Bench Memos

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Review of Murphy Biography of Scalia


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


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


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


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


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


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


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


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?


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.

Gerard Bradley on Town of Greece Ruling


Recommended reading: Writing for Public Discourse, law professor (and occasional Bench Memos contributor) Gerard V. Bradley celebrates Justice Kennedy’s recent majority opinion in Town of Greece v. Galloway as “the Court’s best piece of Establishment Clause work in decades—and a happy omen for religious liberty in our country.”

Among other things, Bradley praises the Court for treating the case as genuinely about prayer, not about “ceremonial deism,” and he is hopeful that the ruling has “inaugurated—or renewed, with a fresh commitment—a partnership between constitutional doctrine and historical practice.”

Philip Hamburger’s Is Administrative Law Unlawful?


Here’s an important new book that is very much worth reading: law professor Philip Hamburger’s Is Administrative Law Unlawful?

Hamburger’s answer to his title question is a resounding “yes,” at least as to that large part of “administrative law” that consists of rules or other edicts that purport to bind members of the public. Hamburger, a legal historian, extensively reviews English history to show that administrative law, far from being a novel development that the Constitution couldn’t anticipate, is just another manifestation of the king’s “prerogative” power that the Constitution was designed to protect against.

I’m about halfway through the book, so I’ll defer a fuller review until I’ve finished it. For now, I’ll highlight that the Cato Institute and the Federalist Society are hosting a book event for Hamburger next Thursday, June 5. (If you’re unable to attend, you can watch the event online.)

This Day in Liberal Judicial Activism—May 29


1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.” The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge. One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role. (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk? Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf. An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

Cornerstone, a New Blog on Religious Freedom


My friends at the Religious Freedom Project (at Georgetown University’s Berkley Center for Religion, Peace & World Affairs) have started a wonderful new blog, apparently the first ever devoted entirely to issues of religious freedom.  Called Cornerstone, the blog prominently features leading pieces on particular subjects to which responses are then posted.  So, for instance, the latest round features a lead-off piece by Notre Dame law professor (and Bench Memos friend) Richard Garnett, “Religious Freedom in Early America: Complicating the Common Narrative,” and in the coming days various commissioned responses to Rick will be posted.  Last week Baylor University’s Thomas Kidd led off with “The American Founding: Understanding the Connection between Religious and Civil Liberties,” and I was one of the respondents, along with Mark Noll, Marci Hamilton, and John Fea.  The week before that was a symposium on “Religious Freedom on the College Campus,” with contributions by students and teachers Kevin Sullivan, Gwen Brown, Viet Phuong Dao, Grant Jones, Aamir Hussain, and Kelly Thomas.  You get the idea.  With short, smart pieces by expert contributors, accessible but never shallow, Cornerstone is a destination to keep returning to for the best insights into religious freedom issues today.


Edward S. Corwin and “Judicial Review,” a Century Later


One hundred years ago, Princeton University Press published a little book so influential that today it is almost forgotten.  Yes, that sounds strange, but I’ll explain.  It was a collection of essays with the unassuming title The Doctrine of Judicial Review: Its Legal and Historical Basis and Other Essays.  The author was a young Princeton professor, Edward S. Corwin, who would go on to occupy the chair of the McCormick Professor of Jurisprudence once held by Woodrow Wilson (and now held by Robert P. George, familiar to readers here).  This was not Corwin’s first book, but it was his first to make a big splash, and its enduring influence came in his critique of Marbury v. Madison, which has been mimicked endlessly in the last century, and his historical and theoretical account of the power of “judicial review,” which has likewise gone into conventional wisdom.  That phrase “judicial review,” though not invented by Corwin, was not yet in common use as shorthand for “power of the federal judiciary to hold legislation unconstitutional.”  The expression had never been in the vocabulary of the founders or of the justices of the Supreme Court’s first century.  After Corwin’s book the use of the phrase spread like wildfire, but no one ever gave him credit for popularizing that crucial expression, whose adoption had a signal impact on the way people thought about the Supreme Court.  That was the influence to which I alluded above.  Corwin went on to one of the most distinguished careers in the twentieth century academic study of the Constitution and constitutional law, with many important books and articles to his credit, and the building on Princeton’s campus where the Politics department is housed is named for him.

