Bench Memos

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Dereliction of Duty Is DOJ Senior Official’s Proudest Achievement


No one in the Obama administration’s Department of Justice has much to be proud of, but still ….

According to this Washington Post article, outgoing Associate Attorney General Tony West says that “his most meaningful accomplishment during 5½ years in the Obama administration was his role in the Justice Department’s decision to stop backing the Defense of Marriage Act.”

In his previous role as head of DOJ’s civil division, West first helped sabotage DOJ’s purported defense of DOMA and then engineered DOJ’s formal abandonment of its defense. It speaks volumes about the politicization of the rule of law that West is proud of his role in the Obama administration’s failure to adhere to DOJ’s longstanding practice of vigorously defending the constitutionality of any federal law for which reasonable arguments can be offered. (And, no, the Supreme Court’s 5-4 decision against DOMA did not vindicate West’s betrayal of his duty.)

This Day in Liberal Judicial Activism—September 4


1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances. Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”


What the November Elections Mean for the Federal Courts of Appeals


Two months before an election that might put control of the Senate in Republican hands, I figured I’d highlight President Obama’s record on judicial appointments for the federal appellate courts as well as the current composition (by political party of the appointing president) of those courts.

As things now stand, President Obama has appointed exactly the same number of federal appellate judges—52—as President George W. Bush appointed in his first six years. [Clarification (9/12): The Bush total includes one short-serving recess appointee; his six-year total for confirmed federal appellate judges was 51.] (Obama will surpass the Bush six-year total if the Senate, before the end of the year, confirms the pending nomination of Jill Pryor to the Eleventh Circuit.) [Update (9/9): The Senate confirmed Pryor on 9/8.] 

As a result, nine of the thirteen federal courts of appeals (D.C., First, Second, Third, Fourth, Tenth, Eleventh, and Federal Circuit) now have a majority of Democratic appointees among their active judges. When Obama took office, only one (Ninth) did. (I’m relying on the data from these two sites for my comparison.)

Facing a Democratic-controlled Senate, Bush appointed only ten federal appellate judges in 2007 and 2008 (and one of those, Sixth Circuit appointee Helene White, was in reality a Democratic pick, much as Fourth Circuit appointee Roger Gregory had been). So that took Bush’s eight-year total to 62 61 confirmed federal appellate nominees. [Ive tweaked the preceding sentence consistent with my clarification in the second paragraph.]

If Republicans take control of the Senate this November, they should be able to hold Obama to Bush’s eight-year total. But if they don’t, Obama is likely to vastly exceed the Bush total.

For starters, there are currently eight vacancies (including the one to which Pryor has been nominated). In addition, Seventh Circuit judge John Tinder (a Republican appointee) has announced that he will take senior status in February 2015. (The party split on the Seventh Circuit is currently seven Republicans and three Democrats, but the ideological divide is much closer and might already lean left.)

Much more importantly, by my count there are some 34 Democratic appointees who are or will soon—by some time next year—be eligible to take senior status. It’s not easy to predict which eligible judges will elect to go senior. But now that the filibuster has been abolished, if the Senate remains in Democratic hands, any judge who takes senior status by the end of 2015 could confidently expect Obama to appoint his or her successor. Any such appointments wouldn’t further alter the party composition of the circuits, but they would entrench those seats in Democratic hands for another 15 to 20 years (and thus make it more difficult for the next Republican president to achieve a majority of Republican appointees).

Then, too, there will almost certainly be some—perhaps many—additional vacancies created, one way or another, by Republican appointees. If we look only at the courts of appeals that still have a majority of Republican appointees, we see six Republican appointees on the Fifth Circuit who are eligible to take senior status, five on the Sixth Circuit who are eligible or will be during 2015, five more (besides Tinder) on the Seventh Circuit (including four who are already older than 75), and three on the Eighth Circuit. It wouldn’t take much to flip all of these courts to majorities of Democratic appointees.

Bottom line: Any hopes that judicial conservatives have for preventing further damage to the courts of appeals depend heavily on Republicans winning control of the Senate this November.

