Bench Memos

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This Day in Liberal Judicial Activism—March 7


2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy).

AAG Nominee Debo Adegbile’s Defeat—Part 2


Some additional observations on yesterday’s Senate vote of 52 to 47 against President Obama’s nomination of Debo Adegbile to be Assistant Attorney General for DOJ’s Civil Rights Division:

1. As a technical matter, the vote was on the motion to invoke cloture on the Adegbile nomination, not on confirmation itself. But because Senate Democrats recently abolished the 60-vote supermajority requirement for cloture on nominees, only a simple majority of senators voting was needed to invoke cloture. In other words, the vote on the cloture motion was clearly a proxy for the vote on confirmation. So the fact that seven Democrats voted against Adegbile on substantive grounds ought to mean that the nomination is dead.

(One trivial note: Senate majority leader Harry Reid changed his vote to no for purely procedural reasons, so there are really 48 senators who support Adegbile. The one senator who didn’t vote, John Cornyn, may be safely counted as a 52nd vote against.)

2. A further reason to expect the Adegbile nomination to be dead is that the vote generated ill will, and exposed divisions, among Democrats. As this Washington Post article reports:

A senior aide to one of the senators who voted against the nominee said several senators’ offices were “very angry” at the White House for moving ahead with the nomination even though it could leave Democrats who are facing tough reelection races vulnerable to attack ads.

“It’s a vote you didn’t have to take. It’s a 30-second ad that writes itself,” said the aide, who spoke on the condition of anonymity in order to speak frankly.

I don’t see how further arm-twisting on the nomination could lead any senators who opposed it yesterday to change their minds, and I don’t see how Democrats have anything to gain by prolonging the process.

3. One welcome consequence of the abolition of the supermajority cloture rule is to make Senate Democrats accountable for their votes. If (as Charlie Cooke suggests in a Corner post yesterday) the supermajority cloture rule were still in effect, the seven Democrats who oppose Adegbile would probably have been inclined to stand aside and let Republicans take the heat for blocking the nomination.

4. It’s remarkable that Reid scheduled the vote without knowing that he would win it. It’s a great lose-lose for Democrats. The Adegbile nomination is defeated, and red-state and purple-state Democrats who voted for him and who are up for re-election this November may pay heavily for doing so. That list includes Kay Hagan of North Carolina, Mary Landrieu of Louisiana, Jeanne Shaheen of New Hampshire, Mark Udall of Colorado, and Mark Begich of Alaska.


AAG Nominee Debo Adegbile’s Defeat—Part 1


Yesterday, seven Democratic senators joined Republicans to deliver a smashing defeat to President Obama’s nomination of Debo Adegbile to be Assistant Attorney General for DOJ’s Civil Rights Division.

Much of the opposition to Adegbile rested on his role—and the role of the NAACP Legal Defense and Educational Fund under his direction—in representing notorious cop-killer Mumia Abu-Jamal in habeas proceedings. That fact has led Adegbile’s supporters to claim that the defeat of his nomination contravenes, as Attorney General Eric Holder puts it, the “fundamental ideal that every accused individual has a constitutional right to counsel.” But that claim is badly confused:

1. As Senator Pat Toomey and Philadelphia district attorney R. Seth Williams (who, I’ll note, is both a Democrat and an African-American) explained in their recent Wall Street Journal op-ed against Adegbile’s nomination:

Let there be no mistake. Our concern is not based on the fact that Mr. Adegbile acted as an attorney for a criminal defendant. The right to counsel is a fundamental part of America’s criminal justice system, and no lawyer should be faulted for the crimes of his clients.

But it is one thing to provide legal representation and quite another to seize on a case and turn it into a political platform from which to launch an extreme attack on the justice system. When a lawyer chooses that course, it is appropriate to ask whether he should be singled out for a high-level national position in, of all things, law enforcement.

In other words, the principle that a lawyer shouldn’t be faulted for choosing to represent a criminal defendant still allows plenty of room to fault the lawyer for how he carries out that representation. As Toomey and Williams sum it up, “Under Mr. Adegbile’s leadership and through rallies, protests and a media campaign, the Legal Defense Fund actively fanned the racial firestorm.”

2. Contrary to what Holder’s quote would suggest, Abu-Jamal was not merely an “accused individual” at the time that Adegbile chose to represent him. He had been convicted and sentenced to death, and his conviction and sentence had been affirmed on direct appeal. As liberal law professor, and legal ethicist, Steve Lubet has observed, “There’s actually a stronger case here to identify [Adegbile] with the client because there’s more discretion about how to represent in these post-conviction proceedings.” (Lubet’s additional comments strike me as fully compatible with the distinction in point 1.)

