Bench Memos

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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.


This Day in Liberal Judicial Activism—October 2


1953—Less than one month after the death of Chief Justice Fred M. Vinson, President Eisenhower recess-appoints California governor Earl Warren as Chief Justice. In January 1954, Eisenhower nominates Warren to hold that office “during good Behaviour,” but Warren, following the Senate’s confirmation of his nomination in March 1954, instead extends his stay as Chief Justice all the way to June 1969.

Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes. 


Sham Litigation Against Marriage in Oregon


According to documents obtained from the Oregon attorney general’s by the National Organization for Marriage, attorney general Ellen Rosenblum and her staff colluded in advance with counsel for same-sex couples to overturn the state’s marriage laws.

The so-called Geiger lawsuit against Oregon’s marriage laws was filed in mid-October 2013. Beginning as early as July 2013, attorney general Rosenblum and her staff consulted extensively with plaintiffs’ counsel—reviewing the draft complaint, coordinating strategy, and engineering the false appearance of initial adverseness between the parties.

In February 2014, Rosenblum made quite a public show of her decision not to defend against the lawsuit. But the fix was in even before the lawsuit was filed.

In a petition for rehearing en banc, NOM argues that the documents “demonstrate a lack of adversarialness sufficient to raise serious questions about the jurisdiction of the court below.” (The federal district court issued its ruling against Oregon’s marriage laws in May 2014.)

Modern “Political Science”


As I indicated at the end of my last post, I think that the broader question on which I part company with political scientists Lee Epstein, Christopher M. Parker, and Jeffrey A. Segal is whether and how modern “political science,” as applied to judicial decisionmaking, might ever be a worthwhile field of endeavor. Let me explain.

1. I’ll start with Matt Franck’s “short history” (from this book review) on how political science “lost its way” (underlining added):

Political science as an organized, modern academic discipline has existed for a little over a century. For about the first half of its existence, public law was a vitally important interest of the discipline as a whole…. In the early twentieth century, pioneering political scientists like Edward Corwin examined the impact of constitutional jurisprudence on American civic life, and along the way proved themselves every bit the equal—often the superior—of constitutional law scholars in history departments and law faculties when it came to the analysis, critique, and uses of legal reasoning. What Corwin’s generation understood was that the most important question about every Supreme Court decision is also the most interesting question to the ordinary citizen, to the student, and hence to the scholar as well—i.e., was it rightly decided? But then, like every ordinary citizen, the scholars of Corwin’s generation believed or appeared to believe that the Constitution has a meaning of its own, independent of the passions of students, the interests of advocates, and the inclinations of judges. Legal reasoning, therefore, was actually possible.…

The behavioral revolution of a half-century ago, which brought fully into daylight the implications of positivism in political science, gave birth to the first generation in public-law scholarship of what is now known (and still going strong) as the “attitudinal model.” More or less explicitly rejecting the possibility that legal reasoning and legal principles were themselves important independent variables in judicial decision-making, the judicial behavioralists undertook to demonstrate, through the application of quantitative empirical methods, that public law was not so much the shaper of political life as the plaything of ideological, partisan, and personal motivation on the part of judges. The complete neglect of legal reasoning, and the near-total exclusion of legal principle as a causal force in judicial decision-making, represented a classic instance of begging the question.…

2. The study by Epstein, Parker, and Segal on in-group bias is a typical example of the attitudinal, or behavioralist, model. The authors never even ask whether a particular Supreme Court decision they code might be rightly decided. If a ruling, say, is unanimous for a speaker whom they code to be conservative, that ruling instead ipso facto provides evidence for them that the conservative justices have indulged their in-group bias and that the liberal justices have overcome theirs. (And vice versa, of course, for unanimous rulings for liberal speakers.)

When Epstein, Parker, and Segal compile their simplistic binary codings, they generate seemingly sophisticated tables replete with statistical measures, to the third decimal place, of mean, standard deviation, Bayesian credible intervals, and more. The only appropriate response, I would suggest, is to laugh out loud at the pseudo-scientific absurdity.

