Bench Memos

NRO’s home for judicial news and analysis.

Justice Kennedy and Ernest Hemingway


By the standards of Supreme Court justices, Anthony Kennedy is a painfully bad writer. I’d think that’s a proposition that would earn a consensus across the ideological spectrum. So I was especially amused—but, given his pompous self-regard, not surprised—to read this passage from a Wall Street Journal article yesterday about the use of adverbs in legal writing:

On the Supreme Court, Associate Justice Anthony Kennedy has assiduously sought to banish [adverbs] from his own prose.

“I do not like adverbs,” he once explained in an interview with [legal-writing guru Bryan] Garner. “I noticed once that Hemingway had no adverbs, or very few, very few. And I think adverbs are a cop-out,” he said.

Avoiding adverbs “forces you to confront the significance of your word choice,” Justice Kennedy said. “You just discipline yourself to choose your words more carefully.”

Ah, yes, what a careful and disciplined writer Kennedy is.

I’m reliably informed that Kennedy does indeed have an (irrational) animus against adverbs ending in ly and that he instructs his law clerks to avoid them. But rather than simply drop the adverbial sense, Kennedy instead substitutes wordier adverbial phrases or rewrites the passage more awkwardly.

A quick review of one of his opinions (Lee v. Weisman) provides a few apparent examples:

… provisions the Fourteenth Amendment makes applicable with full force [instead of fully applicable] to the States and their school districts. 

High school graduations are such an integral part of American cultural life that we can with confidence [instead of confidently] describe their customary features.

It has been the custom of Providence school officials to provide invited clergy with a pamphlet …. [instead of Providence school officials have customarily provided]

Similarly, Kennedy routinely writes “with respect, I dissent” rather than “I respectfully dissent,” even in contexts in which the former is markedly more awkward: e.g., “For these reasons, and with respect, I dissent” and “That is why, with respect, I dissent.”

But Kennedy’s recent brief concurrence in Hobby Lobby has a surprising number of –ly adverbs, including three in the last full paragraph (unduly, closely, precisely). That’s yet another indication that he wrote that murky opinion in a hurry.

The EEOC on Criminal Background Checks


Do as we say and not as we do, says the EEOC. In fact, don’t even ask what we do.


An Honest Pro-SSM Family-Law Scholar


More for those who care whether the evident triumph of the judicial redefinition of marriage is constitutionally legitimate:

Law professor and family-law scholar James G. Dwyer, who “strongly support[s] extending legal marriage to same-sex couples” but who “recognize[s] the distinction between something being the right thing to do and its being a matter of constitutional right,” has just published his near-final draft of a new article titled “Same-Sex Cynicism and the Self-Defeating Pursuit of Social Acceptance Through Litigation.” I haven’t yet digested the entire article, so for now I’ll just highlight these excerpts from his introduction:

[T]raditional marriage laws should easily pass rational basis review (even if “with bite”), if only judges could grasp and accurately characterize the state interest that actually differentiates same-sex couples from opposite-sex couples. The stream of victories for the Movement principally reflects weak lawyering by defenders of state laws, systematic distortion of the state’s long-recognized responsible-procreation aim by plaintiffs’ attorneys and sympathetic judges, and widespread adoption of counter-arguments so obviously flawed it seems unlikely the advocates or judges expressing them actually believe what they are saying. Judges must fear that regardless of what reason, precepts of democratic governance, or constitutional doctrine might counsel, if they rule against same-sex marriage they will be viewed ever after as having been on “the wrong side of history.” Willful obfuscation by liberal academics posing as `friends of the court’ might also have played a role.…

There is, then, much of what might fairly be characterized as cynicism coursing through the veins of same-sex-marriage advocacy and decision making, with little concern for larger political principles or intellectual integrity, and little interest in securing legal marriage for same-sex couples by convincing fellow citizens and their representatives, even among those with the power and responsibility to fix problems in state law by majoritarian decision making after public deliberation. The end result will be that same-sex marriage spreads throughout the United States on a tidal wave of unprincipled judicial fiat, culminating in a Supreme Court decision devoid of clear and intelligible rationale.