This Day in Liberal Judicial Activism—March 6


1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” 

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent. As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles: “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.” Further:  “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process. The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg). But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation. Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit. This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.

This Day in Liberal Judicial Activism—March 5


1970—A three-judge district court, consisting of Seventh Circuit judge Otto Kerner Jr. and district judges John W. Reynolds and Myron L. Gordon, rules that a Wisconsin law, dating from 1858, that prohibits abortion before quickening violates the Ninth Amendment. (The Ninth Amendment sets forth a mere rule of construction: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”)

2012—Despite affirming the district court’s entry of a permanent injunction barring police from imposing content-based restrictions on roadside demonstrations by anti-abortion protesters, a Fourth Circuit panel (in Lefemine v. Wideman) rules that the plaintiff protesters are somehow not “prevailing parties” eligible for an award of attorney’s fees.

On a petition for review, the Supreme Court will summarily reverse the Fourth Circuit panel in a unanimous per curiam opinion.


This Day in Liberal Judicial Activism—March 1


1954—The Senate, by voice vote, confirms President Eisenhower’s nomination of former California governor Earl Warren to serve as Chief Justice. Warren was already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower calls his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. (To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.)

2005—Relying on “international opinion,” the Supreme Court, by a vote of 5 to 4, overturns its own precedent and rules in Roper v. Simmons that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. Roper starkly illustrates how the same justices who bow to the views of foreigners are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country. Here’s a summary:

When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could ‘get away with it’ because they were minors. In the middle of the night, Simmons and a friend broke into a woman’s home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a state park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned an unspeakably cruel death in the waters below.

Simmons confessed to the murder. At the death-penalty phase of his trial, the judge instructed the jurors that they could consider Simmons’s age as a mitigating factor, and the defense relied heavily on that factor. The jury recommended, and the trial judge imposed, the death penalty.

In his majority opinion (joined by Justices Stevens, Souter, Ginsburg, and Breyer), Justice Kennedy aims to discern “the evolving standards of decency that mark the progress of a maturing society.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. In dissent, Scalia counters that it makes no sense to count states that have no death penalty: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”

Kennedy then finds “respected and significant confirmation” for his ruling in “the overwhelming weight of international opinion against the juvenile death penalty.” According to Kennedy, the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child—which contains an express prohibition on capital punishment for crimes committed by juveniles—supports his conclusion that the juvenile death penalty is unconstitutional. But as Justice Scalia observes in dissent, “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States,” the United States’ non-ratification of Article 37 undercuts the majority’s position. Scalia also points out that the justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion. 

One Lesson from Arizona


A lot of lessons (some sound, others not) will surely be drawn from the wild misrepresentations of Arizona’s bill that would have made minor amendments to its Religious Freedom Restoration Act and from Arizona governor Jan Brewer’s decision to veto the bill. I’d especially recommend Mollie Hemingway’s “Dumb, Uneducated, and Eager to Deceive: Media Coverage of Religious Liberty in a Nutshell.

One matter I’d like to address briefly is whether the better way to protect religious liberty is (1) by following the RFRA model of setting forth general standards for courts to apply, or (2) by spelling out, with as much precision as possible, specific conduct that is protected.

The Arizona experience confirms my sense that the second option is preferable. Let me explain why.

Under the standard RFRA model, a government cannot substantially burden a person’s exercise of religion unless it can show that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of advancing that interest. That model restores by statute the Free Exercise test that prevailed until the Supreme Court’s 1990 decision in Employment Division v. Smith.

I’m strongly supportive of state RFRAs, but enacting more of them in the current environment will be difficult. There is ample reason to believe that any RFRA would suffer from the outrageous media distortions and demagoguery that plagued the Arizona bill.

To borrow one of Hemingway’s examples, the New York Times baselessly contended that the Arizona bill would have “allowed business owner[s] to refuse to serve gay people and others if doing so ran counter to their religious beliefs.” In other words, the media can be counted on to obscure beyond comprehension the fundamental distinction between being able to assert a claim under RFRA and winning that claim.

Further, what many consider a virtue of RFRAs—that they don’t spell out which claims will win or lose but instead leave that to the courts to sort out—is politically a huge vulnerability: When opponents trot out their parade of horribles, it’s not a simple matter for supporters of RFRA to demonstrate that the parade is farfetched.

