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Bench Memos

NRO’s home for judicial news and analysis.

Making the Case for Kansas Judicial Reform



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Writing in the Wichita Eagle, Melika Willoughby cogently lays out the case for much-needed reform of the selection process for judges serving on the Kansas Supreme Court. As in so many other states, an unelected panel of attorneys and special appointees selects a short list of candidates – three, to be exact – and the governor must pick one of the three. But the Kansas system is unusual. As Ms. Willoughby explains:

Though 13 states use a similar appointment process, which sometimes goes by the erroneous name of “merit selection,” only Kansas gives majority control to an unaccountable group of lawyers. The procedure puts final appointment authority in the hands of trial lawyers who just last week may have been having coffee with the same tort-baron friends they are now recommending for the state’s highest court. These court-controllers never stand for election, allowing them to subject the rule of law to their personal political ideology.

And they do just that. The empirical data shows that nominees emerging from such committees overwhelmingly lean left. That sort of lopsided result highlights the fundamentally flawed premise behind all of these supposedly apolitical selection processes: 

But men and women, upon entering the committee room, cannot simply check their political views at the coatrack. Nonpolitical decision makers are mythical creatures.

Read the whole thing.

Supreme Court Reviews Lower Court Invalidation of EPA’s CSAPR Rule



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Last year, I updated Bench Memo readers on a development to the challenge of EPA’s Cross-State Air Pollution Rule (CSAPR). Judge Brett Kavanaugh, writing for the U.S. Court of Appeals for the District of Columbia Circuit asserted that “Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.” That decision went on to rule there was a second violation of the Clear Air Act involving EPA’s implementation of the “Good Neighbor” provision at the heart of the regulation.

Today the Supreme Court heard oral arguments in the case (docket No. 12-1182). One key aspect is if the Act allows the federal government to consider dollar costs when determining which State must take action for offsetting pollution to another state. Here, EPA is asserting that “amounts” means dollar amounts, an interpretation that can only be understood if context is ignored. In the context of the Act, “amounts” clearly refers to amounts of pollution, not dollars related to remediating that pollution. To paraphrase an example Justice Scalia used several years ago, if a statute were to speak of a “staple, screw, rivet, nail, buckle, or snap” it is wrong in that context to assert that the word “buckle” refers to the hull of a naval submarine in distress.

The other issue discussed at length centered on the unprecedented manner the EPA has adopted in issuing the CSAPR rule. The EPA is required to follow the statutory requirements of the Act, which affords states an opportunity to implement the pollution reductions that the federal government has specifically calculated. In this case, however, the EPA did not quantify each state’s obligations ahead of time. Instead, it released those calculated obligations at the same time it released a Federal Implementation Plan determining the means by which each state would meet its pollution-reduction objectives. The D.C. Circuit found that EPA’s unprecedented action violated the Act by eliminating the opportunity states had to craft their own compliance plans. 

The outcome of this case is important. If the Supreme Court strikes down the D.C. Circuit ruling and allows the EPA’s actions to stand, the relationship between the federal government and the states in implementing the Clean Air Act will transition from cooperative to coercive. Part of the reason the statute allows states time to craft their own rules once the EPA has announced state-specific obligations is simple: States are better positioned to determine trade-offs that best achieve those goals than someone in Washington. An overturning of the lower court opinion would put states in a position of either carrying out the federal government’s orders or ceding the environmental protection role within their state permanently. 

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This Day in Liberal Judicial Activism—December 9



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1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft. In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

This Day in Liberal Judicial Activism—December 8



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1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.

In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”

Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

How to Lie With Statistics, Filibuster Edition



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The rhetoric surrounding the Senate rule change that eliminated the filibuster for judicial and executive nominees has provided numerous textbook examples of how to lie with statistics.

The Atlantic’s Andrew Cohen takes this disregard for truth to a new level. Responding to Judge Wilkinson’s op-ed lamenting the use of the nuclear option, Cohen claims that “hundreds of judges around the nation” have “crushing workloads” because of a “logjam of appointments” blocking the judiciary from operating “at or near capacity.” Parroting Democratic talking points, Cohen blames Senate Republicans’ use of the filibuster for “help[ing] create or continue” the 38 current judicial emergencies, along with the 94 current judicial vacancies.

While there are real judicial emergencies, Cohen’s description and diagnosis of the problem are simply factually untrue.

