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A Case Study on Politicized Judging from Montana



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In 2011, the Montana Supreme Court famously decided it didn’t need to follow the U.S Supreme Court’s decision in Citizens United. The decision was exceptional even for Montana, whose supreme court has been ranked by the U.S. Chamber of Commerce as one of the least fair, competent, and impartial in the country. Unsurprisingly, that lawless decision was summarily reversed by the U.S. Supreme Court. 

Apparently the disregard for clear precedent has filtered down to the lower courts in Montana as well. A recent case illustrates the willingness to explain away obvious legal authority and could turn into another Montana Supreme Court power-grab.

Montana Solicitor General Lawrence Van Dyke (whose appointment I noted here) is preparing to run for state Supreme Court. He is up against the machine of the Montana Trial Lawyers’ Association which for decades has had a stranglehold on the judicial elections and which supports his opponent, incumbent Justice Mike Wheat.

A native Montanan, VanDyke has been a member of the Montana State Bar since 2005, and thus complies with the state constitution’s requirement that a candidate for judicial office be a member of the state bar for at least five years. But his opponents at the MTLA have engineered a lawsuit that grasps at the thinnest of legal straws to argue that, because he was on inactive status during a portion of that time when he practiced out of state, he is not eligible. 

The legal issue is straightforward and obvious not only on the constitutional text itself, but from the constitutional convention, which considered making the requirements for judicial office more stringent and ultimately rejected the proposition. But that didn’t prevent a Montana trial judge from ruling against VanDyke on grounds that even his opponents in the case said had no legal merit.

Now the Montana Supreme Court is set to hear the appeal, but that court with its reputation for politicized rulings could be even less impartial than normal: of the six sitting justices, Justice Mike Wheat is VanDyke’s opponent in the upcoming election, and Chief Justice Mike McGrath was his first campaign donor. It would be manifestly unfair to have VanDyke’s eligibility to run be determined by a court including either of those two justices.  

While it takes a lot of chutzpah to flout clear U.S. Supreme Court precedent, hearing a case in which one is so obviously biased could do even more damage to the judicial office in Montana. I hope Chief Justice McGrath and Justice Wheat are quick to step aside to allow a neutral court to decide what should be a simple case.

Re: Justice Stevens’s Unethical Testimony



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A reader asks, reasonably, that I explain my assessment that Justice Stevens has acted unethically in testifying before Congress in favor of a constitutional amendment on campaign-finance restrictions. So here’s a short version:

1. When Stevens decided to retire from active service, he had two options under 28 U.S.C. § 371: He could fully retire (i.e., “retire from the office”) under subpart (a), or he could “retain the office but retire from regular active service” under subpart (b). As his retirement letter reflects, Stevens clearly chose the second option: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.” Further, the Supreme Court’s public information office advised me yesterday that he remains retired under subpart (b). Thus, he remains an Article III judge.

2. The Judicial Conference of the United States has adopted the Code of Conduct for United States Judges and has authorized its designated Committee on Codes of Conduct to issue advisory opinions on the meaning of the Code of Conduct. (The Code of Conduct doesn’t formally apply to Supreme Court justices (including those retired pursuant to § 371(b)), but it’s generally regarded as providing a benchmark for judging their conduct.)

In its Advisory Opinion No. 50 (available, along with other opinions, here), the Committee on Codes of Conduct concludes that, notwithstanding the arguably expansive text of Canon 4A(2),

a judge may appear at a public hearing before or consult with an executive or legislative body or official relative to matters not concerning judicial administration only “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.”  

In its Advisory Opinion No. 93, the Committee on Codes of Conduct, in summarizing Advisory Opinion No. 50, states:

We have … advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual. [Emphasis added.]

3. I don’t see how Stevens’s role in deciding cases involving campaign finance should be thought to give him “special expertise in that area” any more, say, that Justice Scalia’s role in deciding cases involving abortion gives him special expertise in that area. Anyone who would be appalled if Scalia were to testify before Congress on, say, a proposed Human Life Amendment ought equally to be appalled by Stevens’s testimony. There is nothing about either topic that would “reasonably … be considered to merit the attention and comment of a judge as a judge.”