Conversely, precisely because a RFRA doesn’t guarantee any particular victory, it’s not clear whether and how it will actually enhance religious liberty.

To make my point more concretely, let’s say that the legislative goal is to protect photographers who have religious objections from being compelled to offer their services for same-sex ceremonies (whether or not those ceremonies are recognized under state law). If the legislature tries to achieve that limited goal via a RFRA, it opens itself up to objections and distortions that RFRA would go much further than that. At the same time, it’s far from clear that courts would construe a RFRA to provide that protection to photographers.

By contrast, legislation that confers only that specific protection is much less vulnerable to being construed more broadly. Further, if, as of course often happens in the drafting process, bill language is imprecise or open to a broader meaning, the simple answer is to amend it to eliminate the problem. Best of all, if the bill is enacted, the protection that it provides is clear and not subject (or at least far less subject) to being judicially interpreted into a nullity.

I’m of course not contending that it would be a simple matter to enact specific statutory protections. But how much better it would be to have the debate focus on the substantive merit of the proposed protections. Yes, media distortions would still afflict the process (as the recent Kansas experience amply shows). But, as compared with RFRAs, it ought to be far easier to get fairminded individuals—and even Republican politicians—to recognize the distortions.

North Carolina Events


Next Tuesday, March 4, I will be at Duke law school to discuss “The Next Supreme Court Confirmation Battle.” The event, jointly sponsored by the Duke Law Federalist Society and the Duke Bar Association, begins at 12:15 and includes a free lunch (barbecue, I believe). More info here.

On Wednesday, March 5, I will be at UNC law school to discuss the HHS mandate litigation. The noontime event is sponsored by the law school chapter of the Federalist Society and features free pizza.



Finally, a political cartoonist takes note of Attorney General Holder’s selective enforcement of the law:

On a different note, I wish AG Holder a speedy recovery from his hospitalization yesterday.

Thug’s Veto Prevails in Ninth Circuit


In a ruling yesterday (in Dariano v. Morgan Hill Unified School District), a Ninth Circuit panel held that high-school officials did not violate the constitutional rights of students whom they required to remove clothing bearing images of the American flag. School officials took that action because they anticipated that clothing with images of the American flag would trigger violence from “Mexican students” (the odd term that the panel embraces to refer both “to students of Mexican origin born in the United States and students born in Mexico”) in connection with a school-sponsored Cinco de Mayo celebration.

I broadly agree with what Eugene Volokh wrote about the ruling yesterday, including that it may well be a “faithful application” of the Supreme Court’s 1969 precedent in Tinker v. Des Moines Independent Community School District. Volokh soundly observes that even if the ruling is right, “[s]omething is badly wrong” when a school “feels unable to prevent [student-on-student] attacks (by punishing the threateners and the attackers)” and instead allows a “heckler’s veto”—“thug’s veto” seems more apt—to prevail. As he puts it, “When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?”

To illustrate the unfairness of the thug’s veto, consider this: The plaintiff students brought an equal-protection claim in which they alleged that they were treated differently than students wearing the colors of the Mexican flag. Their claim failed because they “offered no evidence ‘demonstrating that students wearing the colors of the Mexican flag were targeted for violence.’” In other words, if only they (or other “Caucasian students”—again, the panel’s terms) had been as thuggish, they might have prevailed on their claim. (Alternatively, perhaps under those circumstances the school would have barred students from wearing the colors of the Mexican flag on Cinco de Mayo.)

This Day in Liberal Judicial Activism—February 28


2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.” 

A Divided Court in Greenhouse-Gas Cases?


On Monday, the Supreme Court heard oral arguments (transcript here) in Chamber of Commerce v. EPA and five other consolidated cases challenging the EPA’s authority to regulate literally anything that emits carbon dioxide or other greenhouse gases. Although the argument had moments of levity, such as when Solicitor General Donald Verrilli reassured the court that the EPA would not regulate CO2 emitted by human beings, the justices appear to be divided, with no obvious majority emerging during arguments.

My colleague, Carrie Severino, discussed this case in more detail on Monday morning, so if you want an in-depth discussion, read her piece. Here’s the short version: In 2007, the Supreme Court reversed the EPA in Massachusetts v. EPA because it didn’t give a statutory reason for refusing to regulate mobile sources of greenhouse gases like carbon dioxide. After the Obama administration came to power, the EPA not only embraced regulation of mobile sources of greenhouse gases, but extended the regulation to stationary sources, thus allowing the EPA to regulate literally millions of sources not heretofore understood to be subject to regulation, and increasing the wait time for obtaining permits for such sources up to ten years. The EPA admits that its interpretation of the Clean Air Act is absurd, but instead of adopting a reasonable interpretation, it asserts the authority to rewrite specific numeric limits for air pollutants that were set by Congress in the Clean Air Act.

