Convention.

Bond v. United States presented the important question whether there are any structural limits on Congress’s power to implement a valid treaty. But in its ruling today the Court found it unnecessary to reach this question. Instead—I’m relying largely on the syllabus of the opinion, as I haven’t yet had time to read the case in full—the Chief Justice relied on principles of federalism to read the statute so that it didn’t cover Bond’s conduct. The Chief was joined by Kennedy and the four liberals. 

Scalia, Thomas, and Alito concurred in the judgment; they would have found unconstitutional the statute’s application to Bond.

This Day in Liberal Judicial Activism—June 1



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1992—In Davis v. Davis, the Tennessee Supreme Court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail.…” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton will appoint Daughtrey to the Sixth Circuit.)

This Day in Liberal Judicial Activism—May 31



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1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

High on My List of Best Book Reviews Ever



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This is strictly for “law nerds, I expect, but quite by accident while looking for something else in a research database, I came across the book review below and found it truly hilarious.  It appeared in the American Law Register (the lineal ancestor of today’s University of Pennsylvania Law Review) in October 1857, under the regular “Book Notices feature.  The unsigned piece, presumably by the ALR’s editor, concerned the most recent volume reporting decisions of the Supreme Court, at a time before the modern United States Reports had begun to be published.  Instead a reporter of decisions was engaged by the Court to publish its decisions, and he in turn engaged a private printer to produce the volumes.  Whether the final product was the most complete, accurate, and professionally prepared report of cases depended on the vicissitudes of these arrangements.  In 1857 the Court’s reporter of decisions seems not to have given entire satisfaction with the volume that reported the Dred Scott case . . .

Keep reading this post . . .

Norm Ornstein’s Revisionist History



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Norm Ornstein has written a piece for the Atlantic calling for the introduction of term limits for U.S. Supreme Court justices. The impetus of the article is not a mystery: Supreme Court opinions have not been going the way Ornstein would like for some time and changing the Court through term limits would allow what he sees as a much-needed culling of “partisans” from the Court to occur. Ornstein’s piece manages to be wrong both logically and factually.

Ornstein’s logic is off — he suggests that Brown v. Board of Education would be decided differently by the Roberts court based on Chief Justice Roberts’ statement that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” and that this would leave “separate but equal” as the standard.  But “separate but equal” was the government discriminating on race by forcing children to attend schools on the basis of skin color and not convenience, location, or the students’ desires. Instead, “separate but equal” would have probably stayed in place had the Court applied Ornstein’s preferred approach of extreme deference to elected officials and “trends in politics and society,” as integration was wildly unpopular in many parts of the country at the time.

Ornstein thinks that term limits would give politicians a better chance to end up on the bench and thus result in more justices who would be less divided and more “accurately reflect[] the changes and judgments of society.”  Putting aside the fact the elected branches are currently pretty divided themselves, Ornstein’s embrace of politicians on the bench is factually wrong — former politicians on the bench can make difficult and politically controversial decisions just as well as former judges. For instance, Ornstein suggests that Citizens United would have come out differently with if there were more politicians on the bench, and he celebrates justices like Warren, Douglas, and Minton, among others, who had political experience prior to coming to the Court.

Ornstein seems to have forgotten that Citizens United was not the first time the law at issue — a ban on political expenditures by corporations and unions — had come before the Court. The Court had previously considered the ban twice and avoided the constitutional issue both times. In 1958, in U.S. v. International Union United Automobile, Aircraft, and Agricultural Implement Workers of America, three justices dissented and would have reached the constitutional issue and struck the law down. These three justices were Warren, Douglas, and Hugo Black, a former U.S. senator.  In the dissent, Justice Douglas, a former Chairman of the Securities and Exchange Commission, called the law “a broadside assault on the freedom of political expression guaranteed by the First Amendment.” He wrote:

Some may think that one group or another should not express its views in an election because it is too powerful, because it advocates unpopular ideas, or because it has a record of lawless action.  But these are not justifications for withholding First Amendment rights from any group — labor or corporate.  First Amendment rights are part of the heritage of all persons and groups in this country.  They are not to be dispensed or withheld merely because we or the Congress thinks the person or group is worth or unworthy.

Similarly, when the Court considered the law in 1948, four justices dissented in the case and would have reached the constitutional question and struck the law down.  Although Justice Rutledge, a former academic and judge, wrote the dissent, he was joined by Justices Black, Douglas, and Murphy, who was a former U.S. Attorney General, Governor of Michigan, Mayor of Detroit, and Governor-General of the Philippines. Justice Rutledge’s dissent stated:

A statute which, in the claimed interest of free and honest elections, curtails the very freedoms that make possible exercise of the franchise by an informed and thinking electorate, and does this by indiscriminate blanketing of every expenditure made in connection with an election, serving as a prior restraint upon expression not in fact forbidden as well as upon what is, cannot be squared with the First Amendment.