Two weeks ago, Transaction Publishers published a new centennial edition of Corwin’s Doctrine of Judicial Review, which has long been out of print, with my new introduction–a critical review of Corwin’s whole career, tracing the evolution of his thought on the crucial subject of “judicial review,” what influence this phrase has had, and the enduring issues of the Supreme Court’s power that are papered over by conventional views of the subject.  I hope this new edition–both Corwin’s historically important work and my discussion of it–will be of interest to scholars, teachers, and students of constitutional law.

Andrew Cohen’s Praise for Murphy Biography of Scalia


In a review, legal analyst Andrew Cohen praises Bruce Allen Murphy’s forthcoming biography of Justice Scalia as a “fine new book” that is “very much worth buying and reading.”

Cohen notes my series of critical posts but doesn’t defend Murphy’s book against any of my criticisms. Instead, he says only that “a seven-part series … seems like an awful lot of energy to devote to a book Whelan declares you should neither buy nor read.” (Emphasis in original.)

What a silly point. Rather than simply make an unsupported declaration, I extensively exposed Murphy’s stunning incompetence and incoherence so that no fair-minded, intelligent person could mistake Murphy’s biography for a “fine new book.” Unless Cohen can contest my criticisms, I don’t see how he can find Murphy worthy of trust—how  he might imagine, for example, that Murphy is competent to assess the memos that Scalia wrote as head of the Office of Legal Counsel. But Cohen doesn’t refrain from quoting and embracing Murphy’s tendentious characterizations.

Cohen instead keeps his readers utterly in the dark about the substance of my criticisms. Indeed, he links only to my introductory post. (Here’s the current set, including the latest from yesterday: Parts 1, 2, 3, 4, 5, 6, 7, and 8.)

Update: On the Corner, Ramesh Ponnuru weighs in on Cohen’s “bad faith” argument against Scalia’s “absolute certainty.” (The latter characterization is Murphy’s and is adopted by Cohen.)​

This Day in Liberal Judicial Activism—May 28


1963— Retired justice Felix Frankfurter, having witnessed the appointment of his replacement, Arthur Goldberg, create a majority bloc of liberal activists on the Supreme Court, writes to Justice Harlan to lament “the atmosphere of disregard for law and to a large extent of the legal profession that now dominates the present Court and the Court on which I sat.” (Source: Seth Stern & Stephen Wermiel, Justice Brennan.) Decades later, the situation will be transformed—but, alas, for the worse—as “a large extent of the legal profession,” having been indoctrinated by the disciples of the Warren Court, will display a similar “disregard for law.”

2013—In two 5-4 rulings (with Justice Kennedy joining the four liberals), the Supreme Court creates more confusion over federal habeas procedures.  

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, creates an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996. Never mind, as Justice Scalia points out in dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.”

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadens a purportedly “narrow exception” that it had created just the previous year. As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in that earlier ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.”

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his dissent in the earlier case that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year.

The broader lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings, as those limitations will disappear at the first convenient opportunity.  

Chris Christie’s Flack Insults Your Intelligence


Today, NRO’s Eliana Johnson reports on Chris Christie’s irresponsible decision to re-appoint Stuart Rabner as chief justice of the New Jersey supreme court, guaranteeing him a spot on the court until 2030. Christie adviser Bill Palatucci, trying to counter criticism, gives this gem of a quote: “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.” Seriously?

Rabner has been on the court for seven years, and his judicial philosophy was well known way back when Christie was running for governor because Christie promised to replace him. Even if we could apply Palatucci’s pass-the-bill-so-we-can-find-out-what’s-in-it approach, there is nothing in our nation’s legal history to suggest that judicial evolution moves in the direction of adherence to traditional legal principles. Regardless, Palatucci may want to familiarize himself with Rabner’s record if he plans on serving on his PR team. Here are some of his greatest hits.