For starters, the filibuster is a red herring. Cohen claims “dozens” of Obama nominees have been stopped by the filibuster; in fact, there have been only eight successful filibusters during all of Obama’s tenure in the White House, for six different nominees. One of those was later confirmed. That’s a total of five nominees blocked by the filibuster. Meanwhile, 209 Obama nominees have been confirmed.

What’s more, the instances when the filibuster was used it had nothing to do with perpetuating judicial emergencies. One nominee – later confirmed – was blocked only because of a longstanding Senate policy of not confirming nominees late in an election year. The others were all nominees to the D.C. Circuit and were blocked because of concerns that the court had too low a workload. Far from being somewhere litigants are forced into long delays, the D.C. Circuit actually cancels sittings because they don’t have enough cases.

To hear Cohen tell it, there are “hundreds of judges” being​ crushed by their workload, while worthy nominees are caught in a “logjam of appointments.” Unfortunately, the truth is that the logjam is being held up by Democrats, not Republicans.

For example, Cohen complains of a judicial emergency in North Carolina that has been unfilled since 2005, but neglects to tell the rest of the story: Democrats blocked President Bush’s nominee for years, not even affording him a hearing despite his having received the highest ratings from the ABA. President Obama withdrew that nomination, but didn’t get around making a pick of his own for the spot until June of 2013, five and a half years after he took office. And we are supposed to blame the prolonged vacancy on the Republicans?

That case is not unique. The Obama Administration has largely neglected judicial nominations, spending the vast majority of his first term with nominees for fewer than 50 percent of the available vacancies. After being criticized by his own base for letting the courts slide, he managed to pick up the pace, but still can’t seem to come up with nominees for more than 55 percent of the available slots. Even five years into the Obama Administration, 42 out of 94 vacancies have no nominee, including 17 of the 38 “judicial emergency” seats.

I agree with Cohen on one thing: The rule change is a good thing for the Senate. Before, Senator Reid was able to strongarm Senate Republicans into not using the filibuster by simply threatening to change the rules. That allowed him to have his cake and eat it too by leaving the filibuster in place for when Democrats are in the minority again. The rules change was a scorched-earth move that in the long term will decrease minority power for both parties, but at least will do so on even terms. And I trust Senate Republicans will remember and won’t pull any punches when they are once again in the majority.

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Senator Landrieu’s Deception



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Senator Landrieu has decided to ratchet up her deception of Louisiana voters by lying about my organization’s ad exposing her. She calls it “blatantly false,” but never identifies a single factual error. Instead she tries to change the subject.

Landrieu pointed out that some of the judges she voted for received bipartisan support and others never won confirmation. Unfortunately, that does nothing to contest the basic factual claim of the ad: that she has voted for every one of the president’s nominees. 

Landrieu also seems to think her actions were less problematic because two of the nominees mentioned in the ads — Caitlin Halligan and Goodwin Liu — weren’t ultimately confirmed. But, as the linked roll-call votes indicate, she still did support them, despite their radical backgrounds.

She also suggests she should get a pass for her votes because back in 2005 she was part of the Gang of 14, a bipartisan group that brokered a deal to get some of President Bush’s judicial nominees confirmed. But Landrieu conveniently omits the fact that she had been part of the problem: She voted to filibuster all five of the nominees the Gang of 14 ultimately agreed to confirm, along with five other nominees who weren’t so lucky.

Senator Landrieu may want to present herself as a moderate back home in Louisiana, but when it comes to judges, there’s no daylight between her and President Obama.  

Re: This Day in Liberal Judicial Activism for December 5



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Oops. My mistake in referring to “now-Eleventh Circuit judge Rosemary Barkett.” As promised, This Day Hall-of-Famer Barkett retired from the Eleventh Circuit on September 30 in order to become one of nine arbitrators on the Iran-United States Claims Tribunal in The Hague.

Rick Garnett on HHS Mandate Cases



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Notre Dame religious-liberty scholar (and occasional Bench Memos contributor) Rick Garnett has an excellent op-ed in the Los Angeles Times on the HHS mandate cases. Here are excerpts:

At the heart of these two cases is the straightforward argument that federal law does not require us to “check our faith at the door” when we pursue vocations in business and commerce.…

The issue is not whether groups, associations and corporations have religious freedom rights under federal law. Of course they do. After all, religious hospitals, schools, social service agencies and churches are not “individuals,” but it would be bizarre to say that they don’t exercise religion.