Epstein, Parker, and Segal purport to assess whether the voting pattern of a justice is “statistically significant.” But without establishing how the ideal justice should rule in the various cases—an enterprise that would require the exercise of legal judgment and that would, of course, be highly contestable—they have no sound objective benchmark against which to measure an actual justice’s voting pattern. They implicitly assume that the ideal justice would vote for liberal speakers at the same percentage level as for conservative speakers. That assumption in turn presupposes that the cases in which claims of liberal speakers and conservative speakers arise are equally meritorious. But there are various reasons, as I’ve briefly discussed, why that assumption may be wrong (in either direction). For example, if a justice believes that pornography receives little or no protection from the First Amendment, and if pornographers are disproportionately coded as liberals, pornography cases would operate to generate a disparity in the justice’s voting pattern, even though the disparity has nothing to do with speaker-favoritism or speaker-hostility.

3. In sum, I’m very skeptical that political scientists can generate any valuable insights about judicial decisionmaking simply by coding the votes of Supreme Court justices in particular cases and spewing out statistics. To be clear: I am not taking the position that statistical analysis of voting patterns is necessarily worthless. In particular, I’m open to the possibility that it might suggest avenues for further exploration. But that further exploration, if it’s going to be fruitful, will have to involve the (sometimes) difficult and (often) contestable work of engaging in legal reasoning.

Re: Garbage In, Garbage Out


Last week, I highlighted law professor Todd Pettys’s critique of a much-ballyhooed study by political scientists Lee Epstein, Christopher M. Parker, and Jeffrey A. Segal that purports to show that in First Amendment speech cases “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.” Epstein, Parker, and Segal have now provided their response (one page of text, plus some tables, plus a long appendix) to Pettys’s critique. I don’t find it persuasive. Some observations:

1. As I’ve made clear, I believe that the Epstein-Parker-Segal study suffers from basic flaws that render it incapable of generating any meaningful insights. Pettys’s critique, as I saw it, bolstered my skepticism in various ways. For example, I posited that “there may be factors other than speaker-favoritism or speaker-hostility” that would account for supposed disparities in a justice’s voting pattern (supposed disparities, I emphasize, that the study authors in fact don’t  measure against any sound benchmark). Pettys finds that the campaign-finance cases explain most or all of the supposed disparity for Chief Justice Roberts and Justice Alito, and he observes that cases involving sexual speech (e.g., obscenity and child pornography) may well account for much of Justice Scalia’s supposed disparity. Further, by exposing bizarre assumptions that the study authors make (e.g., conservative justices would see racist speakers—even including anti-white speakers—as part of their ideological in-group) and by identifying speaker codings that are wrong or contestable, Pettys called into serious question whether the study, even on its own terms, was objective and workable.

2. The study authors maintain that “of the 36 challenges” that Pettys makes to case codings, “29 are not errors but coding disagreements of one form or another.” The authors refer the reader to an appendix (Excel version available at last link here) in which they set forth the bases for their disagreements.

I’ll leave it to Pettys to engage comprehensively with the study authors and will instead consider here only some of their positions.

a. The authors observe that Pettys doesn’t like the “issue area definitions” set forth in the Supreme Court Database and complain that “he’s not free to condemn our work for failing to meet” his preferred definitions. But Pettys is utterly transparent about his concerns about the Supreme Court Database, and it’s entirely reasonable for him to fault the authors for relying on a flawed database. That’s what “garbage in, garbage out” (a phrase Pettys doesn’t use) means. In response to the charge that they shouldn’t have included in a study of First Amendment speech cases some cases that didn’t involve First Amendment speech issues, I don’t see how it’s much of an answer for them to assert that they were just following the Supreme Court Database.

b. Even stranger, in response to Pettys’s objection that they incorrectly classified the ideological identities of speakers, the authors (in their appendix) repeatedly claim, in one fashion or another, that Pettys is “too focused on the ideological characteristics of the speaker rather than the speech.” (Emphasis added.) But the very point of their study, as they state in their abstract, is to use “in-group bias theory” to (supposedly) show that liberal justices are more “supportive of free speech when the speaker is liberal” and that conservative justices are more—indeed, much more—supportive of free speech when the speaker is conservative. Indeed, in their introduction they distinguish “in-group bias accounts,” in which it is the party’s “identity [that] would matter” from “standard ideological accounts of judicial behavior.”