Strong Ruling Upholding Louisiana’s Marriage Laws


Earlier today, federal district judge Martin Feldman issued a ruling that cogently rejects a challenge to Louisiana’s marriage laws. Among other things, Judge Feldman concludes that rational-basis scrutiny applies to plaintiffs’ Equal Protection and Due Process Claims and that Louisiana’s laws amply satisfy rational-basis review. Invoking principles of federalism and democracy, Feldman declines to follow those courts that, in a “pageant of empathy,” “appear to have assumed the mantle of a legislative body.”

Cato’s Supreme Court Symposium


I’m pleased to be taking part in the Cato Institute’s Supreme Court symposium on Constitution Day, September 17. The symposium provides both a review of the past term and a preview of the upcoming term. I’ve been invited to discuss the Hobby Lobby ruling.

The featured event of the symposium is a lecture by Seventh Circuit judge Diane Sykes, titled “Judicial Minimalism and Its Limits.” (Speaking of Hobby Lobby: Sykes, you might recall, wrote an excellent opinion holding that the HHS mandate violated challengers’ RFRA rights.)

The full program for the symposium is available here, along with registration information.


Methinks the Simon Lazarus Doth Protest Too Much


Last week, Simon Lazarus published an editorial that probably set a record in a new category: Most Words Discussing a Brief Opposing a Petition for Rehearing En Banc. The editorial discusses Halbig v. Burwell and its sister case, King v. Burwell. (Halbig and King, you probably remember, are the two leading challenges to Obamacare tax subsidies that the IRS is giving to all state and federal exchanges, whether or not the exchange was, in the words of the statute, “established by the State.”)

There’s a lot to laugh about in the piece, especially the use of overheated adjectives. The headline calls the plaintiffs “brazen” while the URL calls them “shameless.” In the first sentence of the piece, Lazarus characterizes the plaintiffs’ brief’s title as “forbidding.” The brief title? Really? Also amusing: his use of the word “blinkered,” which (perhaps coincidentally) appears in the government’s petition for rehearing, where it was an oddly disrespectful description of the panel decision. Lazarus even throws in the old canard that “textualists” have an “intense preoccupation with dictionary definitions.” (Never mind that in Halbig and King, the key definitions are all set out in the statute itself.)

But Lazarus isn’t primarily interested in his old talking points about mean old textualists and their deviant affection for dictionaries. Rather, his main thrust is to talk liberals down off the ledge of purposivism:

“Purposivist” disciples may be tempted to seize upon the ACA premium assistance challenges to skewer their philosophical adversaries. Indeed, the day after Judge Griffith’s decision, University of California law professor Richard Hasen put the blame on “unfeeling” Scalian textualism, spotlighting the purposivist “counterargument that courts have an obligation to make laws work … especially these days, when Congress is not working.” But thus broadening the stakes in these lawsuits is a mistake. The better—and accurate—tack is that opponents’ route to interpreting federal exchanges into self-immolation is so hyper-blinkered that it flouts bedrock axioms common to all legitimate interpretational theologies.

I think Lazarus’s piece has two possible interpretations, one good, one bad. On the one hand, he is telling liberals that they should stick to the canons of statutory interpretation. It’s always a good thing if the debate involves the text of the statute that Congress actually passed, rather than the statute that Ezra Klein said they were passing.

But aside from citing Scalia’s formulation of the whole act canon and other standard interpretive principles, Lazarus doesn’t really explain how looking at the entire ACA “as a whole” would inevitably lead to his preferred result in these cases. After all, the whole act canon doesn’t mean that courts get to disregard the plain meaning of a provision that has a plausible, non-absurd purpose. Moreover, Judge Edwards relied extensively on the minutiae of the ACA’s policy goals in his dissenting opinion, so it’s not as if the “purposive” approach to statutory interpretation is just some long-dead specter that conservative commentators are conjuring from the grave.

