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Bench Memos

NRO’s home for judicial news and analysis.

Getting Things Backwards



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As Justice O’Connor once recognized, the Supreme Court’s pro-abortion rulings “make[] it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” Alas, O’Connor herself later adopted the same practice of ad hoc nullification when she co-authored the majority opinion in Planned Parenthood v. Casey (1992) and when she joined the Court’s opinion striking down Nebraska’s ban on partial-birth abortion (Stenberg v. Carhart (2000)). So long as Planned Parenthood v. Casey survives, the “abortion distortion” will continue to impair the ability of citizens to make abortion policy through the ordinary democratic processes.

Linda Greenhouse thus gets things backwards when she complains that judges haven’t been willing to treat abortion as “a right like any other.” But she inadvertently stumbles on the truth when she observes that “there are constitutional rights and then there is abortion” and distinguishes abortion from “those rights the Constitution actually protects.” (Emphasis added.) 

This Day in Liberal Judicial Activism—August 7



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2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

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Followup on Harris v. Quinn



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The National Right to Work Foundation notes this week that, in light of its U.S. Supreme Court victory a few weeks ago in Harris v. Quinn, “government union bosses from across the country are now abandoning their forced dues demands on home-based personal care and childcare providers,” and then gives chapter and verse. Relatedly, George Leef has this to say this week in favor of right-to-work laws.

This Day in Liberal Judicial Activism—August 6



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1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.

King Might Be Headed to the Supreme Court; Perhaps Halbig To Follow



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Last week, just over a week since what was probably the fastest circuit split in history, the plaintiffs in King v. Burwell filed their petition for certiorari with the Supreme Court.  That puts the case on a fast track to be considered by the Court during the upcoming Term.  And a good thing, too: this issue is already causing significant uncertainty in the insurance markets and ought to be decided conclusively as soon as possible.

Here’s how the process works: normally parties have 90 days to petition from an adverse ruling, but this issue is of such national importance that petitioners have moved forward with lightning speed.  The government will have until September 3, 2014 to file a brief in opposition to certiorari, and then the petitioners will have another 14 days to reply.  That means the briefing for the case should be done by mid-September, so the Court could be discussing the case and voting on certiorari as early as October.  An October conference would leave ample time to get on the oral argument calendar for this term.

The administration and its surrogates have been pushing the line that the split between the D.C. Circuit’s Halbig case and the 4th Circuit’s King decision is insignificant and assuring court watchers that a D.C. Circuit en banc panel will vacate the Halbig ruling.  

But I’m not so sure.

Clearly this type of case is exactly what the President had in mind when he made his court-packing blitz last year.  Rather than a 4-4 split of Republican and Democratic nominees on the D.C. Circuit, we now have a 4-7 split, with four of those Democratic nominees having come from this president, three of whom were specifically chosen in a campaign to eliminate the filibuster and pack the court.  Although the D.C. Circuit historically does not take many cases en banc — regarded as a sign of its collegiality — it’s possible that things have changed since the president’s nominees were seated.

But now those judges will have to decide whether they want their first high-profile act on the court to be one that is baldly political: overturning a meticulously-reasoned decision that overturned the IRS’s attempt to rewrite the Affordable Care Act.  It would make the new judges look like presidential pawns who are attempting to save his bacon, lowering them to the level of the disgraced and politicized IRS itself. 

Even if the D.C. Circuit judges are willing to take the fall for the President in this case, there probably won’t be time to undo the circuit split before the Supreme Court makes its decision about whether to hear the case. (If the D.C. Circuit could rush through it, that would look obviously political.) The government’s motion for rehearing en banc is due soon, but the court often takes months to decide the motion, schedule any additional briefing, and set an en banc hearing date. 