Insofar as the authors now seem to be shifting the basis for the speaker coding from the speaker to the speech, they at the very least appear to be obscuring a troubling ambiguity in the in-group bias theory that they are trying to apply. To adapt one of Pettys’s criticisms: If we can’t be reasonably sure in a particular case whether a justice would look to the speaker or to the speech to determine whether the speaker is a member of an ideological in-group or out-group, we can’t confidently use the justice’s vote in that case to measure the justice’s tendency toward ideological in-group bias.

c. I pointed out in my initial post Pettys’s observation that the authors bizarrely classify David Dawson—a convicted murderer on death row who belonged to a white racist prison gang and who called himself a disciple of Satan—as a conservative speaker because they code racist communication and racist behavior as conservative. What do the authors say in defense? “Just because all conservatives don’t agree with the speech doesn’t make it more liberal.” That’s it.

As for their related coding as a conservative speaker an African-American man whose sentence had been enhanced because he selected his victim (a young white boy) on the basis of his race, here’s what the authors muster: “Hate crime laws are liberal laws, so speaking out against them is coded as conservative speech.”

Neither response does anything to address Pettys’s broader point: Are we really to believe that any conservative justice would see either of these two racist speakers as part of his own ideological in-group?

3. The authors contend that, with the corrections that they’ve seen fit to make, nothing in their results changes “in any substantively or statistically significant way.” In one sense, I agree with the authors, as I don’t think that their study, even if it were internally flawless, would yield anything that is “substantively or statistically significant.” In any event, I’m much less interested in any quibbling over whether particular case codings are, in the end, defensible than in how the existence of irreducibly arbitrary and questionable judgments helps to illustrate the folly of the entire endeavor.

In fairness to Epstein, Parker, and Segal, the broader question on which I differ with them is whether and when modern “political science,” as applied to judicial decisionmaking, might be a worthwhile field of endeavor. I’ll have more on that in a follow-up post.

This Day in Liberal Judicial Activism—October 1


2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway. As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

2009—Addressing a petition for divorce filed by two parties to a same-sex marriage performed in Massachusetts, Texas trial judge Tena Callahan rules that Texas laws that recognize only opposite-sex marriages violate the federal Constitution. On appeal, a unanimous state appellate court panel will rule a year later that the Texas laws are constitutional and that, there being no recognizable marriage, the trial court did not have jurisdiction to address the divorce petition. 

Why Is Justice Ginsburg Speaking Publicly on Abortion Policy?


Beyond the passage I’ve highlighted in which Justice Ginsburg comments negatively on the Texas abortion law now under challenge in the Fifth Circuit, Ginsburg somehow sees fit in her New Republic interview to speak on all sorts of other matters related to abortion policy—how the overturning of Roe v. Wade “would be bad for non-affluent women”; how both courts and legislatures “have been moving in the wrong direction”; and how unfortunate it is that there “is no big constituency out there concerned about access restrictions on poor women.” She even offers her advice on how such a political constituency could be created. (Among other things, despite her infamous comments a few years ago about “populations that we don’t want to have too many of,” Ginsburg volunteers, “I think it would be helpful if civil rights groups homed in on the impact of the absence of choice on African American women.”)

How can Ginsburg possibly think it proper to speak her mind openly on this matter? How are her comments conceivably consistent with the judicial duty to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”?

To be sure, some of her comments might be said to address her constitutional views on abortion. But that’s certainly not the case for all her comments. And even where she might be addressing her constitutional views, she isn’t simply stating what she has previously written (or joined) in published opinions. So why is she speaking out publicly? 

Federal Court Deals Another Blow to Obamacare


Today in Pruitt v. Burwell, District Judge Ronald A. White of the Eastern District of Oklahoma followed the reasoning of the D.C. Circuit’s opinion in Halbig v. Sebelius, striking down the extension of unlawful tax subsidies even though Oklahoma had declined to establish its own state insurance exchange. The court concluded that the phrase “established by the State” means what it says. This may foreshadow an even deeper circuit split, underscoring how important it is that the Supreme Court review these cases at the soonest opportunity. 

The court’s conclusion is worth quoting in full (sans citations):

The court is aware that the stakes are higher in the case at bar than they might be in another case. The issue of consequences has been touched upon in the previous decisions discussed. Speaking of its decision to vacate the IRS Rule, the majority in Halbig stated “[w]e reach this conclusion, frankly, with reluctance.”