This leads to the second interpretation of his editorial, and one that will be received loud and clear by wild-eyed purposivists: Adopt the terminology of interpretation in these cases because you still might get what you want.

Here’s why. If the government wins by appealing to the whole act canon and its demand for “holistic” statutory interpretation, those principles must be redefined to play a much stronger role in the interpretive process, thus allowing courts to override a clear, textually unambiguous provision with other provisions (which is what the Fourth Circuit did in King). Implicitly redefining the whole act canon in this way would give purposivists everything they want and more. Think of it: If the government wins, purposivists would forevermore be able to cite Halbig and King for the proposition that general considerations like the whole act canon and context trump clear and unambiguous statutory text.

I’ve never met Simon Lazarus, and I take him at his word that he thinks the “accurate” view of the government’s case relies on standard interpretive methodology. I also look forward to seeing him file an amicus brief before the Supreme Court that makes a tight textual case. But it will be even more interesting to see how, or whether, he can formulate a version of the whole act canon that vindicates the government’s position without lapsing into the same purposivism that, quite rightly, makes him uncomfortable.

Stanley Kurtz on a Second Clinton Co-Presidency


The cover essay in the new issue of the Claremont Review of Books is a very interesting preview by my Ethics and Public Policy Center colleague Stanley Kurtz of what a “second Clinton co-presidency” would mean. As PowerLine’s Scott Johnson puts it, “No matter how much you know about Bill and Hillary, I think you are likely to learn something about them from Kurtz’s essay.” 

Here’s a taste: 

It was the first and only time in this country’s history that supreme executive authority had been simultaneously wielded by two people, man and wife. Bill was away on a foreign trip. That left his wife, who’d only recently rebuffed Henry Hyde’s bid to remove them both from power, in command of the nation’s domestic affairs. At this delicate juncture, Bill’s powerful spouse confided her innermost thoughts to a private diary she habitually kept close by and ready for burning in the event of discovery. Few Americans know anything of this diary’s contents, which can now be publicly revealed.

I refer, of course, to the private papers of Queen Mary II, who ruled England with her husband, King William III, from 1689 to 1694, an example of joint sovereignty unique in English history….

William and Mary are the exception that proves the rule. From ancient Rome to contemporary Latin America, history shows that in the absence of clear, hierarchical lines of authority, joint executive power tends to produce debilitating confusion and weakness….

Yet what if the deepest political problem in Hillary’s past has never been fully grasped? Legal and constitutional formalities aside, Bill and Hillary Clinton shared executive power. “Buy one, get one free,” Bill famously bragged during the 1992 presidential campaign. Hillary was not merely an important advisor but a true co-president, wielding far more consequential executive authority than, say, Mary II ever did. The results were disastrous, and are likely to be so again should the Clintons once more attempt to adapt their power-sharing arrangement to an American presidency expressly designed to exclude what the founders called a “plural executive.” 

This Day in Liberal Judicial Activism—September 2


2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively. In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit. Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure. 

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

This Day in Liberal Judicial Activism—August 30


1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.” Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.”

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees. Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…  Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism: According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.” Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.  

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court. Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.

Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation. In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks.

“Thuggery Wins”


That’s Eugene Volokh’s apt assessment of this execrable Sixth Circuit decision from Wednesday in which a divided panel conferred a heckler’s veto on an angry crowd at the 2012 Arab International Festival, which took place on the public streets of Dearborn, Michigan. The crowd responded violently to the proselytizing activities—some of which were, as Volokh puts it, “pretty rude”—of a group of Christian evangelists. As Judge Eric L. Clay sums it up in his dissent:

This is an easy case. Plaintiffs Ruben Israel and the Bible Believers came to the 2012 Arab International Festival (“Festival”) to exercise their sincerely held religious beliefs. Those beliefs compelled Plaintiffs to hurl offensive words and display offensive images at a crowd made up predominantly of children. Defendants themselves admit that these words and images were protected by the Constitution. A video shows Defendant Deputy Chief Dennis Richardson telling Israel that the Bible Believers must leave the Festival under pain of arrest because “what you are saying to them [the crowd], and they are saying back to you is creating danger.” This is a clear heckler’s veto, breaching the principle that “hostile public reaction does not cause the forfeiture of the constitutional protection afforded a speaker’s message so long as the speaker does not go beyond mere persuasion and advocacy of ideas [but rather] attempts to incite to riot.”