These politicians grasped something that Ornstein does not.  When the Constitution commands that “Congress shall make no law . . . abridging freedom of speech,” the Framers were specifically preventing the government from passing laws that curtailed speech, regardless of “trends” in society.  It is the job of judges in constitutional cases to apply the Bill of Rights, especially in the face of public opposition — that is when adherence to constitutional foundations is most needed.  Otherwise, the ability to speak comes only at the sufferance of those in power and gives the government the ability to neuter the First Amendment when it is politically desirable. Former politicians like Warren, Murphy, Douglas, and Black understood this well, as did the justices in the majority in Citizens United. Before he tries to change an institution established in 1789, Ornstein might want to consider that fact too.  

 Bill Maurer is an executive director with the Institute for Justice.

Setting the Record Straight in Arkansas



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Earlier this week my organization, JCN, released the TV ad below in Arkansas highlighting the fact that politician Leslie Rutledge opposes the adoption of a “Stand Your Ground” law in Arkansas, a topic of considerable debate in the state and of interest to JCN given its other work on Second Amendment issues.

 

Rutledge’s response is even worse than I anticipated: She claims to support the right to self defense “whenever and wherever” necessary, which is quite simply not what Arkansas law currently provides, though she says that it does. 

It’s crystal clear that Rutledge opposed a “Stand Your Ground” law. Here’s what she told KFSM Channel 5 News when asked last year about the “duty to retreat” imposed by Arkansas law:

 

The rest of the interview is available here.  

In response to that interview, Arkansas Representative Nate Bell asked Rutledge on Facebook:

Leslie, did I understand your position on open carry and stand your ground correctly? Do you oppose both?

But Rutledge dodged the question, providing this mealy-mouthed non-answer:

Representative Nate Bell, as I mentioned in the interview, I am a strong supporter of the 2nd Amendment as well as a gun owner. What I said, Representative, is that as Attorney General, I will defend and enforce the laws that you all in the legislature pass.

I expected Rutledge to spin her previous position after the TV ad went up, but I didn’t expect her to try to rewrite history. 

Rutledge now apparently says that if the legislature wants to add additional provisions to the law, she will work with them to make sure it is “accurate, unambiguous, and constitutionally sound.” I’m curious whom she plans to appoint as advisers, since, as Erick Erickson noted this morning on RedState, Rutledge believes it would be discrimination “if you’re outright saying we’re going to hire conservative attorneys.”

Misreading Alito?



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The Wall Street Journal’s Law Blog cites “several statistics experts” who contend that Justice Alito made two statistical errors in his recent death-penalty dissent in Hall v. Florida.

As for the first alleged error: I certainly don’t claim to be a statistics expert, but I wonder if the critics are simply misreading Alito’s point. On the matter of margin of error (or “SEM”) for IQ tests, Alito objects that the majority opinion “unjustifiably assumes a blanket (or very common) error measurement of 5.” He says that assumption is what leads to the majority’s holding that a defendant with an IQ as high as 75—five points above the cutoff for intellectual disability—must be permitted to introduce additional evidence of intellectual disability. He points out that SEMs “vary by IQ test and test-taker.” (Dissent at 17.)

According to Law Blog (evidently paraphrasing the statistics experts), the “5-point standard adopted by the majority is a margin of error based on a 95% confidence level.” But the majority doesn’t say that in the critical passage (maj. op. at 20) that Alito objects to.

The majority, much earlier in its opinion (maj. op. at 11), does state that an IQ score of 71 “is generally considered to reflect a range between 66 and 76 with 95% confidence.” But, so far as I can tell, it doesn’t incorporate that 95% confidence measure into the passage that Alito objects to.

If the majority means to condition the 5-point standard on a 95% confidence level, it would have been easy for it to say so. And, indeed, one would have expected it to say so in response to Alito.

I’m willing to bet that death-penalty opponents and disabilities activists aren’t going to read the majority opinion as conditioning the 5-point standard on a 95% confidence level. Indeed, I wonder if the IQ expert who worked on an amicus brief for the prisoner will change his tune once he realizes that his supposed “gotcha” moment, if correct, would make it more difficult for other prisoners to get relief. [Deleted as erroneous within minutes of original posting.]

The second error that Alito allegedly made was to refer to “the 66% confidence interval” for so-called 1 SEM, when the correct figure apparently is 68%. But as Law Blog states, the 66% figure “comes from a court brief”—by the highly esteemed Seth Waxman and his Wilmer Cutler team, no less—“that repeats what appears to be a misprint in a recent edition of the [American Association on Intellectual and Development Disabilities’] intellectual disability manual.” So if that’s an error, it’s strange to pin it on Alito.

Update: A Supreme Court practitioner writes in defense of Alito on the first alleged error:

I think the bloggers and so-called experts are confusing a legal dispute for a factual error. Alito is well aware that, even when the SEM is 2.16, that means a 74.32 will fall w/in a 95% confidence interval, because 95% confidence is 2 SEM’s away. He says this expressly. His point is a legal one — regardless of whether 95% confidence is the gold standard for statisticians, there’s no *constitutional* justification for requiring the state to surpass 95% confidence, because the defendant is the one who bears the burden of proof. And that’s all the more true for a 75 cut-off, which is *more* than 95% confidence on Hall’s particular test.

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