And the question should not be whether legal protections for religious liberty stop at the sanctuary door or evaporate when a person is trying to make a living or a business is aiming to make a profit. At a time when we talk a lot about corporate responsibility and worry about the feeble influence of ethics and values on Wall Street decision-making, it would be strange if the law were to welcome sermonizing from Starbucks on the government shutdown but tell the Greens and Hobby Lobby to focus strictly on the bottom line.

The Religious Freedom Restoration Act reaffirmed an idea that is deeply rooted in America’s history and traditions — namely, that politics and policy should respect and, whenever possible, make room for religious commitments and conscientious objections. True, religious liberty is not absolute, and, in a pluralistic society like ours, not all requests for exemptions and accommodations can, or should, be granted. Some religious liberty lawsuits will, and should, fail, but not simply because they involve what happens at work on Monday and not what happens in services on the Sabbath.

This Day in Liberal Judicial Activism—December 5



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1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider future now-*  Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona. Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge. Under an express exception (“(b)(1)”) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.” But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling. “The language of (b)(1),” it concludes, “is without ambiguity…. Clearer language than this is difficult to envisage. Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

* Correction.

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them. In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms. Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear.”

Dissenting months later from the denial of rehearing en banc, Judge Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.… But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.” “The military meaning,” Kleinfeld acknowledges, “is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’ But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’” And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.” Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices reject Reinhardt’s position (even as they split 5-4 on the scope of the individual Second Amendment right).

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

Eugene Volokh on RFRA and Substantial Burden



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In the latest of his ongoing series of posts on the HHS mandate cases, law professor Eugene Volokh dismantles the Obama administration’s badly confused argument that the HHS mandate doesn’t substantially burden objecting employers’ exercise of religion because it doesn’t compel them to use or administer the contraceptive drug they object to. Some judges, including dissenting Seventh Circuit judge Ilana Rovner here, have embraced the argument, and it’s a staple of commentary from the Left. (I’ve refuted the argument on various occasions, including here.)

Here are some excerpts from Volokh’s post (though I again encourage you to read the whole thing, including his fuller discussion of the governing Supreme Court precedent of Thomas v. Review Board):

[U]nsurprisingly, many people believe that, when some behavior is wrong, many sorts of complicity with that behavior are wrong, too.… Where the connection becomes too attenuated, and morally or religiously culpable complicity stops, is a question on which reasonable people will differ.

But for purposes of RFRA, the question isn’t whether a judge or jury agrees with a person’s claim that a law [that] requires him to engage in behavior is sinful — it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line as to complicity; it is whether he sincerely believes that the complicity is sinful.…

Thomas v. Review Board (1981) is the classic illustration of this. Thomas had been working at a machinery company, and was transferred to a department that produced tank turrets. Thomas refused to work on such military production, and was fired. Under the Court’s Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion.…

Thomas wasn’t, of course, being required to kill anyone using a tank, to fire a tank gun, to ride in a tank helping the gunner, or to assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets — though not making steel that would go into a tank — was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The “substantial burden” requirement didn’t require that the connection be “substantial” enough in the secular legal system’s understanding of complicity.…

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools, or hiring employees who use those tools, is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line, and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners … but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

En Banc Sixth Circuit Rejects Crackheaded Panel Ruling



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The en banc Sixth Circuit has soundly rejected the crackheaded conclusion of a divided panel that the more lenient sentences of the Fair Sentencing Act apply to crack-cocaine offenders who were sentenced before the Act’s effective date. As Judge Sutton sums it up it his majority opinion:

Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States, 132 S. Ct. 2321, 2332 (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.

For a very simple case, the vote was a surprisingly close 10-7. On this very polarized court, one Clinton appointee, Ronald Lee Gilman (who dissented from the panel ruling) joined Judge Sutton’s opinion, and another, Karen Nelson Moore, concurred in the judgment while also expressing her reservations at length.

The biggest surprise is that Bush 43 appointee John M. Rogers was among the dissenters. Indeed, he wrote the lead dissent. I’m not familiar with Rogers, but I see from his bio that he was a law professor for more than two decades before joining the Sixth Circuit, so his weak dissent may be yet another warning against the perils of turning law professors into judges.