Other judges in similar litigation have cast the plaintiffs’ argument in apocalyptic language. The first sentence of Judge Edwards’ dissent in Halbig is as follows: “This case is about Appellants’ not-so-veiled attempt to gut the Patient Protection and Affordable Care Act (‘ACA’).” Concurring in King, Judge Davis states that “[a]ppellants’ approach would effectively destroy the statute . . . .” Further, “[w]hat [appellants] may not do is rely on our help to deny to millions of Americans desperately-needed health insurance. . . ..”

Of course, a proper legal decision is not a matter of the court “helping” one side or the other. A lawsuit challenging a federal regulation is a commonplace occurrence in this country, not an affront to judicial dignity. A higher-profile case results in greater scrutiny of the decision, which is understandable and appropriate. “[H]igh as those stakes are, the principle of legislative supremacy that guides us is higher still. . . This limited role serves democratic interests by ensuring that policy is made by elected, politically accountable representatives, not by appointed life-tenured judges.”

This is a case of statutory interpretation. “The text is what it is, no matter which side benefits.” Such a case (even if affirmed on the inevitable appeal) does not “gut” or “destroy” anything. On the contrary, the court is upholding the Act as written. Congress is free to amend the ACA to provide for tax credits in both state and federal exchanges, if that is the legislative will. As the Act presently stands, “vague notions of a statute’s ‘basic purpose’ are nonetheless inadequate to overcome the words of its text regarding the specific issue under consideration.” It is a “core administrative-law principle that an agency may not rewrite clear statutory terms to suit its own sense of how the statute should operate.” “But in the last analysis, these always-fascinating policy discussions are beside the point. The role of this Court is to apply the statute as it is written – even if we think some other approach might ‘accor[d] with good policy.’”

The animating principles of this court’s decision have been articulated by the Tenth Circuit: “[C]ourts, out of respect for their limited role in tripartite government, should not try to rewrite legislative compromises to create a more coherent, more rational statute. A statute is not ‘absurd’ if it could reflect the sort of compromise that attends legislative endeavor.” “An agency’s rulemaking power is not ‘the power to make law,’ it is only the ‘power to adopt regulations to carry into effect the will of Congress as expressed by the statute.’” “In reviewing statutes, courts do not assume the language is imprecise … Rather, we assume that in drafting legislation, Congress says what it means.”

The court holds that the IRS Rule is arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law, pursuant to 5 U.S.C. §706(2)(A), in excess of statutory jurisdiction, authority, or limitations, or short of statutory right, pursuant to 5 U.S.C. §706(2)(C), or otherwise is an invalid implementation of the ACA, and is hereby vacated. The court’s order of vacatur is stayed, however, pending resolution of any appeal from this order.

It is the order of the court that the motion of the defendants for summary judgment (#91) is hereby denied. The motion of the plaintiff for summary judgment (#87) is hereby granted.

Re: Justice Ginsburg Disqualifies Herself from Ruling on Texas Abortion Law?


On the Blog of Legal Times, Tony Mauro highlights the criticisms that Josh Blackman and I have offered of Justice Ginsburg’s negative comment on the Texas abortion legislation now under challenge in the Fifth Circuit. He also quotes two law professors who contend that Ginsburg’s comment doesn’t require her recusal. Let’s consider their views.

Amanda Frost observes that Ginsburg “should have erred on the side of caution and avoided making any statements about legislation at issue in a pending case.” But, Frost says, under the relevant law, recusal is required only when a judge has “expressed an opinion concerning the merits of the particular case in controversy.” In her view, Ginsburg’s comment was “a single sentence and a statement of fact” rather than “a decision as to whether the law is or is not a health measure or an undue burden.”

I think that Frost gets the relevant law wrong and slices the salami too thin. The provision Frost cites (28 U.S.C. 455(b)(3)), as I understand it, concerns judges who have previously served in other governmental employment and who in that other capacity “expressed an opinion concerning the merits of the particular case in controversy.” Ginsburg is subject to the general rule under 28 U.S.C. 455(a) that she must disqualify herself “in any proceeding in which [her] impartiality might reasonably be questioned.”

Consider again Ginsburg’s exchange with Jeffrey Rosen:

[Rosen]: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

[Ginsburg]: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. 

