Bench Memos

NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—May 8


2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.”

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)   

David J. Barron, Part 1: Unabashedly Radical


With reelection and the exercise of the nuclear option behind him, President Obama has now nominated David J. Barron, to the U.S. Court of Appeals for the First Circuit.

This is the first of what will be several posts describing David J. Barron’s views of the law, the Constitution, and what Barron would be like as a federal judge. For a judicial nominee, Barron’s record is unusually rich, revealing his views of the law, the Constitution, and his judicial philosophy.

Barron was a judicial clerk for Judge Stephen R. Reinhardt, one of the most liberal judges on the uber-liberal Ninth Circuit, and for Justice John Paul Stevens. He worked as an Attorney-Advisor in the Department of Justice’s Office of Legal Counsel (OLC) during the Clinton years and after that obtained a faculty position at Harvard Law School, where he is now a tenured professor. In 2009, after President Obama was elected, Barron rejoined OLC as Acting Assistant Attorney General and left in 2010.

Barron’s nomination is especially notable because of the strange-bedfellows coalition opposing it, at least for now. Code Pink, Republican Senator Rand Paul, the ACLU, and Democratic Senators Ron Wyden and Mark Udall have joined together to prevent a confirmation vote. Democratic Senators Mark Begich and Mary Landrieu are “unsure” whether they will vote for Mr. Barron’s nomination. The bipartisan opposition is refusing to proceed until they receive memos drafted or approved by Barron during his time at OLC that relate to OLC’s approval of an overseas drone strike against American citizen and terrorist Anwar al-Awlaki. OLC has refused to release the full memos thus far, preventing resolution of the conflict. (Ironically, Barron signed off on a list of proposed guidelines demanding the “timely” release of OLC memos back when George W. Bush was president.)

But there’s much more worrying information about Mr. Barron than his mere partisan inconsistency. In short, Barron is a judicial supremacist who wants to use the federal judiciary as a weapon to advance his hard-left political vision. Stay tuned.


Federalist Society Conference and ‘Disparate Impact’


I just got back from attending the panel discussion on “disparate impact” civil-rights actions at the Federalist Society’s conference today on executive-branch overreach – and through the magic of the Internet you too can watch it, here.

The panel, which was moderated by New York Times Supreme Court correspondent Adam Liptak, included the two conservative members of the U.S. Commission on Civil Rights, Gail Heriot and Pete Kirsanow; also on the panel (and from the other side of the aisle) was law professor Ted Shaw, who has just accepted a position at UNC–Chapel Hill.

The whole panel was interesting, but I especially enjoyed the discussion that ensued after Mr. Liptak posed to the panel the problem of getting any disparate-impact cases resolved by the Supreme Court, in light of the Left’s strenuous efforts to “disappear” them.  That discussion starts at about the 42-minute mark (with a follow-up question by me at about the 49-minute mark).

Federalist Society Executive Branch Review Today


As you may know, today is the day for the Federalist Society’s Executive Branch Review Conference, which is currently being live-streamed here. If you would like to find out the schedule for the conference (and find links to particular panel webcasts), the event page is here.  

ABA Nominee Ratings: May Their Days Be Numbered


A perennial feature of judicial nominations is the obligatory rating by the American Bar Association. Just as perennially, the ABA’s ratings are so obviously politically biased that they make Pravda look like the Washington Post. The classic example was when the ABA gave Frank H. Easterbrook and Richard A. Posner the “Qualified/Not Qualified” rating, its lowest at the time, despite the nominees’ ample professional qualifications, reams of academic publications, and undisputable intellectual acumen. (As predicted, these two little-known judges receded into perpetual obscurity after confirmation to the Seventh Circuit.)

The ABA’s ratings are biased in other ways, too. The New York Times recently reported on a study showing that the ABA rates minorities and women much lower than similarly-qualified white candidates, and that candidates with low ABA ratings (i.e., “not qualified”) were no more likely to be reversed than their higher-rated peers. Similarly, John Lott found that after controlling for education and professional achievements, the ABA rated Hispanics on average one level lower than whites.