Thus the Supreme Court will likely be faced with an active circuit split when it considers the King petition.  It could, of course, refuse to decide until the outcome of the split becomes clear, but I think that is unlikely.  Even if the current split were resolved by a D.C. Circuit flip-flop, an Oklahoma district court is likely to issue an opinion soon that could easily lead to a 10th Circuit decision against the Administration.  Another case working its way through the lower courts in Indiana could deepen the split.  This issue is of obvious national importance, and fits into a pattern of executive overreach by this Administration that the Court has rebuked repeatedly (and often unanimously).  

The American people deserve to have the issue decided once and for all, and sooner rather than later.

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Dream or Nightmare?



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Two years ago, then-DHS Secretary Janet Napolitano issued a three-page memorandum setting forth a policy of non-enforcement of federal immigration laws in favor of a class of illegal aliens meeting certain criteria. That policy has come to be known as “Deferred Action for Childhood Arrivals” (or DACA).

Last month, in Arizona Dream Act Coalition v. Brewer, a Ninth Circuit panel preliminarily enjoined the state of Arizona from implementing a policy that prevents DACA recipients from obtaining Arizona driver’s licenses. The opinion, authored by liberal diehard Harry Pregerson, holds, among other things, that the Arizona policy likely violates the Equal Protection Clause.

Pregerson’s reasoning strikes me as highly suspect. He maintains that there is no rational basis for Arizona to distinguish between illegal aliens subject to DACA non-enforcement (who are not eligible for driver’s licenses under Arizona’s policy) and illegal aliens who have applied for adjustment of status and cancellation of removal (who can receive driver’s licenses). Pregerson asserts that Arizona is “assum[ing] for itself the federal prerogative of classifying noncitizens.” But what Arizona is doing is building on existing federal classifications of employment-authorization recipients. (Pregerson also contends that Arizona’s policy is contrary to what Arizona law “expressly requires,” but he provides no reason why he shouldn’t defer to state officials’ understanding of state law.)  

On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” (Emphasis in original). But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.

Pregerson’s opinion, I’ll note, gets off to a telling start. His first sentence asserts that the “federal government has enacted a program” called DACA, phrasing that gives the false impression—later corrected, to be sure—that Congress enacted legislation that created a program.

President Carter appointed Pregerson to the Ninth Circuit in 1979, when Pregerson was 56. Now 90, he remains in active (rather than senior) status and continues to wreak havoc. Pregerson would be much more notorious for his judicial excesses had he not been overshadowed for the past 35 years by his even more outrageous colleague Stephen Reinhardt.

Re: White House Misdirection on Executive Powers



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I missed Jonathan Adler’s excellent earlier post on the same topic. As he sums it up:

[T]he real objections to the President’s use of executive authority are not to the frequency of EOs [executive orders], signing statements, or regulations, but to the substance of specific actions and decisions that have been made.…

[T]hose responding to claims of executive overreach should actually respond to allegations of executive overreach. Pointing to pretty charts about the number of EOs is not a serious or substantive response.

The Case Against Rehearing En Banc in Halbig



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In today’s Wall Street Journal, Adam J. White has an excellent op-ed (subscriber-only, I think) arguing that the recent D.C. Circuit panel decision on Obamacare exchange subsidies in Halbig v. Burwell doesn’t meet the D.C. Circuit’s very high standard for en banc review. His closing paragraph:

Those who claim that the D.C. Circuit will rehear the case en banc do no service to the court’s judges, who know the threat that overtly politicized en banc rehearings pose to the court’s collegiality. The controversy surrounding HHS’s federal exchanges should be resolved promptly by the Supreme Court. There’s no need to tarry any longer at the D.C. Circuit. 

White House Misdirection on Executive Powers



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President Obama’s aggressive use or abuse of his executive powers is arousing intense controversy. On the Washington Post’s Monkey Cage blog, Bowdoin politics professor Andrew Rudalevige explains very clearly how the White House’s primary line of defense—that Obama has issued fewer executive orders than most of his recent predecessors—is an exercise in misdirection. Executive orders, after all, are merely one type of presidential directive, whereas the controversy

is about executive actions more broadly. While Obama issued only 20 executive orders in 2013 (the lowest single-year total in more than a century), that same year he issued 41 presidential memoranda to the heads of departments and agencies, along with nine additional presidential “determinations” designed to serve as the basis for bureaucratic behavior.