Why care, if one supports same-sex marriage? Apart from pollyannaish concern for the rule of law, and without repeating all that others have said about likely backlash, there is the fundamental problem … that courts cannot deliver what LGBT persons seem to want most –dignity. Court victories are hollow victories for the LGBT community, failing to deliver the societal respect they seek, and in fact removing the opportunity for collective expression of such respect through voluntary legislative reform or popular referendum. What they get is not acceptance by the people with whom they share a neighborhood, a political community, a State, and a nation. Rather, they get the power to force something on those people. They deserve better. 

John Finnis on Posner on Marriage


Except to those who mistake power for truth, the evident triumph of the judicial redefinition of marriage doesn’t speak to the question whether that triumph is constitutionally legitimate. For the reasons I’ve spelled out in dozens (if not hundreds) of lengthy posts, I believe that the answer to that question is clearly no. (The redefinition of marriage through the democratic processes is a very different matter.)

For those interested in the constitutional question, as well as in the consequences of getting that question wrong, I’ll highlight legal philosopher John Finnis’s essay on Public Discourse today, titled “The Profound Injustice of Judge Posner on Marriage.” Among other things, Finnis argues (much as I did in these posts) that Seventh Circuit judge Richard Posner, in his recent ruling against the marriage laws of Indiana and Wisconsin, “did not present [the states’] argument with even minimal integrity.”

Finnis also ties the judicial imposition of same-sex “marriage” to the utterly insane transgender movement that is underway (a recent example of which involves directing teachers not to refer to boys and girls as boys and girls but instead to call them “purple penguins”):

The equality that demands same-sex marriage demands just as imperiously that all social recognition of the distinction between mothers and fathers—of the paternal and the maternal, the masculine and the feminine, and of the sexual identity of everyone as male or female—must be systematically expunged from our schools and social life, to be replaced by the lies and seductions of “gender identities” on the ever more blurry rainbow spectrum. The resultant miseries and losses will reach into every family, and wound Indiana and Wisconsin to the very heart of their people.

This Day in Liberal Judicial Activism—October 9


1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.” 


This Day in Liberal Judicial Activism—October 8


2006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.” 

Assistant SG Undermines Justice Ginsburg’s Hobby Lobby Dissent


In a little-noticed Supreme Court argument today, the government admitted something quite important. The case is Holt v. Hobbs, which involves a claim under the Religious Land Use and Institutionalized Persons Act (RLUIPA) by a state prisoner seeking to maintain a religiously mandated beard. In Hobby Lobby v. Burwell (2014), if you recall, one of Justice Ginsburg’s key arguments in dissent was that the Religious Freedom Restoration Act (RFRA) merely reinstates case law prior to the Supreme Court’s decision in Employment Division v. Smith (1990) rather than imposing actual strict scrutiny on all of federal law.

This morning during the government’s argument, Justices Kagan and Ginsburg were shadowboxing with the Supreme Court’s majority decision in Hobby Lobby. On pages 24–26, for instance, Justices Kagan and Scalia sparred about whether the cost of religious accommodation would affect the analysis, with the federal government’s lawyer steadfastly defending the text of the statute.

But the really interesting exchange came a couple of pages earlier, on pages 21–24 of the transcript. Justice Ginsburg asked whether pre-RLUIPA case law was intact or whether it had been overruled by RLUIPA:

JUSTICE GINSBURG: Mr. Yang, before you sit down, your brief lists a whole series of cases on page 14 that were decided before RLUIPA. Safley and a bunch of others. Are all those practices which we approved up for grabs now under RLUIPA? There – there were restrictions on receipt of publications was one.

MR. YANG: I think the analysis is different now. It has – it could be litigated. Any of these claims could be litigated. The State would then have the burden of coming forward to show that the restriction would, in fact, be a least restrictive means of –

JUSTICE GINSBURG: So they would – all those that we approved, correspondence limitations, all those would have to be looked at anew under the RLUIPA standard.

MR. YANG: I think that’s right, because if you were to go back to pre-RLUIPA case law, no one would doubt that a State could, in fact, prohibit a 1/2-inch beard under the prior constitutional standards. But Congress has set a higher bar and it imposes upon States the obligation to come forward to explain and justify it.