NARAL Lottery for Ticket to Ginsburg Event


NARAL Pro-Choice America is offering its members a “once in a lifetime opportunity” to attend an “invite-only” George Washington law school event with “Pro-Choice Rockstar Ruth Bader Ginsburg”:

NARAL email

Those who sign up for the ticket lottery and “tell one friend” to do so are “affirming [their] membership in NARAL Pro-Choice America.”


Congressional Black Caucus: Too Many Black Judges?


Live by the quota, die by the quota?

Eleven months ago, I discussed a New York Times article that reported that the Congressional Black Caucus was complaining that “out of 787 federal [judicial] positions, only 95 are held by black judges.”* As I pointed out:

Insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim. For the sake of argument, let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the four to five percent range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of federal judgeships. That would suggest a trivial disparity (again, even using a very favorable benchmark). Indeed, if the number of black judges grows by a mere four or five, blacks would be “overrepresented” on the federal judiciary.

Well, according to the Federal Judicial Center database search that I did today, there are now 104 black judges among the 813 filled (and “active”) federal judicial positions. That’s 12.8%—slightly exceeding the overall percentage of blacks in the U.S. population. So will the Congressional Black Caucus remain beholden to its quota mentality and urge President Obama not to nominate, and the Senate not to confirm, any more black judges (until the percentage falls to the quota level)?

* The Congressional Black Caucus’s numbers apparently excluded sitting judges who have taken senior status. So I’ve used the same measure.

Panel at American Political Science Association Meeting


On Friday morning, I will be taking part in a panel discussion on “The Recent Term of the Supreme Court” at the annual meeting of the American Political Science Association in D.C.. My fellow panelists are Hadley Arkes, Sanford Levinson, and John Eastman. The panel is sponsored by the Claremont Institute and will be moderated by Lee Liberman Otis of the Federalist Society.

Rival Certiorari Petitions on Fourth Circuit Ruling Against Virginia Marriage Laws


Last Friday, George E. Schaefer III, the Clerk of the Circuit Court of the City of Norfolk, filed an excellent certiorari petition seeking review of the divided Fourth Circuit panel ruling against Virginia’s marriage laws. Among other things, Schaefer makes a compelling case that the Court should prefer his petition to the petition filed by Virginia attorney general Mark Herring on behalf of the state registrar of vital records.

Herring has already irresponsibly abandoned his duty to defend Virginia’s marriage laws, so the Court’s interest in having the case vigorously briefed by both sides would not be served by granting his petition. Conversely, Schaefer is well represented by Kyle Duncan, a talented appellate lawyer (who, before starting his solo practice, was general counsel of the Becket Fund and, before that, solicitor general of Louisiana).

Here’s the introduction to Schaefer’s petition (reporter citations omitted):

This petition arises from a spiraling national controversy only this Court can resolve. That controversy, however, does not concern the merits of same-sex marriage. It does not even concern whether we will have same-sex marriage in the United States. We already do: a minority of States have recently adopted it through the democratic process. Rather, the controversy concerns whether the issue will be decided by state citizens or by judges.

Since this Court’s Windsor decision last year, a wave of courts has decreed that the Fourteenth Amendment compels States to recognize same-sex marriage. Yet Windsor itself taught that state citizens are free to make up their own minds about this issue by exercising their “historic and essential authority to define the marital relation.” These decisions, then, have not applied Windsor; they have subverted it. They have not enforced the Fourteenth Amendment; they have “demean[ed] … the democratic process.” Schuette v. Coalition to Defend Affirmative Action (2014) (op. of Kennedy, J.). They have not expanded freedom; they have reduced it.