Eugene Volokh on Corporations and RFRA Rights



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In the latest of his ongoing series of posts on the HHS mandate cases, law professor Eugene Volokh explains why the individual owners of a closely held corporation have religious-liberty rights with respect to burdens imposed on that corporation. Here’s an excerpt (but I encourage you to read his whole post):

[I]f we see through the fiction of the “corporation” when it comes to rights, we should do the same when it comes to burdens. If you and your sister co-own a corporation that owns a market, and you believe it wrong for lottery tickets to be sold on your property, saying “there’s no burden on you, because only the corporation is required to sell the tickets” is a legal fiction, too. When people consider their moral or religious obligations, they don’t (I hope) let such fictions affect their sense of their duties. Neither should the legal system let such fictions obscure the burden that legal commands can impose on the owners of closely held corporations.

Indeed, all the talk in recent years of “corporate social responsibility” reflects this. I doubt that anyone thinks that “corporate social responsibility” stems from the social or moral obligations of a fictional legal entity as such. Rather, the theory is that the owners and managers of a corporation have moral duties to make sure that the corporation is run in an ethical, “responsible” way (with what constitutes ethical of course turning on the views of the person making the social responsibility arguments).

The moral obligations of human beings, the argument goes — correctly, at that level of generality — do not stop when the legal fiction of the corporation intervenes. Corporate owners can’t say, “Hey, it wasn’t me who created these social harms, it was the corporation that I own.” The same, I think, applies when we analyze the religious burden on owners when a law prevents them from doing what they see as part of their religious social and moral responsibility.…

So to determine the proper scope of corporations’ religious freedom rights (or other rights, such as free speech, constitutional property rights, or freedom from self-incrimination) one needs to go behind the legal fiction. One needs to ask: to what extent does government action with respect to a corporation burden the rights of real people? …

Do restrictions on corporations sometimes burden the religious practice of individuals? Sometimes, the answer is uncontroversially yes. Churches don’t believe or pray, either, but restrictions on churches interfere with the ability of individuals to participate in collective religious exercise.

Likewise, though for a different reason, with closely held corporations. If such a corporation is required to do something, the owners of the corporation may believe that this is obligating them to participate in that thing — as a matter of reality and of moral and religious obligation, setting aside the legal fiction. If they so believe, and they believe that this violates their religious beliefs, then the law substantially burdens their religious beliefs, even though it does that through imposing an obligation on a corporation. They face the same choice that sole proprietors or partners face: violate their religious obligations, violate the law and face the penalties for violating the law, or sell off their share of the business, which may be a very grave financial burden.

Volokh also points out that in Gallagher v. Crown Kosher Market (1961) three justices “would have ruled for the incorporated market [on its Free Exercise challenge to a Sunday-closing law], and thus must have concluded that the corporate ownership of the market was irrelevant.” (Emphasis added.) These three justices were Justice Douglas, Justice Brennan, and Justice Stewart, “hardly corporation-loving extremists.”

This Day in Liberal Judicial Activism—December 3



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2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a unanimous per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

Doesn’t Think?



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After my long post on embryo-killing “contraceptives,” I’ll limit myself to a couple of additional comments on Linda Greenhouse’s op-ed on the HHS mandate cases (titled “Doesn’t Eat, Doesn’t Pray and Doesn’t Love”):

1. Greenhouse contends that the real objection to the HHS mandate “has to be not to the mandate’s actual impact but to its expressive nature, its implicit endorsement of a value system that says it’s perfectly O.K. to have sex without the goal of making a baby.” That’s a very odd conclusion.

For starters, the Hobby Lobby plaintiffs themselves, as well as many other non-Catholic challengers to the HHS mandate, have made clear that they have no objection to methods of contraception that don’t present the risk of embryo-killing (that don’t, in other words, have a possible secondary means of operation that is abortifacient). It’s thus clear that they have “a value system that says it’s perfectly O.K. to have sex without the goal of making a baby.” (They may well object to nonmarital sex—with or without the goal of making a baby—but that’s a different matter.)

Although it may come as news to Greenhouse, under Catholic moral teaching it’s also “perfectly O.K.” for married couples “to have sex without the goal of making a baby.” It’s one thing not to have the “goal of making a baby” (a goal that would be implausible for couples of a certain age); it’s quite another thing to have the goal of not making a baby. (I set aside here the intricacies of Catholic teaching on natural methods of family planning.)

What objecting employers clearly object to is being dragooned, in violation of their religious consciences, to be the vehicle for the Obama administration’s goal of marginally increasing contraceptive access. There is nothing merely “expressive” about that dragooning or about the massive fines that religious objectors face.