There are many problems with the idea that one can rate the quality of a judge based on reversal rates or any other apparently neutral criterion. Judicial philosophy is the most important qualification for a judge, but philosophy can’t be easily quantified. The author of the study cited by the Times proposes that the ABA system should be based on “clear and verifiable” criteria, but there’s no reason to think that such criteria would be particularly revealing or neutral about a judge’s philosophy.

Nevertheless, there appear to be the seeds of consensus on both right and left that the ABA’s contribution to judicial confirmations is pernicious. If the New York Times article is any indication, maybe we can find some common ground in simply ignoring the ABA’s evaluations from now on.


Speech Coding


As I’ve made clear before, I’m very skeptical that political scientists can generate anything of value by coding the votes of Supreme Court justices in particular cases and spewing out statistics. A new study, reported in Adam Liptak’s column in yesterday’s New York Times, reinforces my skepticism.

The study, led by law professor Lee Epstein, undertakes to explore “in-group bias” on free-speech claims by compiling data on whether a justice is more supportive of a free-speech claim when the speaker shares the justice’s perceived ideology. Liptak highlights one supposed finding—that Justice Scalia “voted in favor of conservative speakers 65 percent of the time and liberal ones [only] 21 percent.”

As I see it, there are at least two basic flaws in the study:

First, as law professor Erwin Chemerinsky suggests near the end of the article—when he says that “the Roberts court is very pro-speech except when the institutional interests of the government are at issue”—there may be factors other than speaker-favoritism or speaker-hostility in a large category of the cases, and those factors may have a very large disparate impact one way or the other in those cases.

Epstein’s seeming blindness to this possibility is reflected in the cases she uses to frame her inquiry:

[W]e posit that Supreme Court Justices are opportunistic supporters of the First Amendment. On this account, conservative Justices are more inclined to sympathize with a pro-life advocate’s complaint about restrictions near abortion clinics than a student’s claim of First Amendment protection to raise a ‘Bong Hits 4 Jesus’ banner (and liberal Justices, the reverse).

When I first read this, my immediate reaction was: How strange to seem to put on the same level the First Amendment claim of a citizen in public and the right of a high-school student taking part in a school-supervised event.

Second, Epstein’s measure of whether a justice has a statistically significant gap between votes for conservative speakers and votes for liberal speakers presupposes that the neutral justice would vote equally for the two sets of speakers. But that presupposition ignores the possibility that the claims of liberal speakers might disproportionately arise in less meritorious cases (sleeping as speech, anyone?) than those of conservative speakers. (Or vice versa, of course.)

It’s conceivable, for example, that there are many more appellate rulings by two or three liberal judges who are hostile to conservative speech claims (or to the realms—e.g., religion, abortion—in which they often arise) than there are by conservative judges who are hostile to liberal speech claims. If that’s the case, the ideal justice would end up voting more for conservative speakers. (Various other factors could also produce an imbalance.) 

In short, while Epstein can compare the vote pattern of one justice to another, she has no basis for saying that one justice’s gap between votes for conservative speakers and votes for liberal speakers is “statistically significant” and that another justice’s gap (or lack of gap) isn’t, as she has no idea what the proper gap should be.

One other observation: When a justice embraces a principle in a case involving a speaker of one ideology, the justice is committing to apply that principle in cases involving speakers of other ideologies. Further, when a Court majority embraces such a principle, it is obligating lower courts to apply that principle to all speakers. Any good justice recognizes this, of course, and will test the proposed principle against his political biases in order to make sure that it is sound. So unless there is something about the principle that makes it more likely to be invoked by speakers of one ideology, or unless there is no discernible principle set forth, I don’t see why a justice would be tempted to decide a case based on the ideology of the particular litigant.

Bradley Prize for Randy Barnett


Hearty congratulations to Georgetown law professor Randy Barnett, who has just been named a recipient of one of the four 2014 Bradley Prizes for outstanding achievement. Here’s an excerpt from the press release (which I haven’t been able to find online):

“Randy Barnett’s vigorous and fearless advocacy of the Constitution is essential to preserving freedom,” said Michael W. Grebe, President and CEO of the Bradley Foundation.  “As a professor and an attorney, Randy Barnett is a key defender of the rule of law.”