And there are lots of other avenues for that. We could include regulatory action, signing statements, legal interpretations, and administrative orders technically issued by department heads but at the behest of the White House.  

Rudalevige then runs through “a few of the greatest hits [eight, actually] touted by those who feel Obama has abused his executive authority” and points out that none involved Obama’s use of a formal executive order. (H/t Jonah Goldberg.)

No, Chris Christie’s Judicial Nominees Were Not Conservative



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As frequent Bench Memos readers will know, I’ve long been following Governor Christie’s judicial misadventures.  I and my colleagues at JCN were encouraged by his campaign pledges to remake the New Jersey judiciary and nominate judges who would “interpret laws and the Constitution, not legislate from the bench.” But his subsequent failure to make good on these promises has been at best profoundly incompetent and at worst a dishonest sellout of the judiciary to advance his personal political goals.  That’s why we launched www.christiebadonjudges.com and have been highlighting his judicial record in TV, radio, and digital ads.

The campaign has garnered significant press attention, interfering with Christie’s post-scandal comeback campaign. So Christie has finally responded, calling JCN “cowards” and accusing us of not supporting his conservative nominees.

Governor Christie is indeed back. Back to his old form of name-calling and bullying when cornered.

In this case we can add un-informed bullying.

JCN actually gave qualified support to his first nominee Anne Patterson based primarily on assurances about her judicial philosophy from the governor’s office. We haven’t made that mistake again. That is not cowardice, that is conscience.

So, yes, we haven’t supported the cronies and hacks he has put forth as judicial conservatives — and which he still claims were conservative nominees.

We urge the governor to criss-cross the country defending his “conservative” nominee Bruce Harris who had to admit he had hardly ever stepped into a courtroom, but whose shrewd legal mind had concluded opposition to same-sex marriage was equivalent to slavery and segregation.

Governor Christie’s support of Sonia Sotomayor — and his dismissive attitude toward those who opposed her — should be sufficient evidence of where his constitutional compass points.

Or perhaps that’s just a weathervane.

 

 

 

 

 

Misapplying McCullen v. Coakley



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In the Court’s recent ruling in McCullen v. Coakley, all nine justices agreed that the Massachusetts statute that created a general no-speech zone on public streets and sidewalks within 35 feet of an abortion clinic violated the First Amendment.

Although the justices divided sharply, 5-4, on their reasoning, all agreed that the effect of the statute on speech on public streets and sidewalks was critical to their analysis. Chief Justice Roberts’s majority opinion (joined by the four liberals) emphasized that “public streets and sidewalks” are “traditional public fora”—“areas that have historically been open to the public for speech activities”—and that the “government’s ability to restrict speech in such locations is ‘very limited.’” Justice Scalia’s concurrence similarly emphasized that public streets and sidewalks “are traditional forums for speech on matters of public concern” and thus “‘hold a special position in terms of First Amendment protection.’”

Evidently missing this critical point, a state judge in North Carolina has reportedly purported to apply McCullen to protect persons arrested for protesting inside North Carolina’s legislative building. But there is nothing in the news report about the ruling that would remotely suggest that the inside of North Carolina’s legislative building would qualify as a full-fledged traditional public forum. And it would be surprising indeed if there has historically been unrestricted public access to that building for speech activities.

This Day in Liberal Judicial Activism—August 4



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1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine.

Disputing or disproving Douglas’s assessment that collective action by the justices is impossible during the recess, the Court, in an order written by Justice Marshall and agreed to by the seven other justices, overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.”

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court.

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses.

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition.

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself.

This Day in Liberal Judicial Activism—August 3



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1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee.