And what millions of other Americans object to is the Obama administration’s trampling of the religious-liberty rights of those employers—not just the for-profit, closely held family corporations that are prominent in the litigation that has proceeded furthest, but also the countless religious nonprofits which the Obama administration initially left with no protections and to which it has only belatedly extended its phony accommodation (and also the many houses of worship and religious orders that were not clearly eligible for the Obama administration’s initial exemption).

2. Greenhouse contends that those resisting the HHS mandate are engaged in a “culture war … on modernity.” But that’s true only if “modernity” necessarily entails hostility to claims of religious conscience.

On Embryo-Killing “Contraceptives”



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In reading Linda Greenhouse’s reflections on the HHS mandate cases, I was surprised to run across her assertion, in passing, that the Hobby Lobby plaintiffs are incorrect to believe that some FDA-approved methods of contraception “act after fertilization to prevent a fertilized egg from implanting and continuing to develop.” After all, the Obama administration itself, in its certiorari petition in Hobby Lobby, approvingly cited the FDA’s Birth Control Guide for the propositions that an IUD “may prevent the [fertilized] egg from attaching (implanting) in the womb (uterus)”; that Plan B “may also work … by preventing attachment (implantation) to the womb (uterus)”; and that ella “may also work by changing the lining of the womb (uterus) that may prevent attachment (implantation).” (Cert petition at 10-11 n. 5.)

Greenhouse contends that “a brief filed by a coalition of leading medical authorities demonstrates” that FDA-approved methods of contraception can’t “act after fertilization.” But a careful reading of the brief shows that it demonstrates no such thing—and in fact acknowledges the opposite. (The lead amicus on the brief is Physicians for Reproductive Health, so I will refer to the brief as the PRH brief.)

The PRH brief confusedly interweaves two distinct arguments. One argument (which is not the focus of this post) is that drugs that, in addition to preventing contraception, also sometime operate to prevent implantation in the uterus of a fertilized egg should not properly be referred to as abortifacients. The basic argument is that the term abortifacients should be reserved for drugs that operate after pregnancy (i.e., implantation). The PRH brief even contends that the word contraceptive should cover the effect of preventing implantation of a fertilized egg. But as I’ve explained before (in the footnote to this post), I don’t see how an effect that operates after conception can fairly be described as contraceptive. As between abortifacient and contraceptive, the former term better captures the fact that this second means of operation destroys the life of an already existing human embryo. (But perhaps we could all just agree on the term embryo-killing?)

The PRH brief’s second argument, set forth initially in seemingly absolute terms, is that “scientific research shows that Plan B and ella both function by inhibiting or postponing ovulation; they do not prevent [post-ovulation] fertilization or implantation.” (P. 9.)

The PRH brief, however, undercuts its own argument. Six pages later, it claims only: “As established by the weight of the evidence, LNG and UPA [the active ingredients in Plan B and ella, respectively] function primarily, if not exclusively, by inhibiting ovulation, thereby preventing fertilization from occurring.” (P. 15 (emphasis added).) In other words, the PRH brief here claims only that inhibiting ovulation is the primary effect of these contraceptives, and even that claim meets only the low standard of “the weight of the scientific evidence”—well short of compelling scientific proof.

The PRH brief goes on to assert that “current evidence shows” that Plan B “is not effective after ovulation has already occurred.” (P. 15.) Again, that phrasing is far weaker than its initial statement of its argument. Ditto for the brief’s assertion that “there is no evidence that [ella] affects implantation” (p. 16)—which is not equivalent to the proposition that there is compelling evidence that ella does not affect implantation. Indeed, the reader learns a page later that “whether, in fact, ella has an effect sufficient to prevent implantation of a fertilized egg is unknown.” (P. 17 (emphasis added).)

Further, it seems to have escaped Greenhouse’s notice that the PRH brief’s second argument doesn’t even cover IUDs. The PRH brief acknowledges that the copper IUD, when used as emergency contraception, “could also act to prevent implantation, due to copper’s effect of altering molecules present in the endometrial lining.” (P. 19 (emphasis added).)

In sum: Contrary to Greenhouse’s assertion, the PRH brief establishes that the Hobby Lobby plaintiffs are right to believe that copper IUDs can operate to prevent implantation (and thus to kill the developing human embryo). The PRH brief also reveals, if backhandedly, that the state of the science on whether Plan B and ella can also operate to prevent implantation is not definitively settled—and thus, given their objections to facilitating the destruction of human embryos, amply justifies the Hobby Lobby plaintiffs in resolving the scientific uncertainty against providing coverage of Plan B and ella (in addition to copper IUDs).