Supreme Court Dodges Case Addressing Carrying Guns Outside the Home


As I reported here, here, and here, federal appellate courts have been inconsistent on the matter of carrying firearms outside the home. Most states issue a firearms carry permit to any law-abiding applicants who have cleared the background check and passed the gun-range safety course, while some jurisdictions pick and choose who may enjoy their Second Amendment rights. New Jersey, being especially hostile to the Constitution, asserts the state can impose citizens prove a “justifiable need” before being allowed to carry a handgun, going so far as to deny carry permits to some off-duty police officers.

Enter Drake v. Jerejian, a case that has been making its way to Supreme Court review. Observers were pessimistic this case would be granted certiorari from the U.S. Supreme Court, but important developments out of the U.S. Court of Appeals for the Ninth Circuit that changed the landscape offered some hope. In February, the Ninth Circuit ruled that jurisdictions could refuse to establish a “shall issue” open-carry policy or a “shall issue” conceal-carry policy, but not both, in Peruta v. County of San Diego. This was followed a few weeks later by a separate Ninth Circuit ruling,  in Baker v. Kealoha, which essentially made the notoriously anti–Second Amendment state of Hawaii a “shall issue” state.

This forced a circuit split in a way that U.S. v. Masciandro out of the Fourth Circuit and Moore v. Madigan out of the Seventh Circuit did not, and offered the best opportunity to see if the promise of D.C. v. Heller to restore the Second Amendment rights of citizens is able to deliver.

Sadly, the court just denied certiorari in the Drake case despite the conflicting circuit opinions on carrying a firearm outside the home. I will keep Bench Memos readers up to date on developments on other Second Amendment cases as the make their way through the courts. 

Ruling in Town of Greece


By a vote of 5-4, the Supreme Court has ruled that the town of Greece, New York, has not violated the Establishment Clause by opening its monthly board meeting with a prayer. 

Here’s a very quick summary (which, of course, is no substitute for reading the opinions):

Justice Kennedy’s lead opinion is in part a majority opinion: Joined by the Chief Justice, Scalia, Thomas, and Alito, Kennedy inquires whether the town of Greece’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.” He rejects the claim that legislative prayer must be “nonsectarian or ecumenical.” (Slip op. at 9-17.) He also rejects the claim that the town violated the Establishment Clause “by inviting a predominantly Christian set of ministers to lead the prayer”; rather than try to achieve “religious balancing”—which could present entanglement problems—the town satisfies the Establishment Clause by “maintain[ing] a policy of nondiscrimination.” (Slip op. at 17-18.)

Joined only by the Chief and Alito, Kennedy further concludes that the town’s practice does not coerce participation by non-adherents. (Slip op. at 18-23.) Thomas, joined by Scalia, applies a different test to find no coercion. (The divide between Kennedy and Thomas on coercion reflects the divide between Kennedy and Scalia in the 1992 case of Lee v. Weisman.)

The principal dissent (25 pages) is by Justice Kagan. (Breyer, who joins Kagan’s dissent, also writes his own short dissent.) Kagan states that she agrees with the Court’s 1983 legislative-prayer decision in Marsh v. Chambers, but that she believes that the town of Greece’s practices fall outside the scope of that ruling for several reasons: the town’s meetings “involve participation by ordinary citizens”; “the invocations given—directly to those citizens—were predominantly sectarian in content”; and the town board “did nothing to recognize religious diversity.”

Justice Alito, in a separate concurrence joined by Scalia, responds directly to Kagan’s dissent. He argues (powerfully, I think) that, on the one hand, her dissent “is really quite niggling” as it “would demand no more than a small modification” in the town’s procedures, but that, on the other hand, the “logical thrust of many of [Kagan’s] arguments is that prayer is never permissible prior to meetings of local government legislative bodies.”  