Contrary to these mistaken decisions, the Fourteenth Amendment does not override “state sovereign choices” about whether to adopt same-sex marriage. This petition is the right vehicle to settle that issue. The petitioner, George Schaefer, is a circuit court clerk responsible for issuing marriage licenses and has been at the center of this controversy in Virginia from the beginning. The case has no standing defects. Nor are there any prudential standing issues with Schaefer’s petition. Unlike the Virginia Attorney General—who changed position mid-litigation and attacked Virginia’s marriage laws—Schaefer consistently defended those laws in the district court and on appeal, and would continue to do so vigorously in this Court.

The Court should grant Schaefer’s petition and rule that the decision of Virginia’s citizens to retain the traditional definition of marriage was “without doubt a proper exercise of [their] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.” Windsor.

Prosecutorial Discretion, Part One: Indisputably There, But Disputably from Where?


Prosecutorial discretion is a hot topic these days. The Obama administration couched its immigration non-enforcement policy decision in terms of prosecutorial discretion. Attorney General Holder announced a policy that henceforth, prosecutors would avoid charging crimes that carry mandatory minimum sentences. Are these proper or improper exercises of prosecutorial discretion? 

This is the first post in a three-part series giving a framework for understanding prosecutorial discretion. Part one will focus on its constitutional and statutory origins. Although everyone recognizes that prosecutorial discretion exists, there is little agreement about why it exists and where it comes from. Part two will examine its limits. Part three will note some of the policy concerns with its use (or overuse) and offer some concluding thoughts.

First, a bit of history. Prosecutorial discretion finds its historical origins in English criminal law. In colonial times, government prosecutors initiated criminal prosecutions, of course, but so could private victims. (Today, by contrast, the prosecuting attorney is invariably an agent of the government and retains all responsibility for criminal prosecutions.) In all cases, the colonial public prosecutor retained the power of nolle prosequi, that is, the right to decline a prosecution or end a pending prosecution, even if a private party had brought the prosecution in the first place. In such a decentralized system, the ability to decline to prosecute a crime was a given: The government could decline, and victims were under no obligation to bring or continue private criminal prosecutorial actions if the government declined to do so.

Although the adoption of the federal Constitution brought a different structure to national government while continuing many practices from the common law, the Constitution does not provide for a general power of prosecution or identify which branch (if any) should be responsible for prosecutions of federal crimes. In addition, the enumeration of legislative powers and the elimination of ex post facto laws put an end to the common-law criminal offenses that characterized the colonial era.

Congress therefore passed the Judiciary Act of 1789, which created a federal law enforcement structure, including district attorneys (U.S. Attorneys) charged with enforcement of federal law in every judicial district. The statute articulated these attorneys’ duty to prosecute “all delinquents” for federal crimes and offenses, even though federal prosecutors routinely exercised the power of nolle prosequi and declined to prosecute all crimes. The statute did not expressly prohibit citizens from bringing private prosecutions, but the practice of private prosecutions was never established in the federal system.

In general, an uncontroversial early federal practice is a good indicator of original meaning, whether of a statute or the Constitution. In this case, though, the Constitution and the Judiciary Act were passed close enough in time that it’s not clear whether prosecutorial discretion arises out of one or the other. And the lack of a clear textual grant of discretion in either statute or Constitution muddies the water further. If prosecutorial discretion arises out of the Constitution, then Congress and the courts are limited in their ability to cabin it. If prosecutorial discretion is statutory, by contrast, Congress’s ability to constrain discretion would be quite substantial. Let’s review some of the arguments.

Does prosecutorial discretion have a source in the Constitution? Some have suggested that it is a core component of “executive power.” In Heckler v. Chaney (1985), for instance, Justice Rehnquist described the decision not to indict as “a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution” under Article II, Section 3 to “take care” that the laws be faithfully executed. The Department of Justice takes a similar position, that prosecutorial discretion is constitutionally derived from the Constitution’s directive that the laws be “faithfully executed.” Or perhaps it’s necessary under the separation of powers. Justice Scalia took this view in his dissent in Morrison v. Olson (1988), writing that it was “the balancing of various legal, practical, and political considerations, none of which is absolute,” such that removing the “core prosecutorial function” from the control of the executive (in the form of an “independent counsel”) would violate the separation of powers.