This is an ironic twist. The government is here arguing that the religious liberty statute imposed a more protective standard than did the pre-statute case law, that is, strict scrutiny. That ought to imply similar treatment of its sister statute RFRA, which uses nearly identical wording to RLUIPA. But in Hobby Lobby, the government argued (and Justice Ginsburg concluded) that RFRA imposed a less protective standard inferred from pre-Smith case law, even though RFRA used precise language describing strict scrutiny.

It’s certainly interesting to see Justices Ginsburg and Kagan doing their best to drive a wedge between RFRA and RLUIPA, but it’s even more interesting to see the federal government’s lawyer resolutely refusing to take the bait.

Update: An earlier version of the headline indicated that the government lawyer was Deputy Solicitor General, not Assistant Solicitor General. 

Dred Scott and Same-Sex Marriage


Ian Millhiser of ThinkProgress is grievously offended that in a post here yesterday, I likened the judicial imposition of same-sex marriage to the Dred Scott decision of 1857.  Millhiser can claim to have mastered just one mode of argument, the ad hominem, so let me enlighten him further.

1.  Like Dred Scott, judicial decisions in favor of same-sex marriage needlessly divide the country on an important moral issue about which people differ, and could otherwise debate their differences in the democratic process, on the pretext that there is a genuine constitutional issue in the cases.

2.  Like Dred Scott, such decisions rest on transparently fallacious legal reasoning with no connection to the Constitution’s words, historic meaning, or underlying principles.

3.  Like Dred Scott, these decisions rely, in part, on the conflation of the due process clause with a constitutionally ungrounded and so far unexplained power of the judiciary to decide what is “arbitrary” or “reasonable” or “just” in legislation, known by the laughable oxymoron “substantive due process.”

4.  Like Dred Scott, decisions for same-sex marriage rely on a false anthropology that drives a political decision made by judges.  In Dred Scott it was the false idea that some human beings can own other human beings, and that a democratic people cannot say otherwise.  In the same-sex marriage rulings it is the false idea that men can marry men, and women can marry women, and that democratic peoples cannot say otherwise.

5.  Like Dred Scott, same-sex marriage rulings are a harbinger of further depredations, by courts and others, on human freedom in other dimensions.  In 1857, it was the freedom to live in a country where slavery was minimized and at least arguably on its way to extinction.  Today, it is the freedom to live, work, and learn in communities, schools, universities, and other organizations in which people can live the truth about marriage, for religious or other moral reasons.

6.  Like Dred Scott, same-sex marriage rulings, for all the reasons above, amount to a comprehensive threat to republican government, raising the question Lincoln asked in his First Inaugural Address, whether the American people are entitled to govern themselves, or must surrender to government by an “eminent tribunal” of judicial despots.

Here endeth the lesson for Mr. Millhiser.

Yet Another Summary Reversal of Ninth Circuit in AEDPA Case


Buried amidst yesterday’s Supreme Court news was yet another unanimous summary reversal (in Lopez v. Smith) of a Ninth Circuit ruling in a case presenting a simple application of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, when a state prisoner claims that a state court misapplied federal law, a federal court may grant habeas relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” With manifest exasperation, the per curiam opinion of the Court states that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

In case you’re keeping score at home, the author of the Ninth Circuit opinion was not Stephen Reinhardt this time but was instead Sidney Thomas (joined by Obama appointee Andrew Hurwitz and Bush 43 district judge Ralph Beistline). As you may recall, Thomas, a Wyoming Montana native, was trotted out as a supposed moderate candidate for the Stevens vacancy that Elena Kagan ended up filling. I documented at the time that, country roots notwithstanding, he’s just Reinhardt dressed up in a cowboy hat

Why the Court Denied Review


For what it’s worth, here’s my theory explaining yesterday’s order denying review in the SSM cases:

One or more of the three conservative justices who might most be expected to object to denial—that is, Scalia, Thomas, or Alito—instead concluded that denial was the best course. Why? Because that justice (or those justices) became convinced that Kennedy was beyond persuasion and that he was a certain fifth vote to invent a constitutional right to same-sex marriage. On that understanding, the least-worst option would be to deny review and thus (for the time being, at least) prevent the Supreme Court from placing its formal imprimatur on the developments below.