Federalist Society Conference on Executive Branch Review


A reminder: This Wednesday, May 7, the Federalist Society will be holding its second annual Executive Branch Review conference in D.C. The conference schedule is packed with interesting panels and speakers—including a lunchtime panel on “Executive Power and the Role of the Coordinate Branches”—and closes with a keynote address by Senator Ted Cruz.

Attendance is free, and CLE credits are also available (for a $50 charge). So sign up now if you’re interested.

This Day in Liberal Judicial Activism—May 5


1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.  

This Day in Liberal Judicial Activism—May 4


1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).

Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name.

Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights: defendant may well have believed that by using a false name he was not committing himself to anything.”

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession.” A more blatant defiance of controlling authority of a higher court is difficult to imagine. 

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

This Day in Liberal Judicial Activism—May 3


1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.

In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.” 

EPA v. EME Homer City: Sign of Things To Come in the Greenhouse Gas Cases?


This past Tuesday, the Supreme Court released its opinion in EPA v. EME Homer City Generation, L.P., a lawsuit challenging EPA’s regulation covering emissions that drift between states. The central statutory question was whether the EPA is allowed to consider the costs of reducing emissions when drafting rules governing the amount of emissions that can flow to other states. With Justice Alito recused, the Court issued a 6-2 opinion, with Scalia and Thomas as the only dissenters. This alignment of the justices is unusual, with Chief Justice Roberts and Justice Kennedy joining the majority. There’s a lot to say about this case – the D.C. Circuit panel’s opinion alone was 104 pages long – but one statutory interpretation issue may hint at how the Justices are thinking about another set of EPA cases heard earlier this term, Utility Air Regulatory Group et al. v. EPA, also known as the greenhouse gas cases. In short, by joining the majority in this case, the Chief and Justice Kennedy gave up any principled basis for opposing EPA’s lawlessness in the greenhouse gas cases.

First, a bit of background about the structure of the Clean Air Act (CAA). The CAA incorporates states into the federal environmental regulation scheme through a process sometimes described as “cooperative federalism.” Each state is required to create a State Implementation Plan (or SIP) explaining how the state will achieve certain emissions standards set out by Congress in the CAA, then submits the SIP to the federal government for approval. The SIP is ultimately enforceable by the federal government, but if the federal government considers the SIP inadequate, it can impose its own Federal Implementation Plan (FIP).

Each state SIP must take account of the spillover effects on other states, such as when an upwind state causes additional downwind effects to another state. Specifically, the state must adequately take account of situations where they will cap emissions “in amounts which will—(I) contribute significantly to” other States’ ability to comply (42 U.S.C. § 7410(a)(2)(D)(i)). EPA issued a rule interpreting the term “significant” to include not only “amounts” of pollutants emitted by certain upwind sources, but also the costs of mitigation by each state. This effectively gave EPA the ability to create an individualized emissions “budget” for each upwind state based on its own statistical models that would kick in whenever the EPA thought the state SIP was inadequate. Then, in the same rule that imposed the cost-based evaluations in 2011, EPA issued its own FIP, giving the states no time to revise their SIPs. After that high-handed move, state and local governments joined with industry and labor groups to challenge the environmental regulations.

The majority opinion, written by Justice Ginsburg, upholds the rule as a reasonable interpretation of a statutory ambiguity under the Chevron doctrine. Justice Scalia’s dissent (joined by Justice Thomas) argues that the statute, although ambiguous about some things, clearly isn’t ambiguous about whether “significant” includes costs of compliance.

The majority construes § 7410(a)(2)(D)(i)(I) to mean that EPA could consider cost in determining what amount of emissions is “significant.” As Justice Scalia points out in his jazzy dissent, though, the majority (like EPA) never really explains where the statute links “significance” of the states’ ability to reach the numeric thresholds with cost-benefit analysis. The statutory grammar describes regulations that have as their object the sources of emissions within the State. But only a subset of these sources are the proper subject of regulation, namely, emissions “in amounts which will” contribute significantly. It’s very clear from the statute that “significantly” modifies the amountof contributed emissions. There’s plenty of wiggle room in “significant” for EPA to conclude that different amounts could be significant, but it’s unambiguous that cost is not mentioned, either explicitly or implicitly.