Twitter, Facebook, and More



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If you’re interested, my Twitter account is @EdWhelanEPPC. My Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere.  Just fill out the form below.  If you do sign up, you’ll receive an e-mail asking you to confirm. Please note that your e-mail address will not be visible to other folks on the list and that I will make no other use of your e-mail address.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

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Secret Rehnquist Lunch with Bush 43 Disclosed



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Here’s a revelation: Ten years ago, when rumors about Chief Justice Rehnquist’s declining health and possible retirement were circulating, President George W. Bush invited Rehnquist to the White House for lunch and Rehnquist accepted. At the lunch, Bush and Rehnquist discussed the Court. Asked why Bush invited him, Rehnquist replied:

Maybe to talk about the court. Maybe because he likes me. I like him.

Actually, I’m making this up. Had anything like that happened, there would have been a massive media outcry. Together with the secret lunch, Rehnquist’s hypothetical statement that he likes Bush would have been cited as cause for his recusal in cases important to the president. Knowing that any such lunch would invite intense media examination and calls for investigation, the Bush White House never would have contemplated the lunch. (President Bush did invite all the justices and their spouses to a dinner near the end of his presidency.)

It turns out, though—as I’ve learned from this article in which reporter Joan Biskupic recounts her recent interview with Justice Ginsburg—that President Obama and Ginsburg had lunch at the White House last summer, that they talked about the Court, and that Ginsburg offered the explanation I quote above (including “I like him”). Don’t hold your breath waiting for the media outcry.

Let me hasten to add that I don’t have clearly in mind where the ethical line ought to be drawn on contacts between the president and a Supreme Court justice, and I am not contending that there was anything improper about the lunch. But I do think that the ethical line ought to be the same for Democratic presidents and liberal justices as it is for Republican presidents and conservative justices. 

Ginsburg’s Hobby Lobby Gaffes



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Let’s set aside the legal errors that pervade Justice Ginsburg’s dissent in Hobby Lobby and focus only on her public misstatements about the case: Ginsburg bizarrely asserts that her dissent “really didn’t turn on the difference between a corporation and a sole proprietorship.” She mischaracterizes (see second paragraph here) the majority’s opinion as resting on the Free Exercise Clause rather than the Religious Freedom Restoration Act. And she doesn’t understand that it was the Obama administration, not Congress, that imposed the HHS mandate.

To be clear: I’m not suggesting that Ginsburg has slowed. Rather, I think that her gaffes provide further evidence that her ideology, rather than careful legal analysis, drove her to the result she reached in Hobby Lobby

For Ginsburg, a Human Being Isn’t a RFRA “Person” Either



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I’ve discovered that I have been far too charitable to Justice Ginsburg regarding her Hobby Lobby dissent.

Recall that the first ground on which Ginsburg would have ruled against Hobby Lobby was her (badly misguided) proposition that a for-profit corporation is never a person capable of an exercise of religion within the meaning of the Religious Freedom Restoration Act. (Justice Breyer and Justice Kagan refused to join this part of Ginsburg’s dissent.) Well, it turns out that Ginsburg also somehow believes that a flesh-and-blood human being, when operating in the world of commerce, is also not a person capable of an exercise of religion within the meaning of RFRA. As she tells Katie Couric (somewhere around the 2:20 mark in the “Hobby Lobby Dissent” video available here):

But I should stress that my Hobby Lobby dissent really didn’t turn on the difference between a corporation and a sole proprietorship. My point was that no employer, whatever the business form, should be able to transfer that employer’s religious belief onto people who do not share that belief.

So Ginsburg is now telling us that her real “point” isn’t the actual ground she set forth. Worse, what she now calls her real “point” is inconsistent with her analysis (as well as with any conceivable reading of RFRA). In arguing that the Free Exercise case law that preceded RFRA provided “no support for the notion that free exercise rights pertain to for-profit corporations,” Ginsburg tried to distinguish away Gallagher v. Crown Kosher Super Market (1961) on the ground that four of the five challengers “were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litigation.” But she now maintains that human individuals engaged in commerce (as the individual challengers in Gallagher were) somehow have no RFRA rights at all.