I don’t see how anyone could read Ginsburg’s two sentences as reflecting anything other than a very negative opinion of the Texas law and as thus leading a reasonable observer to question her impartiality. Of course, Ginsburg’s comment doesn’t amount to a “decision.” But that’s not the right test.

The second law professor Mauro quotes is Jeffrey Shaman, who, without any apparent reference to applicable law, simply asserts, “It is unrealistic to expect that a justice’s comment on a particular issue should operate to disqualify him or her from hearing a case involving that issue.” The point that Blackman and I have made isn’t, however, that Ginsburg has commented “on a particular issue”; we’re not contending that her public comment on abortion bars requires her to disqualify from any case involving abortion. The problem, rather, is that Ginsburg has commented negatively about a particular law that the Supreme Court might be called on to review.

This Day in Liberal Judicial Activism—September 30


2013—Rosemary Barkett’s 34-year Reign of Error in the American judiciary—first in Florida’s lower courts, then as a state supreme court justice (and chief justice), and finally as a federal appellate judge—comes to an end, as she retires from the Eleventh Circuit and accepts a position as an arbitrator on the Iran-United States Claims Tribunal in The Hague. How much damage Barkett can inflict in her new position is unclear, as the dysfunctional Tribunal has jurisdiction only over claims filed more than three decades earlier.

Ohio Wins Supreme Court Order Allowing Its Uniform Early-Voting Rules


Order granting stay of lower-court injunction is 5-4, with the liberals in dissent. (I would like to think that the margin on the merits would be much greater, but I may be giving too much credit to the liberals). Lyle Denniston’s account here. More background in my posts here and here.

EEOC Gets Slapped Down — Again


The U.S. Equal Employment Opportunity Commission has recently suffered a series of embarrassing setbacks in court, and today it got another one.

In EEOC v. Port Authority of New York and New Jersey, a Second Circuit panel unanimously upheld the trial court’s dismissal of the commission’s Equal Pay Act lawsuit.  A few excerpts:

The district court concluded that the EEOC failed to allege sufficient facts to state a plausible claim that female and male attorneys at the Port Authority performed “equal work” despite receiving unequal pay. Because the EEOC did not allege any facts supporting a comparison between the attorneys’ actual job duties, thereby precluding a reasonable inference that the attorneys performed “equal work,” we AFFIRM. . . . [D]espite a three‐year investigation conducted with the Port Authority’s cooperation, the EEOC’s complaint and incorporated interrogatory responses rely almost entirely on broad generalizations drawn from job titles and divisions, and supplemented only by the unsupported assertion that all Port Authority nonsupervisory attorneys had the same job, to support its “substantially equal” work claim. As such, the EEOC’s complaint was rightly dismissed. … Simply put, the EEOC has not alleged a single nonconclusory fact supporting its assertion that the claimants’ and comparators’ jobs required “substantially equal” skill and effort. That the EEOC’s failure to include such factual allegations followed a three‐year investigation into the Port Authority’s pay practices – an investigation conducted with the Port Authority’s cooperation – is of some note. … Here, the EEOC had ready access to Port Authority documents and employees, including to the claimants asserting EPA violations, yet the EEOC failed – in fact, repeatedly rejected the need – to allege any factual basis for inferring that the attorneys at issue performed “substantially equal” work.

You get the idea. 

Prosecutorial Discretion, Part Two: Its Limits


Put generally, prosecutorial discretion is the power not to act to enforce the law. In Part One of this series, I focused on the debated nature and origins of prosecutorial discretion. My goal in Part Two is to outline some recent conservative legal thinking about prosecutorial discretion. In Part Three, I will apply these principles to some contemporary issues (like the immigration debate) and provide some reflections on the state of the law.

Is prosecutorial discretion “absolute,” in the words of a bit of dicta from United States v. Nixon (1974)? As we will see, the constitutional limits of discretion in nonenforcement are set by the Take Care Clause, the nondelegation doctrine, and prohibitions on selective prosecutions. In addition, Congress has the ability to limit discretion through statutes that constrain the executive’s decision not to act. 

1. The “Take Care” Clause

Article II, Section 3 of the Constitution states: “[The president] shall take care that the laws be faithfully executed.”

The textual meaning of this provision is straightforward: The president has a duty to execute the laws. With such a seemingly clear statement of the president’s duty to enforce the law, why would the government ever be allowed to decline to enforce a law, either in a particular case or in general?