Update: Eugene Volokh disagrees with my conclusion. He thinks that Stevens does have the requisite “special expertise” in campaign finance, largely because Stevens “is the one living judge who has participated in the greatest number of campaign finance cases.” I don’t see how his comparison of Stevens to other judges is relevant. As I read the commentary, the question instead is whether Stevens has special expertise compared to the universe of campaign-finance experts who aren’t judges. Unlike, say, a judge’s unique insights on how juries operate, I don’t see how a judge has anything special to add on campaign finance.​

Update #2: Eugene Volokh responds (same link) to my first update. I think that what divides us is how we read the Advisory Opinions. As I read them, the “special expertise” they require is something very like the special expertise that judges have in judicial administration. Volokh objects that the Advisory Opinions “set forth a ‘special expertise’ standard, not an ‘unparalleled expertise’ standard.” But here is how Advisory Opinion No. 93 puts it: “permissible law-related activities are ‘limited to the kinds of matters a judge, by virtue of [the judge’s] judicial experience, is uniquely qualified to address.’” (Emphasis added.) I think that my focus on “whether Stevens has special expertise compared to the universe of campaign-finance experts who aren’t judges” is faithful to that standard and that Volokh’s inquiry (comparing Stevens to other judges) is not.

 

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Incompetence, or Stupidity, in that NC “Religious Liberty” Marriage Case?



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Yesterday Ramesh Ponnuru responded at The Corner to a Slate piece by Mark Joseph Stern, describing a lawsuit brought against the state of North Carolina by (among others) the General Synod of the United Church of Christ.  According to Stern,

Under North Carolina law, a minister who officiates a marriage ceremony between a couple with no valid marriage license is guilty of a Class A misdemeanor and can be thrown in jail for 45 days. And since gay marriage is illegal in North Carolina, that means any minister who dares celebrate a gay union in his church may face jail time.

This, Stern said, is an egregious violation of religious liberty, so what did the putative defenders of that liberty have to say about it?  Ramesh said he’d never heard of this North Carolina law, but if the matter were as Stern described, he was against it.  Later, on second thought after looking at the law in question, though, Ramesh said it didn’t sound at all like the situation Stern claimed it was.

These second thoughts were wise.  The lawsuit is bogus through and through, a fact you will not of course learn from Stern, or from Michael Paulson of the New York Times, who wrote about it for today’s paper.  I have read the complaint, and can confidently say that the religious liberty claims in it are a frivolous waste of time for the federal district court in which it was filed.  In fact, the suit is based on such a laughably obvious misreading of the relevant North Carolina statute that we can say the lawyers filing it are either incompetent, or willing to tell outrageous falsehoods about the plain meaning of a statute.

Here’s the situation: North Carolina recognizes marriages only between a man and a woman.  Like other states, it authorizes clergy in various religious faiths to solemnize those marriages, fill out and sign civil marriages, and file them with the appropriate state authorities.  There are civil and criminal penalties in North Carolina for ministers and other authorized persons who do not follow correct procedures.

Local clergy in several faiths, including the United Church of Christ, claim in their federal court filing that the laws imposing such potential penalties actually forbid them to engage in ceremonies they wish to perform in their own churches and synagogues for same-sex couples, which they are pleased to call a “marriage,” because they would acting outside the prescribed state licensing scheme for civil marriages.  Hence they claim to fear prosecution.  In the words of the complaint:

[M]inisters and others who are authorized to conduct marriages in North Carolina are expressly precluded by State law from performing any ceremony of marriage between same-sex couples, even if their faith and religious beliefs allow them to conduct such ceremonies and recognize those marriages. . . .

If a minister conducts any marriage ceremony between same-sex couples, he or she is guilty of a crime.

These claims are patently false.  The complaint itself, immediately after the last line above, quotes the relevant statutory language, but the authors of the complaint evidently do not understand it:

a. North Carolina General Statute § 51-6 states: “Solemnization without license unlawful. No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant.”

b. North Carolina General Statute § 51-7 states: “Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.”