(I don’t mean by this post to suggest that a person’s religious beliefs must meet some scientific test in order to be protected under RFRA or the First Amendment. That is plainly not the case. But insofar as Greenhouse and others seek to disparage the Hobby Lobby plaintiffs as a bunch of Flat Earth yokels, their effort is ill-founded.)

Aborting the Filibuster



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According to this New York Times article, “abortion and contraceptive rights became the decisive factor” leading Senate Democrats to abolish the filibuster for judicial nominees. That shouldn’t come as a surprise to anyone who has been paying attention in recent decades to how dominant abortion is in the priorities of the Democratic Party.

While I’m at it, though, I’ll point out some errors in the NYT article:

1. The article states:

[Democratic leader Harry] Reid and many members of his caucus found it especially disquieting that in 2005 they agreed to confirm the two judges who wrote the recent decisions — Janice Rogers Brown of the United States Court of Appeals for the District of Columbia Circuit and Priscilla R. Owen of the United States Court of Appeals for the Fifth Circuit — as part of a deal with Senate Republicans.

But Reid and nearly all members of his caucus voted against the confirmations of Brown and Owen. Brown was confirmed by a vote of 56-43, with only one Democrat supporting her. Owen was confirmed by a vote of 55-43, with only two Democrats in support.

Further, Democrats didn’t strike a general “deal” with Republicans. There was only a very limited agreement between seven Democrats and seven Republicans—the so-called Gang of 14 agreement. (See point 3 here for more.)

2. The article claims that Judge Brown’s D.C. Circuit decision in favor of a challenge to the HHS contraceptive mandate “likened the government’s requirement that the company cover birth control for its employees to affirming ‘a repugnant belief’ and wrote that the company would be forced to be ‘complicit in a grave moral wrong.’” (The opening paragraph of the article likewise claims that the opinion “compared contraception to ‘a grave moral wrong.’”)

Brown’s opinion uses the  phrase “a repugnant belief” twice (pp. 19-20)—both times in quoting Justice William Brennan’s statement of the old Free Exercise standard that the federal Religious Freedom Restoration Act restored. Her references to “a repugnant belief” and “complicit in a grave moral wrong” (p. 20) are describing, from the perspective of the religious objectors, the dilemma that the HHS mandate places them in. One can recognize that dilemma, and one can describe it as Brown has, without endorsing the moral positions of the religious objectors. So, in context, I don’t think that it’s accurate to maintain that Brown is expressing her own views about contraceptives that sometimes might operate as abortifacients.

Every Single One, Senator Landrieu Edition



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Senators such as Mary Landrieu  and Mark Pryor like to pretend they are right-leaning Democrats when they are back home, but then confirm judicial nominees who serve as their proxy votes in the federal courts where most of our nation’s most significant public-policy debates are being settled.  If Senators Landrieu or Pryor were to vote the way President Obama’s judges have — against an individual right to bear arms, in favor a national right to same-sex marriage, for more and more power for unaccountable regulatory agencies like the EPA — they would be looking for new careers. Yet very little has been said about the fact that their support for judicial nominees who’ll vote like that might be even more meaningful.

My organization, the Judicial Crisis Network, seeks to change that.  Today we launched a television ad campaign in Louisiana, drawing attention to the fact that Senator Landrieu has never voted against one of President Obama’s nominees to federal court. Last month we ran a similar ad in Arkansas, drawing attention to Senator Pryor’s record. The way things are going, we might need to do the same in Alaska, where Senators Begich and Murkowski have also served as unqualified rubber stamps for Obama’s far-left judicial nominees. Here’s the Senator Landrieu ad:

This Day in Liberal Judicial Activism—December 2



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2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “for nearly 29 years.” Justice Thomas responds:

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since JUSTICE STEVENS proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.”

This Day in Liberal Judicial Activism—November 30



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1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.

1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.

1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers. In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany.

On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent). Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”

On remand, Barkett again concludes that an unlawful seizure occurred. This time, though, she is in dissent.

This Day in Liberal Judicial Activism—November 29



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2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students. In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.” According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts. Roberts makes short work of the Third Circuit’s reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.

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