I think that this is the only theory that adequately explains why none of these three justices publicly registered a dissent. In particular, I don’t think that a competing theory—that the Chief Justice voted to deny but that Scalia, Thomas, and Alito all voted to grant—can explain the absence of a public dissent.

I don’t think that there’s any difficulty explaining why the four liberals would go along with the denial. Even if they’re equally confident of Kennedy, it’s much easier from their perspective to let the lower courts do the spadework and to intervene only if and when a court rules against a constitutional SSM right.

Today’s Decision Not to Decide


Ed Whelan is surely right to glimpse “fatigue and resignation among the conservative justices” in today’s denial of certiorari in seven same-sex marriage cases, from five states covered by three federal circuit courts of appeals.  The fact that none of them saw fit to publish a dissent from the cert denial is deeply disappointing.

The implications of today’s decision not to decide are very grave.  First, as Ed noted earlier, same-sex marriage will now have a secure place in the laws of the five states from which the jettisoned petitions came: Virginia, Indiana, Wisconsin, Oklahoma, and Utah.  The Fourth, Seventh, and Tenth Circuits cover a total of fourteen states, including several that have not adopted same-sex marriage (or had it foisted on them by judges state or federal).  Same-sex marriage proponents are now guaranteed quick victories in those states.

In the lower courts there has been some wrangling about whether “doctrinal development” has overtaken and undercut the precedent of Baker v. Nelson, a 1972 holding of the Supreme Court that a claimed right of same-sex marriage failed even to present a substantial question of federal constitutional law.  Judges in the lower courts will now feel free—and might infer that they should feel free—to consign Baker to the dustbin of history.

The damage to marriage as an institution, to the family as the linchpin of our culture, to freedom itself, especially the religious freedom of dissenters from the redefinition of marriage—all this will be reckoned up over time as a consequence of today’s refusal by the justices to take any of the cases that have so far come up to it.  But the cert denials also evince a deep disrespect for the rule of law, for the Constitution, and for the people’s right of self-government.

Perhaps it is best, in the view of some two or three (or even four) of the justices, to take a loss in some of the states today, rather than risk a loss in a ruling that nationalizes same-sex marriage next spring or summer.  But do the people in the five states whose petitions were denied today have no right even to have their arguments heard?  The courts in these three circuits wrote various forms of rhetorical twaddle to justify their imposition of a spurious constitutional right on those states.  What is the ground of the right to same-sex marriage?  Is it the equal protection clause (as the Seventh Circuit seems to believe)?  Or the due process clause (which the Fourth appears to lean toward)?  Or some penumbras-from-emanations “fundamental right” that partakes equally of both (which seems to be the view of the Tenth)?  Who knows?  The judges want a result, and legal reasoning is such a nuisance.  Now those states are stuck with that result, without a chance to argue their cases in the Supreme Court.

The Republican Party was founded in the 1850s with its first platform (in the 1856 presidential election) denouncing slavery and polygamy, both of which the party wanted the federal government to outlaw where it had power to do so, in the territories.  These were the “twin relics of barbarism.”  One year later, after Dred Scott, the Republican Party added the defense of republican government against judicial tyranny to its portfolio of fundamental principles.  The GOP was founded as a party standing for human liberty, the sanctity of the family, and a free self-governing people.  As we re-enact a slow-motion Dred Scott for the twenty-first century, it remains to be seen whether any political party in America will continue to stand for those principles.


Vexing Problems with Apple’s Encryption Scheme


Last week Stewart Baker posted a mini-op-ed over at the Volokh Conspiracy that he had contributed to a debate hosted by the New York Times about Apple’s plans to encrypt the data on most iPhones, making it impossible for Apple to give law enforcement (or anyone else) access to the phone with or without a search warrant. The technology that Apple intends to use would scramble all data on the phone so that only the owner of the phone could decrypt it. (Google is rolling out similar measures.)