These two provisions must be read together, in the context of the state’s decision to recognize marriages only between a man and a woman.  § 51-6 requires authorized persons to act only on valid marriage licenses, if they are going to “declare” a couple “husband and wife” for civil legal purposes.  § 51-7 further tells these authorized persons that they are answerable in any case where they do not first get the license, or fail to act on it before it expires, or fail to return it properly finished to the register of deeds in ten days. 

This law, whether wise or unwise, is merely a regulation by the state of the process of solemnizing, concluding, and recording those marriages the state recognizes as marriages.  It has no application whatever to any situation where a clergyman wants to preside over a ceremony that the state does not recognize as a marriage.  To their hearts’ content, the clergy of the United Church of Christ may “marry” away, in twos and threes and fives, any persons of either sex just as freely as they wish, and the state of North Carolina has nothing to say about it.  Their religious freedom to call these unions “marriages” for their own purposes is completely untrammeled.  They just aren’t marriages under North Carolina law.  And because they aren’t, neither statutory provision above has any application.  Those laws are quite orthogonal, occupying a domain untouched by whatever it is these clergy want to do in their houses of worship.

It is notable that this trumped-up fakery is in the guise of a lawsuit for declaratory relief.  That is, there is no pending prosecution of any clergyman in North Carolina for “violating” the totally imaginary “prohibition” on their same-sex “marriage” ceremonies.  I doubt there has ever been a whisper of a hint of a threat to prosecute, for a complete defense against such prosecution is available in the form of a competent reading of the law.

The complaint filed in Charlotte federal court names three classes of plaintiffs: several “religious denominations,” several clergy or “minister plaintiffs,” and several same-sex couples who want to get married.  The last of these groups is making the now-familiar set of (outlandish) due-process and equal-protection claims.  But they seem to have felt they needed some even more outlandish religious-liberty claims, so they have invited the other two groups of plaintiffs to help them manufacture a transparently ridiculous humbug of a case. 

Too bad for them that this over-hyped nonsense, complete with New York Times coverage, is exploded instantly by just reading the statute that is the target of the complaint.

 

Re: Race Matters



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Like Justice Sotomayor, the New Yorker’s Jeffrey Toobin seems to think that the continued existence of racism—including the vile rantings of Cliven Bundy and Donald Sterling—bears meaningfully on the question whether Michigan’s ban on racial preferences is constitutionally permissible. Even worse, he baselessly attributes to the justices in the majority in Schuette v. BAMN—last week’s ruling on Michigan’s Proposal 2—an “insist[ence]” that racial discrimination is “ancient history.” (The quotes Toobin offers don’t remotely support his characterization.)

Senate Confirms Another Ninth Circuit Nominee



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Yesterday, by a vote of 51-40, the Senate confirmed attorney Michelle Friedland to the U.S. Court of Appeals for the Ninth Circuit. With her confirmation, there are no longer any vacancies on the Ninth Circuit. According to Bob Egelko, this is the first time ever the Court has had 29 active judges.  It’s also interesting that Friedland is third attorney from the same law firm — Munger Tolles & Olson — nominated to the Ninthc Circuit by President Obama and confirmed by the Senate.

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This Day in Liberal Judicial Activism—April 29



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1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

RGA Attacks Lawyer for Being Defense Attorney



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When folks on the left attacked some of President Bush’s judicial nominees for having represented politically unpopular clients or having advanced controversial positions in court, many conservatives cried foul — and rightly so.  As David Rivkin and Lee Casey explained in Policy Review, the adversary legal system relies upon the willingness of lawyers to represent even the most unpopular or unpalatable clients, and the canons of legal ethics provide that it is improper to impute to an attorney the position of his or her client.  Unfortunately it seems that the attack ad specialists at the Republican Governors  Association never learned these lessons, as they have produced two ads assailing South Carolina gubernatorial candidate Vincent Sheheen for having represented criminals when he worked as a criminal defense attorney.  I have not doubt these ads are effective, but they are also wrong.  Attorneys should not be vilified because they were willing to represent those who needed a defense, and we should fear a system in which such representation can come at the cost of one’s political career.  I have even stronger words for these advertisements at the Volokh Conspiracy here and here.