Although pretty much all of the interpretive problems in this case were created by the Supreme Court’s holding in Massachusetts that the Clean Air Act authorizes regulation of greenhouse gases, reversal of that decision is unlikely. The chief addressed the stare decisis issue explicitly, and Justice Kennedy was right there with him, so there would be no majority to reverse Massachusetts and let Congress address the issue through legislation.

But even starting with the premise that Massachusetts survives, there was little agreement about how to deal with the problems caused by extending it further. Chief Justice Roberts, Justice Scalia, and Justice Alito seemed to favor the petitioners’ view that the Massachusetts definition of “air pollutant” should not apply to Clean Air Act programs in which it makes no sense. (Full disclosure: We made the same point in our amicus brief.) 

Justice Breyer repeatedly argued for an inversion of that approach, insisting that the court could apply the Massachusetts definition to the other programs in the Clean Air Act but exempt carbon dioxide from the explicit statutory thresholds. This solution, however, would defy the statutory interpretation canon that the specific provision trumps the general. Justice Kagan was interested in a statutory solution, too, proposing both Chevron deference and a technical statutory construction, but none of the other justices picked up either line of questioning, suggesting that they were not widely shared.

Both Justices Sotomayor and Kagan seemed supportive of a general agency power to create non-textual exemptions if enforcement of the unambiguous Congressional directive would be impractical, even if the statute explicitly forbids such exemptions. But Justice Kagan herself pointed out the chief problem with that argument, namely, that it gives the agency “complete discretion to do whatever it wants, whenever it wants to.” Indeed.

The discretion issue received a fair bit of attention from the rest of the court, too. In a telling exchange, Chief Justice Roberts asked Verrilli to explain what intelligible principle in the Clean Air Act governed EPA’s use of its purported discretion in this case, but Verrilli’s answer was a mush of bureaucratese. Even when the liberal justices came to his rescue, Verrilli struggled to give a clear answer. The only case that Verrilli could muster as authority for his position was Morton v. Ruiz (1974), cited for the first time at oral argument. But Morton v. Ruiz dealt with executive discretion in spending Congressional appropriations, not the sort of blatant statute-rewriting that the EPA did with the thresholds for greenhouse gases in this case.

There’s no obvious majority for any of these solutions, suggesting that the result will be in the hands of Justice Kennedy. This makes the most likely outcomes either a 5-4 majority opinion for the petitioners or a limiting concurrence in a 4-1-4 split in favor of the EPA. Justice Kennedy played his cards close to the chest, but appeared ultimately unconvinced that the agency had acted lawfully. At one point, Justice Kennedy sought reassurance from Verrilli that if the government lost, the EPA would still be able to regulate greenhouse gases, later musing that he found the EPA’s position unprecedented. So even if Justice Kennedy decides to uphold the agency, it is unlikely that he will sign onto the administration’s discretion-maximalist view. I think that he will ultimately end up agreeing with the challengers, but it’s too close to call.

Watch Out Texas: Here Come the Trial Lawyers


The Wall Street Journal has an interesting article about a Republican primary in Texas. Trial lawyers are financing several candidates for Texas Supreme Court with the intention of recapturing the court and reliving their glory days from 30–40 years ago, before tort reform made the state safe for doctors and shut off the spigot of easy money for plaintiffs’ lawyers. What’s new is that they are Republicans:

That’s because after decades of Republican domination on the Supreme Court, lawyers who typically give to Democrats have realized that backing Republicans is their best shot at winning. Democratic donor and trial lawyer John Eddie Williams, for instance, hosted a fundraiser for the three challengers last week. The primary challengers have all branded themselves as “the conservative candidate,” though Mr. Perry and the states two GOP senators, John Cornyn and Ted Cruz, have all endorsed the incumbents.

Read the whole thing here.

This Day in Liberal Judicial Activism—February 27


1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman.