This brings us to Whitman v. American Trucking Assn’s, Inc., a 2001 case involving the trucking industry’s attempt to convince the Supreme Court that EPA should have made cost-benefit analysis a component of its regulatory analysis. As the court made clear in Whitman, agencies only get their authority through statutes, and when a statute is silent on a source of authority, no such authority has been delegated. Consequently, it’s hard to square Whitman, which construed the statute’s silence as a prohibition, with Justice Ginsburg’s opinion here, which effectively construes the statute’s silence as a grant of power by considering it an ambiguity giving rise to Chevron deference.

As a side note, several in the blogosphere have observed that the original version of Justice Scalia’s dissent (since corrected) erroneously described EPA’s position in Whitman. That’s true, but it doesn’t really affect the substance of his argument (not that you’d know it from the schadenfreude on display). More amusing than this minor error, however, is the fact that EPA has, under two successive Democratic administrations, fought both against and for cost-benefit analysis all the way to the Supreme Court. It would be interesting to know why the switch happened.

In any event, the Court’s decision in EME Homer now casts doubt on Whitman, raising the question of whether EPA will still be prohibited from engaging in cost-benefit analysis without explicit statutory authorization. The majority in this case, which included the Chief Justice and Justice Kennedy, apparently favors broad interpretive latitude for agencies that would allow deference to the agency’s judgment in nontextual considerations. If the Chief Justice didn’t intend to grease the slippery slope to EPA’s limitless position in the greenhouse gas cases, why else would he assign this opinion to Justice Ginsburg? In the greenhouse gas cases, EPA claims that it can rewrite explicit statutory thresholds because enforcing the law as written would be too costly or difficult. If EPA can consider marginal costs of compliance for states, as they did here, why can’t EPA also use broader economic effects of applying statutory thresholds in the greenhouse gas cases to undermine the remainder of Congress’s authority? With the Chief and Justice Kennedy giving up this much ground, what possible limiting principle remains?

Scalia’s Gaffe Was Stevens’s Gaffe


Per a new post by Jonathan Adler, Justice Stevens, in his 2009 dissent in Entergy Corp. v. Riverkeeper, Inc., made the very same mischaracterization of the EPA position in the 2001 case (Whitman v. American Trucking Ass’n):

In that case [Whitman v. American Trucking], the Court reviewed the EPA’s claim that §109 of the Clean Air Act (CAA) … authorized the Agency to consider implementation costs in setting ambient air quality standards. 

So it seems plausible that Scalia made the mistake of relying on Stevens’s mischaracterization.

That, I emphasize, would be no excuse for the gaffe. Indeed, relying on Stevens for anything would be a serious mistake. But it does render even more ridiculous all the over-the-top frenzy from the Left. 

Statement of Prop 8 Defender Chuck Cooper


In response to some recent developments, Chuck Cooper, the lead attorney for the proponents of California’s Proposition 8 in the litigation that challenged that initiative, has sent me a statement that I reproduce in full below.

As readers of this blog know, I followed the litigation, from the district court to the Ninth Circuit to the Supreme Court, very closely. I spoke or e-mailed with Chuck (as well as others), both by phone and by e-mail, on numerous occasions. On the core proposition in Chuck’s statement below—that he “devoted [himself] body and soul to the defense of Proposition 8”—I will firmly attest that I had no doubt at any time during the litigation, and I have no doubt now, that Chuck was thoroughly and tirelessly dedicated to defending Proposition 8. Indeed, I would describe his efforts, in the face of the overwhelming resources of the other side, some very biased judges, and lots of personal abuse, as nothing short of heroic.

Here is Chuck’s statement:

Almost a year has passed since the Supreme Court opened the way for same-sex marriages in California by deciding that my clients, four of the five official proponents of Proposition 8, lacked standing to defend in federal court the constitutionality of the 2008 measure reaffirming the State’s legal definition of marriage as the union of one man and one woman.