Justice Stevens’s Unethical Testimony



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Justice John Paul Stevens Stevens retired only from active service in 2010. He remains an Article III judge (eligible to sit on a lower court) and is therefore subject to the same ethical norms that govern the justices in active service. Nonetheless, on top of authoring a book that “offers a manifesto on how the Constitution needs to change,” Justice Stevens has somehow agreed to testify this Wednesday at a Senate Rules Committee hearing on the politically contentious topic of campaign-finance restrictions. I hope that a senator will ask him to explain how it is ethical for him to testify on this matter.

Addendum: Josh Blackman soundly weighs in:

In what bizarro world does an Article III Judge testify before the Senate about a decision issued by his Court. I am out of adjectives to describe the post-judicial behavior of Justice Stevens.

If he wants to speak out against the Court, he should resign his commission, and write as a private citizen. Everyone thinks he has already retired. That’s how his book describes him. So, make it so.

This Day in Liberal Judicial Activism—April 28



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2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.

Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”

Only after the cameras are off, in her written responses to post-hearing questions, will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.

See here for fuller account. 

This Day in Liberal Judicial Activism—April 26



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1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.

Lincoln at Gettysburg



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The new issue of National Affairs (whose founding editor is my Ethics and Public Policy Center colleague, and Corner contributor, Yuval Levin) features a wonderfully insightful essay by Diana Schaub on the Gettysburg Address. Here’s a sample passage:

The first paragraph of the Gettysburg Address consists of only one sentence, but it’s a doozy. It describes the past, the nation’s beginnings. What Lincoln called “the birthday of the United States of America” in the serenade speech has been transformed into a sophisticated, poetic metaphor that refers to three distinct moments: conception, birth, and baptism. The past that Lincoln refers to is a past that stretches back before living memory. “Four score and seven years ago” exceeds the individual’s allotment of “three score and ten,” the Biblical phrase for the natural span of a human life. Lincoln’s decision to formulate the date in this way accentuates the fact that the founding is now beyond anyone’s direct experience.

By the way, the “serenade speech” that Schaub refers to in that passage was the “impromptu speech that Lincoln gave on July 7th, right after the [Gettysburg] victory, when residents of the District of Columbia assembled outside the White House to serenade him.” As Schaub points out, in that serenade speech Lincoln “prefigures points he will make at Gettysburg” but “in very different language.” Here, as one stark example, is how it started out: “How long ago is it?—eighty odd years ….”

This Day in Liberal Judicial Activism—April 25



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1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.

Profile of Justice Alito



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I very much enjoyed this American Spectator profile of Justice Alito.

Did Justice Kennedy ‘Schuette Down’ the Same-Sex Marriage ‘Inevitability’ Narrative?



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Did Justice Anthony Kennedy just signal in Tuesday’s Schuette v. BAMN decision that he might vote to uphold state constitutional amendments defining marriage as between one man and one woman? That seemed very doubtful last June when Justice Kennedy authored the majority opinion striking down Section 3 of the federal Defense of Marriage Act (federal DOMA) in U.S. v. Windsor. Many assumed after Windsor that it was “inevitable” for the Supreme Court to create a constitutional right to compel states to recognize same-sex marriage.

However, Justice Kennedy’s strong endorsement of voters deciding controversial social issues through their state constitution’s amendment process in Schuette raises the question of whether he is a sure vote to strike down state constitutional provisions defining marriage as one man and one woman. In Schuette, Justice Kennedy and five other justices upheld a voter-approved Michigan state constitutional amendment prohibiting state universities and public schools from granting “preferential treatment” to individuals based on their race, sex, ethnicity or national origin in operating the schools. Activists unsuccessfully challenged the Michigan amendment using equal protection arguments similar to those used to attack the various state marriage amendments.