Stewart Baker’s main criticism of this plan is simple: Encryption is a bad idea if you care about enforcing the law:

Most Americans believe in privacy from government searches, but not for criminals. The Constitution protects a citizen’s “houses, papers and effects” only until a judge finds probable cause that the citizen has committed a crime. This year, the Supreme Court ruled that the police need a warrant to search cellphones seized at the time of arrest. But with Apple’s new encryption, probable cause and a warrant will be of little help to the police who seize a suspect’s iPhone and want to search it.

That decision should not be left to Apple alone. And it won’t be.

Baker goes on to argue that companies won’t adopt iPhone technology like this because they need to be able to read their employees’ business communications and enforce regulatory compliance policies. He also points out that the desire to sell iPhones in authoritarian regimes may end up forcing Apple to compromise the security of their phones, ironically, only on behalf of governments that are less respectful of privacy than the United States.

What’s at stake in Apple’s decision? It’s true that defensive encryption has a price. As FBI director James Comey argued last week, the same encryption measures that protect phone data from nosy coworkers also protect it from law-enforcement agents executing a lawful search warrant. In some cases, this may mean that evidence on the phone is totally inaccessible because the phone’s owner refuses to fork over the decryption key. Some investigations and prosecutions would be impaired. In cases involving production of child pornography or terrorism, the costs of device encryption would be significant. In a small number of cases, encryption could make the difference between life and death. In still fewer cases, the consequences could be catastrophic.

But it’s not illegal for Apple to make its phones more secure, and encryption would directly benefit its customers.

Keep reading this post . . .

Prosecutorial Discretion, Part Three: The Immigration Debate and Some Concluding Thoughts


This is the third and last post in my series about prosecutorial discretion, which is the legal ability of the executive not to act. Part One discussed the nature and origins of criminal prosecutorial discretion in the pre-Constitution common law and the disputed origins of non-criminal nonenforcement discretion. Part Two laid out some of the crucial limits — constitutional and statutory — on inaction.

For Part Three, I will discuss briefly how the legal principles from the previous posts apply to one of today’s most controversial policy topics: immigration and the deferred-action program. I will then conclude with some thoughts on the law.

1. Example: Immigration Nonenforcement

In 2012, the Obama administration established a policy of non-deportation for certain individuals who had come to the United States as children. In the memorandum, then–Secretary of Homeland Security Janet Napolitano described her authority for the program as “the exercise of our prosecutorial discretion” and set out criteria for individuals whom the Department of Homeland Security would not target for immigration enforcement. 

This policy led to the creation of a program called Deferred Action for Childhood Arrivals (DACA), in which an individual who meets the secretary’s stated criteria would not be the subject of immigration enforcement proceedings. After registering under DACA and applying for work authorization, the individual would also receive an official work authorization from DHS. (For simplicity, I will only discuss the deferred-action portion of the program, not the extension of work authorization.)

At the outset, it’s important to understand that DHS’s characterization of its authority for DACA as “prosecutorial discretion” is technically incorrect. Violations of immigration law are largely civil in nature, so “prosecutorial” discretion is irrelevant. DACA would not control in criminal matters, nor could it, since that’s the purview of the Department of Justice. Although the act of entering the country illegally (at least the first time) is a petty misdemeanor and illegal entry after deportation is a felony, deportation decisions (which are the action that is being deferred) are made civilly through immigration courts.

As a civil-enforcement matter, DHS’s decision not to enforce (at least not yet) therefore sits under the line of cases following Heckler v. Chaney (1985), which means that a court presumptively won’t review the agency’s failure to act unless the governing statute sets out criteria to guide the exercise of its discretion. Has the Immigration and Nationality Act (INA) set out such criteria?

At first blush, this looks like a tough question. The INA is long and complex, so courts have tended to find discretion for the immigration-enforcement agencies on a wide variety of issues. For a partial list, see pages 10–13 and accompanying footnotes of the CRS report on this subject. (The recent Supreme Court case of Arizona v. United States (2012) also makes sweeping statements about the breadth of discretion under the INA, but those statements are inconclusive because the Court is describing the reach of federal power over immigration, not just the executive branch’s power.)