Everyone agrees that a mere failure to enforce every law to its fullest possible extent is not unconstitutional, given the reality of limited taxpayer resources and the infeasibility of perfect execution. As a result, any interpretation of the Take Care Clause has to include some allowance for some nonenforcement.

There is less consensus, however, about how much enforcement is enough. Justice Scalia seems to take a relatively lenient view. He has described the prosecutor’s discretion as the “balancing of various legal, practical, and political considerations, none of which is absolute,” which he considers “the virtual embodiment” of the power exercised in the Take Care Clause.

Professors Robert Delahunty and John Yoo make a compelling case that there is no general presidential power of nonenforcement. They write: “The Take Care Clause sets the baseline; any deliberate deviation from it is presumptively forbidden. But as with legal duties generally, the duty is ‘defeasible,’ and its nonperformance can be excused or justified in appropriate circumstances.”

They identify four legitimate excuses and discuss them in the context of the immigration law debate: (1) unconstitutionality of a statute; (2) equity in individual cases; (3) insufficient resources; and (4) the de facto delegation of legislative power. I’ll leave you to read the whole article yourself, but it’s well worth your time. Also worth reading is a response by Professor Sai Prakash.

2. The Nondelegation Doctrine

As you may remember, the Supreme Court has often affirmed (without enforcing the principle) that “legislative powers” cannot be delegated to the executive. The test is whether Congress has given the executive an “intelligible principle” to apply.

At a high level, the notion of prosecutorial discretion presents a challenge to the nondelegation doctrine: If the executive has the power not to act, then it has the power to undermine the substance of whatever intelligible principle Congress has legislated. As a result, the broader one’s view of nonenforcement discretion, the bigger the nondelegation problem.

Despite this tension, courts tolerate broad criminal prosecutorial discretion because of the numerous problems with trying to supervise criminal prosecutions. As Justice Powell said in Wayte v. United States (1985):

Such factors as the strength of the case, the prosecution’s general deterrence value, the Government’s enforcement priorities, and the case’s relationship to the Government’s overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Judicial supervision in this area, moreover, entails systemic costs of particular concern. Examining the basis of a prosecution delays the criminal proceeding, threatens to chill law enforcement by subjecting the prosecutor’s motives and decisionmaking to outside inquiry, and may undermine prosecutorial effectiveness by revealing the Government’s enforcement policy. All these are substantial concerns that make the courts properly hesitant to examine the decision whether to prosecute.

For non-criminal enforcement, such as administrative enforcement, the Supreme Court has been somewhat less deferential when Congress makes its wishes known. (I will discuss this more below.)

3. Selective Prosecution (Equal Protection and Due Process)

The Constitution’s limits apply to discretionary action or inaction regardless of whether a statute sets limits. The Supreme Court has applied the Fifth Amendment Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to prohibit selective prosecutions.

In United States v. Armstrong (1996), Justice Rehnquist wrote for the majority that a selective-prosecution claim in the criminal context requires proof of both discriminatory effect and purpose, in keeping with the “ordinary equal protection standards.” This is a very difficult defense to raise in the criminal context, so it is rarely successful because the defendant would have to show that similarly-situated individuals of a different race were not prosecuted.

Armstrong also traced a long line of selective prosecution cases, including a general ordinance in Yick Wo v. Hopkins (1886), that was (magically) enforced only against Chinese immigrants. The Supreme Court found an equal-protection violation in the enforcement, noting that the Fourteenth Amendment specifically applies to “person[s]” within the states’ jurisdictions without regard to their citizenship. From there, the court reasoned that the ordinance’s enforcement was carried out in a fashion “directed so exclusively against a particular class of persons” that they indicated “a mind so unequal and oppressive” behind the enforcement, concluding that their enforcement (later described as having “an evil eye and an unequal hand”) constituted an equal-protection violation.

Selective prosecution can also give rise to civil liability, albeit with a stronger showing from the plaintiff. In Hartman v. Moore (2006), the prosecutor had allegedly initiated a criminal action in retaliation for the defendant’s First Amendment activities. The Supreme Court, however, required the plaintiff to prove that there was no probable cause for the prosecution, thus requiring a showing of malicious prosecution rather than retaliation.