Many view Justice Kennedy as the swing vote for a federal constitutional right to redefine marriage, so his views in Schuette on state constitutional amendments are important.  Justice Kennedy wrote at length how the Constitution permits state voters to determine difficult and divisive moral issues permeated with “rancor,” and that courts should stay out of these conflicts:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters . . . Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

These passages and more from the opinion conflict significantly with the decisions of many federal district courts interpreting Windsor as directing them to strike down state marriage amendments, which they have done with zeal. Schuette indicates that the lower courts may have been reading Windsor too broadly, because Schuette reinforces what Justice Kennedy wrote in Windsor — that in our federalist system, state governments have the legal authority to affirm marriage.

Schuette also shows that Justice Kennedy may have a more complex and nuanced view about “animus” motivating voters to approve state constitutional amendments.  He characterized positively the deliberations by voters to approve the Michigan amendment.  Justice Kennedy wrote that Michigan voters approved the amendment based on thoughtful consideration of the evidence and arguments, and not because of rank prejudice (which marriage advocates have been saying for years about the motivation of voters who approved marriage amendments in most states in the union):

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.  The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign, there will be those on both sides who seek to use racial division and discord to their own political advantage.  An informed public can, and must rise above this.

Will these new issues raised by Schuette appear in the marriage cases now pending at several federal appeals courts?  They should, and we may know soon. The Tenth Circuit in Denver just heard appeals of federal district court decisions that struck down the marriage amendments in Utah and Oklahoma.  The Fourth Circuit in Richmond set to hear oral arguments May 13 on the constitutionality of Virginia’s marriage amendment.

I would not be surprised to see supplemental briefing in those cases on how the Supreme Court’s decision in Schuette affects the constitutionality of the state marriage amendments.  After Schuette, a Supreme Court decree commanding states to redefine marriage looks a bit less inevitable.

— Jordan Lorence is senior counsel for Alliance Defending Freedom in its Washington, D.C., office. ADF is defending both the Oklahoma and Virginia marriage amendments at the 10th and 4th federal circuit appeals courts, respectively.

Bruce Allen Murphy’s Scalia: A Court of One—Part 7



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See Parts 1234, 5, and 6

In his forthcoming biography of Justice Scalia, Bruce Allen Murphy engages in a lot of implausible armchair psychologizing, as he crams the facts into his seemingly pre-formed theses. A few examples (beyond what’s in previous posts):

1. In his opening anecdote about the distinctive hat that Scalia wore to President Obama’s second inaugural, Murphy manages to withhold judgment on whether Scalia wore the hat in order “to cause … a sensation” (or in order to keep warm in the intense cold). But he asserts that Scalia “could not have been unhappy with the result” because “he was usually most pleased if the focus was on him.”

But on the very next page, Murphy claims that Scalia “attracted attention by not attending”  Obama’s 2013 State of the Union address. Never mind that Scalia hadn’t attended a State of the Union address since 1997, and never mind that it’s routine for justices not to attend. (As one summary of a study puts it, “In the period from 2000 forward, on average only 32% the justices attended the address, including a three-year period when Justice Stephen Breyer was the only court representative present.”)

2. Murphy contends that Scalia always searched for jobs that would “offer[] him the power, public visibility, and upward mobility that he craved.” He actually writes this in the same paragraph in which he reports that Scalia took his first job out of law school in the great power center of … Cleveland.

3. Murphy imagines that Scalia was happy to be the only originalist on the Court when he joined it, as he “would have the stage to himself, just as he liked it.”

4. Murphy even viciously and outrageously insinuates that Scalia was happy that Judge Bork’s 1987 nomination was defeated, as “Scalia was now completely free of the intellectual shadow of Robert Bork” and “he and he alone would represent the original interpretation theory on the Supreme Court.” 

Argentina v. NML Capital



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On Monday, the Supreme Court heard oral argument in Argentina v. NML Capital, which involves a post-judgment discovery dispute in litigation arising from Argentina’s defaults on its bond obligations. (I’ve previously highlighted Argentina’s stated determination to defy our nation’s courts and the oddity of the Obama administration’s decision, nonetheless, to support Argentina’s position on the particular discovery dispute.) On Opinio Juris, law professor Michael Ramsey has an admirably clear post spelling out exactly what is at issue in the case and explaining why Argentina ought to lose.