Keep reading this post . . .

Re: Kennedy’s Stealth Victory


I can see two reasons why one or more of the conservative justices might have voted against reviewing the state SSM cases. If you are certain or nearly certain that Justice Kennedy will go south, denying review (1) minimizes the near-term damage and leaves open the slender possibility that a Court with slightly altered membership might in the not-so-distant future refrain from inventing a national SSM right, and (2) prevents Justice Kennedy from issuing another insufferable opinion replete with “mystery of human life” blather. I’d give more weight to the second than the first.

I’m inclined to think that the lack of a public dissent signals a real fatigue and resignation among the conservative justices.

Kennedy’s Stealth Victory


At least one of the four conservative justices on the Supreme Court voted against reviewing the state SSM cases, and none of the four has registered a peep over the Court’s irresponsible denial of review in the cases. As a result, Justice Kennedy’s stew of confusion in his anti-DOMA ruling has been allowed to lead to the judicial imposition of SSM in Virginia, Utah, Oklahoma, Indiana, and Wisconsin—and presumably in all the other states in the Fourth, Seventh, and Tenth Circuits.

In the event that another federal appellate court rules in favor of state marriage laws, the Court’s action seems to pre-ordain that the Court, if it grants review, would overturn such a ruling. For it is difficult to imagine that the Court would let the current judgments against marriage go permanently into effect in those states and then rule in cases from other states that there is no constitutional SSM right. [Update: I’ve tweaked the preceding sentence.] (It’s conceivable, I suppose, that the Court could deny review of a federal appellate ruling upholding state marriage laws—and thus permit a sort of weird federalism (weird because it depends  primarily on the composition of the appellate panel)—but that seems very unlikely, both because there would then be a circuit conflict and because the liberal justices and Kennedy are unlikely not to press their evident advantage.)

Supreme Court Denies Review in SSM Cases


Given how poorly reasoned the Supreme Court’s anti-DOMA decision was, I haven’t harbored any particular hope for how the Court would decide the marriage cases from the states. But the Court’s denial of review in all the pending cases strikes me as grossly irresponsible, as a huge abdication of duty on the part of at least six justices.

This Day in Liberal Judicial Activism—October 5


1995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.

Judge Stephen Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Alex Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinski’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures.

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

This Day in Liberal Judicial Activism—October 3


2013—“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

A sound observation, to be sure. But what’s remarkable is that the person uttering it is Justice Anthony Kennedy, who throughout his tenure on the Supreme Court has done as much as any justice to intrude willy-nilly on the democratic processes on the “most serious issues of the day.”

Jeffrey Toobin, Chicken Little


Hmmm. A New Yorker article by Jeffrey Toobin titled “On Hobby Lobby, Ginsburg Was Right.” Gee, what are the chances that the article might have a wee error or two?

Let’s see:

1. Toobin grandiosely opens with a quote from Oliver Wendell Holmes Jr. that he manages to botch in every way possible. He doesn’t even get the quote right: The actual phrase from the Holmes dissent he links to is “exercise a kind of hydraulic pressure” (not “effect”). Further, Holmes didn’t say that “important Supreme Court decisions” exercise that kind of pressure. Rather, he said that “immediate interests” exercise that pressure on decisions.

More fundamentally, the lesson that Toobin attributes to Holmes—that important cases “invariably have a profound influence”—is the opposite of Holmes’s point:

[G]reat cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. [Emphasis added.] 

Thus, Holmes is better read as inviting Toobin to reflect whether “some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment” is causing Toobin to exaggerate the importance of Hobby Lobby.

Indeed, whereas Toobin attempts to use the supposed consequences of the Hobby Lobby ruling as evidence that the majority got it wrong, Holmes, at the end of the very paragraph from which Toobin draws his misquoted passage, embraces a robust textualism that rejects Toobin’s approach:

[W]hile at times judges need for their work the training of economists or statesmen, and must act in view of their foresight of consequences, yet when their task is to interpret and apply the words of a statute, their function is merely academic to begin with — to read English intelligently — and a consideration of consequences comes into play, if at all, only when the meaning of the words used is open to reasonable doubt. [Emphasis added.]