Jo Becker’s new book about the Proposition 8 case, Forcing the Spring, has brought the case back into the news, and some of the media attention has focused on the book’s pages relating to my daughter’s plans to marry a young woman in Massachusetts this summer. Our family knew, of course, that the irony in this would not be lost on the media, and we have been expecting this momentary public spotlight, as well as the comments, kind and unkind, that would inevitably follow along. Some of the comments, from both sides in the public debate over same-sex marriage, have carried the speculation that perhaps my heart was not in my defense of Proposition 8, that I was ambivalent about the outcome of the case.  Although I have declined all invitations to speak about my family, I cannot allow this suggestion to go unanswered.

Make no mistake, I believed then and I believe now, fervently, that Proposition 8 was a constitutional exercise of the right of California’s voters to decide this difficult and controversial public policy issue, and I and my colleagues devoted ourselves body and soul to the defense of Proposition 8 for four years. The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political, and moral values, and does not place it in the hands of federal judges.

Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned – if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision too.

Throughout every stage of the case, and long before my daughter told me she is gay, my colleagues and I expressed our genuine respect and good will for our opponents and other supporters of gay marriage. Here is what we said about them to the Supreme Court: “[T]hey are decent, thoughtful citizens from all walks of life, all political parties, and all races and creeds. They are our family members, our friends, our colleagues and coworkers, our community and business leaders, and our public officials.” But we insisted that the same is also true of the vast majority of Proposition 8’s supporters, and that their views on marriage are entitled to no less consideration and respect, both in the political process and in the courts. I believe these things no less now than I did then, and before then.

In a recent decision upholding a Michigan voter initiative prohibiting racial preferences in college admissions, Justice Kennedy, writing for a plurality of the Supreme Court, spoke of the fundamental right of citizenship in our democratic society; namely, the right “held not just by one person but by all in common . . . to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” The citizens of California no longer have the right to speak and debate and learn and then to decide the marriage issue through the electoral process; their right was nullified by a single federal judge in San Francisco. Elsewhere across the country, however, the political debate over marriage is intensifying, fueled by rapidly changing public attitudes on this issue. But regardless of how the citizens of each state decide this issue, it is their decision to make.

Anti-Scalia Derangement Syndrome Strikes Again


As Jonathan Adler promptly pointed out in a Volokh Conspiracy post, Justice Scalia made an embarrassing gaffe in his dissent Tuesday in an EPA case. In short, he misstated the position that the EPA had taken in a 2001 case (a case in which he had written the majority opinion). His misstatement misframed the lead-in to his sub-argument that the Court’s ruling on Tuesday was in conflict with its ruling 13 years ago.

There is good reason for folks to be surprised by Scalia’s error. The gaffe also gives Scalia’s critics ample occasion to deride the error, and I won’t fault them for having fun doing so, as I won’t dispute that I and others would likely be doing the same for a blunder by a liberal justice.

But, given the frenzy on the Left over the gaffe, I think that it’s important to put it in proper perspective. For starters, Scalia’s error was utterly immaterial to the legal rationale for his dissent. It affected only his lead-in to one argument and had zero impact on the merits of that argument. (The inconsequential nature of the error is presumably what explains the otherwise surprising fact that none of the other justices or their clerks evidently noticed it.) More broadly, the genuinely momentous errors that justices make—the sort of errors that might merit the adjective “epic” that some have extravagantly applied to Scalia’s gaffe—involve getting the law wrong by misreading or misinterpreting constitutional and other legal provisions.

Fortunately for Scalia, his most fervent critics are vulnerable to what I call Anti-Scalia Derangement Syndrome—a condition that leads those with animus against Scalia to get unhinged and make fools of themselves. In a great post yesterday evening, Jonathan Adler exposes the latest victim of ASDS, a fellow by the name of Brian Beutler.

Yesterday Beutler wrote an essay for the  New Republic modestly titled “Scalia’s Epic Blunder Exposes His Partisan Hackery.” The URL for the essay hilariously reads “Supreme Court Justice Scalia Makes Huge Error Journalist Never Would.” (For ease of reading, I’ve altered the punctuation.) Unfortunately for Beutler, he proceeds to make a series of his own blunders.