Race Matters



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I don’t contest at all Justice Sotomayor’s proposition, in the Michigan case decided yesterday, that race continues to matter in lots of ways in this country. But I think that Chief Justice Roberts rightly responds, in his brief concurrence, that Sotomayor’s proposition does not meaningfully advance the case for racial preferences, whether on constitutional or policy grounds. [Addendum: Sotomayor asserts, “Race matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Roberts offers the obvious response that it is racial preferences that “may themselves have the debilitating effect of reinforcing precisely that doubt.”]​

I’m also struck by this assertion of Sotomayor’s:

Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home.

If I’m understanding this properly (and perhaps I’m not), Sotomayor is positing that, say, a young Hispanic person who doesn’t speak Spanish would find it racially demeaning for “a stranger” to speak to him or her in Spanish. Just wondering: Is it racially demeaning only if the stranger is, or appears to be, non-Hispanic? If so, why isn’t that a racist reaction on the part of the young person?

Also, I had thought that English-only policies were regarded as racially demeaning. Is it also racially demeaning for a stranger to speak to a young Hispanic person in English if it turns out that the young Hispanic person doesn’t know English? If so, how is the stranger supposed to know in advance which language to use? Isn’t this a case in which the stranger is being damned either way?    

Bruce Allen Murphy’s Scalia: A Court of One—Part 6



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See Parts 1, 2, 3, 4, and 5

Much of Bruce Allen Murphy’s new biography of Justice Scalia is dedicated to a tedious and tendentious account of seemingly every speech or interview that Scalia has ever given (e.g., the “controversial television interview with Maria Bartiromo”!). Murphy contends that Scalia’s “extrajudicial speeches and conduct … ventured far beyond those of any other justice, including Abe Fortas, who was forced to resign from the Court.” Further, according to Murphy, when Scalia began making speeches in his early years on the Court, he violated the “prevailing ethical norms of the Court against such extrajudicial speechmaking.” This “informal rule,” Murphy argues, “had been in existence since 1969, after the forced resignation of Justice Abe Fortas.”

Murphy’s claims are bogus. For starters, if there had been an “informal rule” against “extrajudicial speechmaking,” how is it that Justice William Brennan could have given a speech in October 1985 contesting the Reagan administration’s constitutional philosophy? Murphy conveniently forgets that speech, even though he had some twenty pages earlier quoted from it in highlighting the “legal intellectual fireworks between Justice William Brennan and Reagan attorney general Edwin Meese.” Murphy cites, and tries to distinguish away, a handful of speeches by Justice Blackmun in the early to mid-1980s, but his distinction—Blackmun was trying to “explain why analysts and observers should see him differently,” while Scalia “was outlining the terms of how he would act in the future”—is inane, ought to cut against Blackmun (why should a PR campaign be more acceptable than discussion of judicial philosophy?), and obviously doesn’t apply to Brennan’s speech.

Further, Canon 4 of the Code of Conduct for United States Judges (which doesn’t formally apply to Supreme Court justices, but which they have long looked to for guidance) expressly provides that, within broad limits, a judge “may speak, write, lecture, and teach on both law-related and nonlegal subjects.” As it happens, Murphy himself, in his published entry on “Extrajudicial Activities” in the Encyclopedia of the Supreme Court of the United States (2008), refers to extrajudicial activities of justices that “can involve activities as innocuous as giving a speech.” (Emphasis added.) (He does state later in that entry that speeches by justices “have led to some debates about the proper political role of the modern Court.”)

That same Encylopedia entry by Murphy renders absurd his claim that Scalia’s speeches and conduct exceed Fortas’s or could even be plausibly be compared to Fortas’s. By Murphy’s account, Fortas helped LBJ “draft pieces of  legislation,” “revise[d] State of the Union addresses in the Oval Office,” “served as Johnson’s secret emissary to the Dominican Republic during a 1965 coup,” discussed with LBJ “issues then under consideration by the Supreme Court,” and agreed to payment to serve on a foundation funded by Louis Wolfson, whose appeal of his criminal conviction was pending in federal court.