If you’re interested in reading more about selective prosecution doctrine, take a look at Wayte v. United States (1985) and United States v. Falk (7th Cir. 1973), which dealt with selective prosecution based on exercise of First Amendment rights. In general, the Supreme Court has condemned prosecutions deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification. Keep in mind, however, that Congress can also withdraw jurisdiction from federal courts for certain types of challenges to administrative activity, including selective prosecution suits.

4. Statutory Mandates

In the criminal context, Congress leaves most enforcement decisions to the executive branch. Some criminal statutes mandate an investigation but leave the charging decision to the executive branch. The False Claims Act, for instance, says the government “shall” investigate fraud but “may” prosecute any violations. The Internal Revenue Code likewise states that the IRS “shall investigate violations” of various tax laws and report the violation to the federal prosecutor, but stops short of requiring prosecution even if a violation has occurred.

For administrative nonenforcement decisions, Congress provided for general judicial review in the form of the Administrative Procedure Act, which allows courts to “compel agency action unlawfully withheld or unreasonably delayed.” This would suggest that administrative inaction is generally subject to judicial review.

But in Heckler v. Chaney (1985), the Supreme Court held that despite the APA, an administrative decision not to enforce is presumptively not subject to judicial review at all. Justice Rehnquist wrote:

This recognition of the existence of discretion is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.

The reasons for this general unsuitability are many. First, an agency decision not to enforce often involves a complicated balancing of a number of factors which are peculiarly within its expertise. Thus, the agency must not only assess whether a violation has occurred, but whether agency resources are best spent on this violation or another, whether the agency is likely to succeed if it acts, whether the particular enforcement action requested best fits the agency’s overall policies, and, indeed, whether the agency has enough resources to undertake the action at all. An agency generally cannot act against each technical violation of the statute it is charged with enforcing. The agency is far better equipped than the courts to deal with the many variables involved in the proper ordering of its priorities. Similar concerns animate the principles of administrative law that courts generally will defer to an agency’s construction of the statute it is charged with implementing, and to the procedures it adopts for implementing that statute.

Why is a nonenforcement decision different from a decision to enforce? The Court relied on its noncoercive aspect:

In addition to these administrative concerns, we note that when an agency refuses to act it generally does not exercise its coercive power over an individual’s liberty or property rights, and thus does not infringe upon areas that courts often are called upon to protect. Similarly, when an agency does act to enforce, that action itself provides a focus for judicial review, inasmuch as the agency must have exercised its power in some manner. The action at least can be reviewed to determine whether the agency exceeded its statutory powers.

The Court also noted that if “the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” nonenforcement would be reviewable.

If you would like to see practical examples of reviewable nonenforcement, take a look at environmental citizen suit statutes that authorize citizens to force the government to enforce certain environmental laws or regulations. Some of those statutes even force the government to engage in lawmaking. In Massachusetts v. EPA (2007), the Supreme Court concluded that the Bush administration’s refusal to regulate violated the statutory criteria establishing when the EPA had to regulate. It may seem odd that Congress would daisy-chain procedure together like that by authorizing a private citizen to use the judiciary to force the executive to exercise Congress’s own delegated power of lawmaking, but that’s Congress for you.

Anyway, why is there such a difference between the standards for non-criminal cases and criminal cases? Aside from the immediate practical considerations noted above, I think the best legal answer lies in their respective origins. The broad prosecutorial discretion in federal criminal cases would have been carried over from English common law doctrine of nolle prosequi in the original meaning of the Judiciary Act of 1787. There is no such tradition of executive “prosecutorial discretion” with regard to clear statutory instructions from Congress, however, so the courts have been less deferential.

Could Congress, in theory, mandate certain criminal prosecutions? I suppose so, though it doesn’t strike me as a good idea. Even assuming that such a law would not act as a Bill of Attainder, Wayte’s description of the problems with judicial supervision of criminal prosecutions barely scratches the surface. In my view, it’s best for Congress to establish broadly acceptable priorities for criminal law enforcement and leave the highly fact- and law-dependent decisions to the officials who are charged with carrying out those decisions.

In my third and final post about prosecutorial discretion, I will apply these principles to some contemporary legal issues and conclude with some reflections.