Keep reading this post . . .

The Murk of Garrett Epps—Part 2


See Part 1

In his essay titled “The Twilight of Antonin Scalia,” Garrett Epps contends in particular that in his dissent from the Court’s anti-DOMA ruling in U.S. v. Windsor, Justice Scalia “made an important legal concession” that somehow “strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.” (Emphasis added.) Scalia’s dissent in Windsor, Epps argues, “may be remembered as the most influential opinion of his career.”

There are some serious problems with Epps’s contention.

First, the “important legal concession” that Epps ascribes to Scalia is a proposition that Scalia never advances. According to Epps, Scalia said that “opposition to same-sex marriage was based on a ‘bare desire to harm.’” (Emphasis added.) Not so. What Scalia says is that the “real rationale” of the Windsor majority “is that DOMA is motivated by ‘“bare desire to harm.”’” Scalia, of course, doesn’t accept this wild mischaracterization of DOMA, much less extend it to “opposition to same-sex marriage”; he in fact spends pages documenting that the charge is “quite untrue.”

Second, no “concession” that Scalia might make could in any event alter the meaning of the majority opinion “as a matter of law.” A majority opinion means what it says. When that meaning is unclear or contestable, dissents might influence how others, including lower-court judges, read the majority opinion. As Epps observes, some dissents—like the Chief Justice’s in Windsor—“seek to limit the majority opinion, suggesting ways that lower courts can work around it.” Others, like Scalia’s, emphasize how bad the majority opinion is and thus might have the effect of suggesting expansive readings of the majority opinion. But in neither case can a dissent change the meaning of the majority opinion “as a matter of law.” (My point may strike many readers as a formalist quibble, but I’m responding to what I understand to be Epps’s formalist argument (“as a matter of law”).)

Epps might instead have argued merely that Scalia’s account of the Windsor majority’s “real rationale” has influenced how lower courts have read Windsor. Such a claim might have some merit. (Who can know?) But I doubt it. For starters, so many of the lower-court judges seems to have been so hellbent on striking down state marriage laws that their invocations of Scalia’s dissent come across as oh-so-clever window-dressing. Further, contrary to what Epps conveys, Scalia expressly states that he does “not mean to suggest disagreement” with the Chief’s position that the Windsor majority “is based on federalism,” and he says that lower courts “should take the Court at its word and distinguish away” Windsor.

The Murk of Garrett Epps—Part 1


In an Atlantic essay titled “The Twilight of Antonin Scalia,” Garrett Epps displays that he has a severe case of Anti-Scalia Derangement Syndrome. Epps combines two bad arguments. His broader framing thesis is that Justice Scalia is no longer the “conservative wing’s alpha dog.” More specifically, he contends that Scalia “made an important legal concession” in his dissent in the Court’s anti-DOMA ruling in U.S. v. Windsor that, wonder of wonders, somehow “strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.”

I’ll address Epps’s framing thesis in this post and his more specific argument in the next.

There are two basic problems with Epps’s broader thesis. First, Epps obviously assumes that Scalia seeks to be the “conservative wing’s alpha dog.” I’m quite confident, by contrast, that Scalia would be delighted to have eight—or even four—originalist colleagues, irrespective whether they would overshadow him.

Second, Epps’s scanty evidence for Scalia’s supposed eclipse is that last term the “three most important conservative wins were written by Roberts and Alito” and that “Scalia’s most prominent appearance was in a bitter concurrence” (emphasis in original), in the recess-appointment case. But, given the configuration of the Court during his tenure, Scalia’s long-term influence has rarely come from majority opinions and instead has flowed most heavily from his concurrences and dissents. So there is nothing new or remarkable about the profile of Scalia’s set of opinions last term.