Murphy also seems blissfully unaware that Justice Ginsburg authorized the NOW Legal Defense and Education Fund to name a lecture series after her—the “Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law”—even as that group continued to take part in cases on which Ginsburg sat. Nothing in the wildest smears that Murphy parrots against Scalia comes anywhere close to Ginsburg’s conduct.

Bruce Allen Murphy’s Scalia: A Court of One—Part 5



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See Parts 1, 2, 3, and 4

Another major thesis of Bruce Allen Murphy’s forthcoming biography of Justice Scalia is that Scalia’s interpretive methodology has repeatedly changed over the years. In a summation of his charge (p. 425), Murphy contends that

any fair reading of [Scalia’s] speeches and judicial opinions demonstrates clearly how the Court of Appeals judge, who had used a wide variety of decision-making theories, then became a strict textualist on the Supreme Court by the late 1980s, then evolved into a broader originalist by 1996, spoke as a Catholic on the Court in the early 2000s, became an even more partisan originalist by 2005, and was now [in 2010] casting himself as the judge of the historians.

Murphy’s contention is hopelessly confused. For starters, I’ll highlight the contrary assessment that a genuine scholar, Ralph Rossum, offers in his impressive 2006 book, Antonin Scalia’s Jurisprudence: Text and Tradition. According to Rossum, “Since his appointment to the Supreme Court, [Scalia] has been remarkably consistent in his approach to questions of constitutional and statutory interpretation, and his opinions have provided considerable instruction on what it means to be a principled and intelligent textualist.” Further, Scalia’s opinions during his D.C. Circuit years “sketched the outlines of the textualist jurisprudence that he would fully elaborate once he was on the Supreme Court.” (Murphy lists Rossum’s book among the 150 or so books in his selected bibliography, but I discerned no sign that he ever read it.)

Now let’s try to untangle Murphy’s confusion step by step:

1. Murphy says that Scalia “used a wide variety of decision-making theories” during his four years as a D.C. Circuit judge. To be sure, as a lower-court judge, Scalia was much more constrained by Supreme Court precedent than he would later be. That said, Murphy’s own account cuts against his claim.

According to Murphy, in the early Scalia dissent that “best demonstrated his early judicial technique and philosophy,” Scalia “demonstrated his new theory of ‘textualism,’ going to his dictionary for a textual meaning of the limits of speech in the Constitution’s First Amendment.” (In another passage, Murphy misunderstands textualism as nothing more than “dictionary meaning.”) In another opinion, he “add[ed]” to his textual approach “an inquiry into the historical tradition.” And by the fall of 1985, Scalia was “proposing that judges rely on his version of the ‘public meaning’ of the Constitution, interpreting laws according to the meaning of the words in the minds of the people at the time of the creation of that charter.”

Murphy seems to think that these illustrations are discordant rather than compatible. But if we set aside his error in thinking that textualism is limited to dictionary meaning and his infelicitous mixing of “public meaning” with what is “in the minds of the people,” we recognize the clear outlines of Scalia’s originalism.

2. Murphy states that Scalia “became a strict textualist on the Supreme Court by the late 1980s,” and he contrasts that phase with a later evolution “into a broader originalist.” By “strict textualist,” Murphy evidently means that Scalia supposedly “bas[ed] decisions” solely “on the dictionary definition of the Constitution’s or statute’s words.”

It’s true that Scalia sometimes relied on contemporaneous dictionary definitions. But Murphy can point to nothing that would indicate that Scalia ever embraced the notion that textualism was nothing but dictionary definitions. There is nothing in the “public meaning” theory of originalist textualism that remotely suggests such a limit.

Further, even if Murphy has a somewhat more expansive understanding of what it means to be a “strict textualist,” Scalia’s full originalism was already on display early in his time on the Court. Take Scalia’s classic 1988 dissent in Morrison v. Olson, at the end of only his second term.  Scalia relies heavily on the structural principle of separation of powers. He doesn’t  look to a dictionary to determine what “the executive Power” means. And after citing two competing dictionary definitions of “inferiour,” he relies on the structure of the Constitution and on the context of the word “inferior” in the Appointments Clause to determine that it means “subordinate.”