As Adler details, Beutler gets Scalia’s gaffe wrong: Beutler mistakenly asserts that Scalia “misremembered the issue” in the 2001 case and, as a result, erred “by suggesting that the [majority’s holding on Tuesday] contradicted” the ruling in that case. Adler shows further that Beutler makes other errors of the very sort that he faults Scalia for and that Beutler’s broader condemnation of Scalia “ignores the whole of Justice Scalia’s jurisprudence on statutory interpretation and administrative law.”  

It’s especially funny that Beutler recites “the maxim that if you’re going to pull a fact check, you better be 100 percent correct, or prepared to endure tremendous ridicule.” But it turns out that Beutler isn’t prepared to endure the ridicule that he deserves. In tweets last night responding to Adler, he called Adler’s smackdown “silly” and falsely claimed that he didn’t misdescribe Scalia’s error. And despite criticizing the Court for not making a “formal correction” (as Adler points out, the Court in fact did follow its usual formal process), Beutler, as of the time I’m writing this, hasn’t acknowledged or corrected his errors or shown any signs that he will.

“Partisan hackery,” indeed.

Judicial Confirmations Proceed Apace


Todd Ruger of the Legal Times reports that the Senate has confirmed nine judges this week.  In addition to Michelle Friedland, a Ninth Circuit nominee, the Senate confirmed eight district court judges. The Senate also voted 60-38 for cloture on the nomination of Kansas Supreme Court Justice Nancy Moritz to the U.S. Court of Appeals for the Tenth Circuit. This clears the way for the Senate to confirm Moritz next week.

A Review of Justice Stevens’s Senate Testimony


Having explained my position that Justice Stevens’s act of testifying before the Senate Rules Committee on campaign-finance reform was unethical, I’ll now offer some observations on the substance of Stevens’s testimony, the brief text  (1000 words or so) is available here.

1. Stevens argues that campaign-finance rules “should create a level playing field” and “should give rival candidates—irrespective of their party and incumbency status—an equal opportunity to persuade citizens to vote for them.”

This strikes me as worse than quixotic, as dangerously foolish. What does the goal of a “level playing field” even mean? Should candidates whose qualifications and positions earn them ardent support—whether in campaign contributions or volunteer help—be required to share that support with less able candidates? Should reporters and editorialists be required to accord equally favorable treatment to all candidates? (Stevens’s proposed amendment wouldn’t go that far, but his rationale would.) Should some bureaucrat be determining which candidate advantages are fairly earned and which aren’t?

2. In support of campaign-finance rules that distinguish “between money provided [to candidates] by their constituents and money provided by non-voters [whether corporations or non-residents],” Stevens cites a recent decision upholding a federal statute that prohibits foreign citizens from spending money to support or oppose candidates for federal office. He then makes this extravagant argument by analogy:

During World War II, the reasoning behind the statute would have prohibited Japanese agents from spending money opposing the re-election of FDR but would not have limited their ability to broadcast propaganda to our troops. Similar reasoning would justify the State of Michigan placing restrictions on campaign expenditures made by residents of Wisconsin or Indiana without curtailing their speech about general issues.

While very skeptical, I’m open to being persuaded that such restrictions might comply with the First Amendment.* But comparing corporations and residents of other states to enemy aliens in wartime isn’t a good start.

3. Stating that “money is not speech,” Stevens asserts “financial activities should not receive the same constitutional protection as speech itself.” Why not? “After all, campaign funds were used to finance the Watergate burglaries—actions that clearly were not protected by the First Amendment.” (That’s the entirety of his argument.) I don’t see what that has to do with anything. I’d instead recommend Eugene Volokh’s short video, “Is Money Speech?

Overall, a very feeble performance. (Stevens didn’t take questions—perhaps in recognition of the ethical minefield in which he had placed himself—so there is nothing beyond his testimony.)​

* Of course, if Stevens is maintaining that his proposed constitutional amendment is necessary to impose the distinction he favors—it’s not clear that he is—then the First Amendment would be no obstacle (if, that is, the distinction is “reasonable”​).

This Day in Liberal Judicial Activism—May 1


1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.

One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor and Souter dissent. 

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination is finally confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.


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