For further reading:

John Yoo & Robert J. Delahunty, The Obama Administration, the Dream Act, and the Take Care Clause, Texas Law Review (2013)
Saikrishna Prakash, The Statutory Nonenforcement Power, Texas Law Review (2013)
Sai Prakash, Take Care Clause, The Heritage Guide to the Constitution

Justice Ginsburg Disqualifies Herself from Ruling on Texas Abortion Law?


In the course of a long interview with the New Republic’s Jeffrey Rosen, Justice Ginsburg offers her views on the merits of Texas abortion legislation now under challenge in the Fifth Circuit:

[Rosen]: So how can advocates make sure that poor women’s access to reproductive choice is protected? Can legislatures be trusted or is it necessary for courts to remain vigilant?

[Ginsburg]: How could you trust legislatures in view of the restrictions states are imposing? Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either. Think of the Carhart decision or going way back to the two decisions that denied Medicaid coverage for abortion. I don’t see this as a question of courts versus legislatures. In my view, both have been moving in the wrong direction. It will take people who care about poor women. The irony and tragedy is any woman of means can have a safe abortion somewhere in the United States. But women lacking the wherewithal to travel can’t. There is no big constituency out there concerned about access restrictions on poor women. [Emphasis added]

As law professor Josh Blackman points out, this comment by a justice on a specific law would seem the very stuff of which recusal obligations are made. 

DOMA Ruling Did Not “Vindicate” Eric Holder


I’m not going to delve into Eric Holder’s sorry legacy as Attorney General here, but I cannot pass over the flatly wrong assertion in this Washington Post house editorial (and made elsewhere, including by Holder) that the Supreme Court’s ruling in United States v. Windsor somehow “vindicated” Holder’s decision to have the Department of Justice abandon its defense of the Defense of Marriage Act.

Let’s review the basics:

1. When Eric Holder announced the Obama administration’s decision not to defend DOMA, he claimed that that decision was consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” Holder, in other words, was maintaining that no reasonable defense of DOMA could be offered. He was not purporting to base his refusal to defend DOMA on a judgment or prediction that a Supreme Court majority would strike down DOMA.

2. Holder’s claim that no reasonable arguments could be offered in defense of DOMA was clearly wrong at the time he made it, for the reasons that I spelled out in Part III of my House of Representatives testimony. For present purposes, the relevant point is that nothing the Court did in Windsor remotely suggests that it agreed that no reasonable arguments could be made in defense of DOMA.

The four dissenters, of course, emphatically rejected Holder’s position, as they concluded that the arguments on behalf of DOMA were not merely reasonably but sound. Although the majority ruled against DOMA, nothing in the majority opinion implies that no reasonable arguments could be made on behalf of DOMA.  

Indeed, perhaps the only point on which the majority and the dissent appeared to agree is that Holder acted irresponsibly in failing to defend DOMA. In his majority opinion (slip op. at 12), Justice Kennedy laments that the “Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma” and “poses grave challenges to the separation of powers.” In his dissent, Justice Scalia states (slip op. at 6 n. 2), “There is no justification for the Justice Department’s abandoning the law in the present case.”

In short, there is no evidence that a single justice agreed with Holder that no reasonable arguments could be offered in defense of DOMA. That’s some vindication.

3. What might actual vindication have looked like? If the Court had sanctioned or scolded the defenders of DOMA for presenting frivolous arguments, or if it had summarily affirmed the Second Circuit’s anti-DOMA ruling without bothering with full briefing and oral argument, then Holder might reasonably claim vindication.

4. In a sound legal culture, Holder’s refusal to defend DOMA would be recognized as a shameful moment in politicized government lawyering and as a dangerous precedent that deserves condemnation. If and when a Republican attorney general chooses to follow Holder’s example, the Washington Post and other  Holder cheerleaders may come to rue what they have sown. 

This Day in Liberal Judicial Activism—September 29


1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

This Day in Liberal Judicial Activism—September 28


1962— President Kennedy’s appointment of Arthur Goldberg to replace the retiring Felix Frankfurter creates a clear liberal activist majority on the Supreme Court. As Seth Stern and Stephen Wermiel write in Justice Brennan:

Goldberg’s arrival meant that Brennan did not need to accommodate [Byron] White’s concerns [of judicial restraint]: the bloc had its fifth vote without him. After the very first Friday of the term, Brennan came back to his chambers with a look of triumph on his face—a look he would keep all term.


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