3. I have no idea what Murphy means when he contends that Scalia shifted to an interpretive methodology in which he “spoke as a Catholic on the Court in the early 2000s.” As my Part 3 post makes clear, I think it’s obvious that Murphy likewise has no idea what he means.

4. As for Murphy’s claim that Scalia, in 2010, was “casting himself as the judge of the historians,” it ought to be clear, whether from Murphy’s own account of Scalia’s “original meaning” approach in 1985 or from Morrison v. Olson or from umpteen other pieces of evidence, that Scalia’s public-meaning originalism always entailed a historical inquiry into the original meaning of legal provisions.

* * *

In sum, Murphy’s claim that Scalia made the various dramatic shifts that Murphy posits”—much less that “any fair reading of [Scalia’s] speeches and judicial opinions demonstrates clearly” those shifts—is ridiculous.​

Lest I be misunderstood: I readily acknowledge the possibility that an intelligent scholar could plausibly identify changes in Scalia’s approach as well as inconsistencies in how he has applied his stated principles. (Rossum, for example, contends that Scalia “has occasionally drifted from his text-and-tradition moorings.”) But Murphy’s account falls well below the bar of competence.

What Does Schuette Mean for Marriage?



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Today’s decision in Schuette v. BAMN held that states do not violate the Equal Protection Clause when they require equal treatment of citizens regardless of race.  On one level, the very proposition that equal treatment could violate Equal Protection is absurd, as Justices Scalia and Thomas highlighted in their opinion. 

Justice Kennedy in his opinion, however, focused on the democratic process and the trust that our form of government places in the people to work out the answers to contentious political issues.  The question of racial preferences is certainly one of those issues, but the hottest political debate by far that pits states against the federal government is that of the definition and redefinition of marriage.

Kennedy’s language in today’s opinion is very encouraging for those who defend the states’ constitutional authority to resist federal pressure to redefine marriage.  He describes the statewide initiative allowing Michigan voters to amend the Michigan Constitution as “a basic exercise of their democratic power” and lauds the initiative system as a means “to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues.” 

This high regard for the initiative process was evident in Kennedy’s dissent in Hollingsworth v. Perry, the case challenging California’s Proposition 8 that amended the state constitution to define marriage as between a man and a woman. In that case, he lauded the initiative process as “establish[ing] a lawmaking process that does not depend upon state officials” to keep the power of government ultimately in the hands of the people themselves.  He also praised our system of government for “allow[ing] disputes of public policy to be resolved by the political process rather than the courts.” 

Today’s decision elaborates on the principle that the most contentious issues should be decided by the people and their democratically-elected representatives rather than unelected federal judges.

Here is Kennedy’s language from today’s opinion, which could have just as easily applied to the debate over the redefinition of marriage:

Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or facul­ties, acting at some remove from immediate public scru­tiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented re­striction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process. 

The respondents in this case insist that a difficult ques­tion of public policy must be taken from the reach of the voters, and thus removed from the realm of public discus­sion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsi­ble, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.

In characteristic Kennedy fashion, there is a catch: “when hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts.” He suggests the courts should overturn even race-neutral laws if they are “designed to be used, or [are] likely to be used, to encourage infliction of injury by reason of race.”  As long as maintaining a state’s definition of marriage is cast as a no more than a mean-hearted attempt to stigmatize certain sexual practices rather than preserving the family through an institution as old as humanity itself, Kennedy’s vote may still be with those asking the federal courts to overturn states and their citizens in “a basic exercise of their democratic power.” 

But to the extent that the public at large is willing to engage in reasoned debate without sinking to ad hominems against either side, I would hope Justice Kennedy would adopt the same approach in the context of marriage that he did today in the context of racial preferences: 

Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor.  But that does not justify removing certain court-determined issues from the voter’s reach.  Democracy does not presume that some subjects are either too divisive or too profound for public debate.

As Kennedy also said, “This case is not about how the debate about racial preferences should be resolved.  It is about who may resolve it.”  In this and other major policy debates, the final word should be in the hands of the American people.

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