2. Toobin’s primary item in support of his claim that Justice Ginsburg “has the better of the argument” on the consequences of Hobby Lobby (not on its reasoning, which he doesn’t address) is, believe it or not, a district-court ruling on a discovery dispute in an administrative subpoena enforcement action. The ruling had nothing to do with the religious-freedom rights of a for-profit corporation, but instead involved whether the leader of a church had to answer “questions posed to him about the internal affairs and organization” of the church.

Toobin thinks it meaningful that the court’s ruling cited Hobby Lobby, but it did so only for uncontroversial propositions:

Toobin complains that the “substantial burden” standard that the court used was “a standard used in Hobby Lobby.” Well, of course it was, as that is the standard set forth in the federal Religious Freedom Restoration Act.

Toobin says that the “judge, also echoing Hobby Lobby, said he needed only to determine that [the leader’s] views were ‘sincere’ in order to uphold his claim.” But everyone in that case agreed, just as everyone in Hobby Lobby agreed, that the question whether a person’s religious belief is eligible for protection under RFRA turns on whether the person sincerely holds that belief. That elementary religious-liberty principle was clearly established more than thirty years ago, in Thomas v. Review Board (1981), if not earlier. Ginsburg never contests it. Toobin is flatly wrong, moreover, to contend that that’s all the judge below “needed … in order to uphold [the leader’s] claim” (as well as to imply that Hobby Lobby would provide any support for such a conclusion). The judge instead applied the RFRA framework.

In short, the district-court ruling is in no discernible sense a consequence of Hobby Lobby, and there is every reason to believe that it would have been written exactly the same way (with different citations for its elementary propositions) if Hobby Lobby had never been decided or if Hobby Lobby had been decided Ginsburg’s way.

3. Toobin also claims that the Court’s Wheaton College order, issued just days after Hobby Lobby, indicates that “the implications of Hobby Lobby were broader than Alito originally let on.” But, as I’ve explained, the Wheaton College order is entirely compatible with Hobby Lobby.  Further, Ginsburg’s primary complaint in Hobby Lobby is against “commercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs.” Wheaton College is a religious nonprofit, so it’s difficult to see how its religious-liberty protections vindicate Ginsburg’s parade of horribles.

4. Evidently because it doesn’t fit his narrative, Toobin neglects the most prominent application of Hobby Lobby so far—the Fifth Circuit’s ruling in McAllen Grace Brethren Church v. Salazar that the Department of the Interior had so far failed to provide sufficient evidence to justify its policy of limiting permits for the possession of eagle feathers to members of federally recognized tribes. Yes, by “reaffirm[ing]” and “clarif[ying]” that the “burden on the government in demonstrating the least restrictive means test is a heavy burden,” Hobby Lobby might well make it more difficult for federal bureaucrats to take eagle feathers away from members of American Indian religions who regard them as sacred.

5. Toobin’s essay includes other surprising errors. For example:

a. Toobin says that “the A.C.A. requires firms with more than fifty employees to provide insurance that includes birth-control coverage, or else pay a fine.” But it was the Obama administration, not Congress, that imposed the HHS mandate. (Ginsburg has made the same gaffe.) Further, the HHS mandate doesn’t apply to employers with “grandfathered plans.”

b. Toobin says, “There was an exemption already for religious institutions.” In fact, the very narrow exemption, which was part of the HHS mandate (rather than something “already” in existence) primarily covers houses of worship. It does not extend to religious institutions generally. That’s why Wheaton College and other religious nonprofits have had to litigate against the so-called “accommodation.”

Supreme Court Grants Review (Again) in ‘Disparate Impact’ Housing Case


Here’s hoping the third time’s the charm: The Supreme Court today granted review in a case presenting the issue of whether “disparate impact” claims can be brought under the Fair Housing Act. This is the third term in a row the Court has done so; in the preceding two, the Left succeeded in scuttling the cases before the Court could decide them. Here’s an amicus brief, filed by Pacific Legal Foundation and joined by my organization (the Center for Equal Opportunity) among others, discussing the case and why the Court should hear it.



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