From Ginsburg’s own account, it would appear that she was driven by her ideology to contort the meaning of RFRA to reach the result she wanted to reach. (Ginsburg’s notion that a person invoking the protections of RFRA “transfer[s]” his beliefs onto others also reflects her hostility to RFRA.)

Scott Lemieux: Murphy’s Scalia Bio a “Major Disappointment”



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Still catching up on things from two weeks ago, I’d like to highlight this post from Scott Lemieux on Bruce Allen Murphy’s biography of Justice Scalia (which I have reviewed, very unfavorably, in this National Review piece and in a series of blog posts accessible here).

Lemieux, for what it’s worth, is situated well on the left side of the ideological spectrum. His assessment of Murphy’s book is very much the assessment that I would think any intelligent and well-informed liberal would have.

Responding to a reader, Lemieux first addresses my critique of Murphy’s stunningly incompetent account of Scalia’s dissent in Hamdi v. Rumsfeld. Lemieux fully embraces my critique: Murphy’s “dumbfounding passage” is “every bit as bad as he [Whelan] says” and is “the kind of mistake that forfeits a reader’s trust”:

We all make mistakes, but this is like saying that Dred Scott found all state slave codes to violate the 5th Amendment or that Lawrence v. Texas reaffirmed Bowers v. Hardwick. It’s mystifying.

More generally, Lemieux calls Murphy’s biography a “major disappointment.” As he gently puts it:

[A] lot of the book is taken up with Murphy’s analysis of what Scalia contributes to the United States Reports, and this really isn’t Murphy’s strong suit. Again, the hash [he] makes of Hamdi seems to be an outlier, but he’s sometimes shaky on basic concepts … and even when his doctrinal analysis is unobjectionable it’s pedestrian. 

Katie Couric’s Softballs



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The series of softballs that Katie Couric pitches to Justice Ginsburg on Hobby Lobby is something to behold. From the video here:

Couric: All three women justices were in the minority in the Hobby Lobby decision. Do you believe that the five male justices truly understood the ramifications of their decision?

Ginsburg: I would have to say no. But justices continue to think and can change. I am ever hopeful that if the court has a blind spot today, its eyes will be open tomorrow.

Couric: But you do in fact feel these five justices had a bit of a blind spot?

Ginsburg: In Hobby Lobby? Yes. Yes, I did.

Couric: And why was that?

Ginsburg: The same kind of blind spot the majority had in the Ledbetter case.

Couric: Because they couldn’t understand what it is like to be a woman?

Oddly, in explaining her position in the Hobby Lobby case, Ginsburg asserted that Hobby Lobby’s owners “have no constitutional right to foist [their religious] belief” on their employees, and she also complained that the Free Exercise Clause had never been so interpreted. She seemed not to have clearly in mind that the Hobby Lobby ruling rested on the Religious Freedom Restoration Act, not on the Free Exercise Clause. But, needless to say, Couric was clueless on that point.

Addendum: Ginsburg, Sotomayor, and Kagan take the positions they do because they’re liberals, not because they’re women. As I’ve pointed out before, other (and better) female judges have ruled in favor of religious-liberty challenges to the HHS mandate. It’s those who believe that all women do or should adopt the liberal feminist-prescribed position who suffer from a massive blind spot.

Ginsburg’s Lace Collars



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Reinforcing sexist stereotypes, Justice Ginsburg has revealed to Katie Couric that she has a collection of lace collars to accompany her judicial robe and that she “has a special collar she wears for when she’s dissenting, and another for when she is in the majority.” So for those in the audience at the Supreme Court on announcement days, there is another tea leaf to read as they await announcements.

No word whether Ginsburg changes collars after one ruling has been announced and before the next.

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