It’s too bad that Epps saved his (unintelligible) comparison of Scalia to Lucifer for the end, as he could have more clearly signaled the unwary reader how tendentious his piece is. I’ll limit myself in this post to two further examples:

Epps claims that when “[c]onfronted politely by a gay student,” Scalia “snapped” a response that Epps evidently mistakes to have been rude. Not so.

Epps claims that Scalia “has been unrelenting in opposing constitutional protections for gays and lesbians.” But contrary to what Epps asserts, Scalia, of course, has never taken the position that gays and lesbians don’t have the same general constitutional protections that all persons have. What has instead been at issue are questions like whether there is a fundamental constitutional right to homosexual sodomy and whether classifications based on sexual orientation are subjected to heightened scrutiny. Scalia’s originalism readily yields negative answers to those questions. To be clear: I don’t mean to slight the importance of such questions to gays and lesbians, but that’s no excuse for Epps’s sweeping overstatement.


This Day in Liberal Judicial Activism—August 26


2009—In what Fourth Amendment expert Orin Kerr describes as the “most free-wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” a limited en banc panel of the Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

One year later, in response to the Department of Justice’s petition for full en banc rehearing, the en banc panel will quietly amend its opinion to eliminate the set of new rules. 

Justice Ginsburg as Chatty Cathy—Part 4


In her recent National Law Journal interview, Justice Ginsburg somehow feels free to comment publicly on an issue that is currently before the Court (in the certiorari stage): what the Court’s anti-DOMA decision in United States v. Windsor portends for the battle against state marriage laws. Here’s the exchange:

NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity

I of course believe that the state marriage laws under attack treat individuals “with equal dignity.” But it seems quite clear that Ginsburg is broadcasting a very different message. And even if one very charitably assumes that she is not opining on the bottom line, why is she speaking out on the issue at all?

To take a wild hypothetical: Imagine for a moment that the National Law Journal had posed the question to Chief Justice Roberts rather than to Justice Ginsburg and that the Chief Justice had responded that Windsor’s “main theme is federalism.” I think that it’s very safe to say that the Chief Justice would have been roundly denounced for speaking out on an issue that is already before the Court.

Let’s set aside the question whether Ginsburg’s comments ought to require her to recuse herself. After more than two decades on the Court, does Ginsburg really not know when she ought to just be quiet? 

Justice Ginsburg as Chatty Cathy—Part 3


For more of Justice Ginsburg’s candid revelations of her thoroughly politicized approach to judging, let’s look at her thoughts on the death penalty (from this interview):

[1] I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. [2] If I had been on the court for Furman [ v. Georgia, 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. [3] I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those. [Bracketed numbers added]

Ginsburg gets off to a promising start, as she distinguishes between the policy question, left to legislative bodies, whether there should be a death penalty and the constitutional question whether the death penalty is permissible. But although she asserts that she has “always made [this] distinction,” she can’t adhere to it for more than a sentence.

Without offering any clues on how she might think that the death penalty could possibly be categorically unconstitutional, Ginsburg tells us that she, had she been on the Court in the mid-1970s, would have overruled legislative efforts to re-enact the death penalty in compliance with Furman. Her only explanation is blatantly political: such a ruling “would have been accepted” by the public, so why waste a “golden opportunity” to entrench her preferred policy position as a constitutional holding?

According to Ginsburg, the decision she “had to make” when she came on the Court years later was not whether the death penalty is in fact categorically unconstitutional, but rather whether she would unduly reduce her influence by taking that position. Perhaps (contrary to the suggestion in her first sentence)—and contemptible as the overall approach would be—Ginsburg does believe that the death penalty is unconstitutional but, in order not to take herself “out of the loop,” she routinely joins in decisions that affirm death sentences. She’s eager to be a “contributor” to “good death penalty decisions,” but from her discussion it would appear that her measure of whether a death penalty decision is “good” is not based on any assessment whether it comports with the Constitution but simply on whether it further limits application of the death penalty. 


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