In national legal circles, Rabner is probably most well-known for authoring the New Jersey Supreme Court’s opinion in Garden State Equality v. Dow, which refused to stay a lower court’s order requiring the Christie administration to issue marriage licenses to same-sex couples, despite the state’s traditional marriage laws. Rabner claims that United States v. Windsor “settles” the question of whether states can establish traditional marriage definitions. Never mind that Windsor didn’t hold that, or claim to. Never mind that on the same day that Windsor was decided, the U.S. Supreme Court dismissed the case that might have settled that question, Hollingsworth v. Perry. As further support for his idiosyncratic interpretation of Windsor, Rabner cites the behavior of federal administrative agencies. At the very end of the opinion, perhaps mindful that the appeals to authority were really just fig leaves, Rabner goes out of his way to assure readers that the court had “applied settled legal standards” in coming to its conclusion.

Rabner also wrote the opinion striking down the Christie administration’s reorganization plan that would have folded New Jersey’s problem-ridden Council on Affordable Housing — an agency at the heart of the state’s fiscal problems — into another state agency. It’s a fairly technical opinion, but once you make it through the analysis, it’s pretty clear that all New Jersey agencies are in the executive branch under the state constitution, and therefore “all” must be subject to the state’s Reorganization Act unless otherwise stated. But Rabner, not to be dissuaded by text or history, pulls together a series of unrelated cases to synthesize a principle that (contrary to the state constitution) exempts independent agencies from any reorganization by the executive branch. This heretofore-unknown separation of powers principle rests entirely on a novel interpretation of a single word in the Reorganization Act: “of.” This mysterious principle also seems only to have applied to Governor Christie’s administration.

Finally, Rabner wrote an opinion in a family-law case that spends most of its words trying to explain why a mother with a prior history of drug use during pregnancy isn’t abusing or neglecting her child by ingesting cocaine two days before the child is born, even when doctors can show conclusively that the cocaine went through the child’s system. (The mother said that, by the way, she might have ingested cocaine two days before delivery when a friend spilled a bag of it onto her.) To accomplish his end result, Rabner construes the term “child” so narrowly that he ignores any harm to the child that might occur while it was in utero, even when the baby is born two days later with the metabolized drugs still in its system. That is quite a distinction without much of a difference.

I find it mindboggling that a guy like Christie, who prides himself on being able to steamroll his opponents (and apparently his allies), would renominate a man who has so thoroughly thwarted Christie’s economic agenda in New Jersey. Bipartisanship? Doubtful. Whatever the reason, Christie’s flacks can’t get around the fact that his broken promise will resonate until at least 2030, long after his presidential ambitions are frustrated.

Bruce Allen Murphy’s Scalia: A Court of One—Part 8


See Parts 1234, 5, 6, and 7

Over a month ago, I wrote the first seven posts in my series on Lafayette College professor Bruce Allen Murphy’s forthcoming biography of Justice Scalia, Scalia: A Court of One. As I noted at the time, I was commenting on the “uncorrected proof” version of the book.

I’ve now received and reviewed the supposedly corrected final book that will be released on June 10. I’m in part relieved and in part very surprised that the book is in all significant respects identical to the “uncorrected proof” version.

I’m relieved because I’ve already drafted a freestanding review of the book for National Review and I won’t have to make any significant changes to my draft.

I’m very surprised because I made Murphy and his publisher, Simon & Schuster, aware of Murphy’s stunningly incompetent account of Hamdi v. Rumsfeld (see Part 2) some seven weeks before the book’s release date, yet they didn’t bother to make a fix of this extended botch.

Skimming through the book and the “uncorrected proof” reminded me of just what a god-awful stupid mess this book is. I could write dozens of more posts about its idiocies.

There have, I will note, been some minor changes to the book. Here is my quick overview of them as they relate to my earlier posts:

1. The body of the book runs 13 pages (well, just a bit over 12) shorter than the body of the uncorrected proof. That means that the pages I cite in my posts correspond to somewhat earlier-numbered pages in the book.

2. There have been no changes that materially affect any of my posts, except for two points in my Part 4 litany of comic errors. No, Murphy hasn’t yet sorted out his confusion between Chief Justice Roberts and Mrs. Roberts on an important matter (point 1 of that post), nor has he retracted his baseless charges that Scalia was “particularly unsettled” by a Time magazine article on religion (point 2) or that he felt overshadowed when Bill Kristol proposed Justice Thomas as a VP candidate for John McCain (point 3).

Murphy has tweaked his mistaken description of Roe’s holding (point 4) in a way that arguably fixes it, and he has dropped his remarkably obtuse assertion about House Republicans (point 6).

3. As one indication of how poorly written this book is, consider this change that Murphy made to his discussion of Bill Kristol’s proposal of Thomas as a VP candidate. Here’s a passage from the “uncorrected proof” (p. 382):

At seventy-two, he [Scalia] was the same age as McCain, but was not mentioned, even in passing, by Kristol. It seemed that the mantle of “conservative leader on the Court” was passing to Thomas.

And here is the new, supposedly improved version (p. 370):

Then seventy-two, the same age as McCain, by not being mentioned, even in passing, by Kristol, it seemed that the mantle of “conservative leader on the Court” was passing to Thomas.

You’d have to work hard to write a worse sentence.

You’d have to work hard to write a worse book.

Hobby Lobby, Corporate Law, and the Theory of the Firm”


That’s the title of an excellent and comprehensive law-review article recently published online by the Harvard Law Review. Co-authored by William & Mary law professors Alan J. Meese and Nathan B. Oman, the article explains why for-profit corporations are persons for purposes of the federal Religious Freedom Restoration Act. Among other things, Meese and Oman directly contest the arguments set forth by other law professors in an amicus brief in the Hobby Lobby case.

Here’s their conclusion (which I’m breaking into multiple paragraphs for ease of reading):

For-profit corporations infused with their owners’ religion are common. These businesses do no violence to corporate law, which is primarily contractual and facilitative, allowing firms, including those that are closely held, to adopt provisions best suited to their needs. There is no evidence that these businesses generate greater corporate dysfunction than their secular counterparts.

It is true that society treats corporations as legally distinct persons for some purposes, but this is a pragmatic choice rather than a normative judgment that human concerns do not apply to such firms. Corporations are just means by which groups of people pursue common purposes, and acknowledging the exercise of religion by for-profit corporations is by no means a category mistake. Nor, given that corporations can be formed for “any lawful purpose,” do shareholders violate some social compact by accepting the benefits of the corporate form while pursuing both profits and religious values.

Of course, granting religious exemptions from otherwise applicable laws raises the risk of opportunism and can undermine important governmental policies. These risks are present with natural persons as well, however. RFRA deals with these concerns not by narrowing the definition of “person,” but instead by scrutinizing only those burdens on religious exercise that are substantial and allowing compelling interests to justify such burdens in appropriate cases. Simply put, corporate law provides no reason for excluding for-profit corporations from RFRA.

As I hadn’t noticed it before elsewhere, I’ll also highlight this passage that Meese and Oman quote from the majority opinion in 1978 in Monell v. New York City Dep’t of Social Services:

[B]y 1871, it was well understood that corporations should be treated as natural persons for virtually all purposes of constitutional and statutory analysis.

Guess which retrograde Neanderthal corporate shill wrote that passage? Justice William J. Brennan Jr. (in a part of the majority opinion joined by six other  justices, including Marshall, Blackmun and Stevens).

More Problems for Arizona AG Tom Horne


Two of Arizona’s most prominent Republican officials, Senator Jeff Flake and Congressman Matt Salmon, are publicly asking Arizona attorney general Tom Horne (also a Republican) not to run for reelection.  Senator John McCain stopped short of calling on Horne to abandon his reelection plans, but, according to the Arizona Republic, the Senator did say that “he has made serious mistakes. I think he should examine whether [quitting the race] is the best thing to do or not.”

See here for more on Horne and his scandals.


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