Supreme Court of Michigan Orders Review of State Bar Dues and Use for Ideological Activities


For more than 20 years, state bar associations have known that they must tread carefully around constitutional restrictions against using mandatory member dues as a slush fund for ideological advocacy. Thirty-one states and the District of Columbia require membership in the bar as a precondition to practicing law, and the Supreme Court has said that such compulsory dues may only be used for two purposes: (1) the regulation of the legal profession; and (2) improving the quality of legal services. After all, if a state can force people to pay for the privilege of doing business in the state, then use the dues for whatever political activities suit its fancy, the state is unconstitutionally forcing people to advocate for causes that they disagree with.

Despite these restrictions, political forces (attracted by access to member dues and the state bar’s appearance of neutrality) sometimes capture the state bar and take a flying leap into ideological activity. In Michigan, for instance, the state bar recently began to use compulsory dues to promote regulations stifling speech in judicial elections, a favorite cause of some on the left. Because many Michigan attorneys object to this sort of political activity, however, several Michigan legislators introduced a bill that would turn state bar membership into the voluntary association that exists in 19 other states. At this point, with its access to member dues under mortal threat, the state bar persuaded the Supreme Court of Michigan to create a task force to review the activities of the Michigan state bar for constitutionally impermissible activities.

The Supreme Court of Michigan should be lauded for ordering review of these activities. But the task force is stacked with current and former state bar officials, making this whole exercise a bit like asking the fox to do a security audit of the hen house. One wonders why the state bar couldn’t be trusted to simply stop the unconstitutional ideological activities by itself.

Of course, Michigan is only one of many states where lawyers engage in this sort of self-dealing. The state bars of Missouri and Oklahoma, both of which require compulsory dues, fight hard to retain their strangleholds on judicial selection. Missouri uses part of its $10 million annual budget (obtained mostly from compulsory bar dues) to promote its continued control of state judicial selection in major bar publications and on its website, and Oklahoma state bar officials have vigorously opposed reform of Oklahoma’s lawyer-controlled judicial-selection process.

In any event, Michigan’s task force will have plenty to review.  A quick search of Michigan lobbying disclosure reports indicates that over the last several years, the Michigan State Bar has spent hundreds of thousands of dollars in spending on state-level lobbying. In addition to lobbying in its own name, the $87,000 spent on lobbying in 2013 was spread out over several different “Sections” of the State Bar, such as the Negligence Law Section, Real Property Law Section, and so forth. And projects listed on the Michigan Bar’s website, like the Justice Initiatives Committee and the Diversity and Inclusion Advisory Committee, need to be thoroughly examined to ensure that they are not simply using member dues for left-wing social causes. It will be interesting to follow the task force’s work, and I hope it results in reform for the lawyers who are tired of being forced to subsidize political activity they disagree with.

Welcome Jonathan Keim to Bench Memos


Please join me in welcoming my colleague, Jonathan Keim, to Bench Memos. He recently joined the Judicial Crisis Network as Counsel. Jonathan previously served as a judicial clerk in the Eastern District of Virginia and as a cyber-crime prosecutor with the U.S. Attorney’s Office for the Eastern District of Virginia. He will be specializing in judicial nominations and constitutional litigation. 

Where Do Our Religious Freedom Principles Come From?


Everywhere we turn these days, we are confronted with issues of religious liberty.  Can employers be compelled to include contraceptives and abortifacients in their employee health plans, if their faith teaches it’s wrong?  Can a photographer be fined for refusing, because of her faith, to photograph a same-sex union ceremony?  Can a town council continue its traditional practice of having local clergy give an invocation before each council meeting?  Is it unlawful for the government to tolerate the presence of a volunteer-maintained memorial cross honoring veterans on public land?  Can the government dictate the “ministerial” hiring practices of churches and religious schools?  Can a bureaucrat at a federal veterans’ cemetery tell local volunteers not to offer to pray with the bereaved who come for their loved ones’ funerals?  Can the military, in the name of “tolerance,” muzzle its chaplains’ preaching of their faith?  Can a state legislature take steps to protect the age-old definition of marriage, or even just the freedom of its citizens to act on a religious belief in that definition, without a judge somewhere striking down the legislation for violating the “separation of church and state”?

America has perhaps the strongest legal principles in the world protecting religious freedom—which is not to say that those principles are always happily realized, nor that they sprang into being at some magical moment of perfection.  But the foundations of our religious-freedom law were put in place after years of struggle in colonial and revolutionary America over the relationship between church and state, religion and politics.  Understanding these foundations is indispensable to a full understanding of where we are today.

To that end, this summer the Witherspoon Institute, where I direct the Simon Center on Religion and the Constitution, will hold a Church and State Seminar: Religion and Liberty in the American Founding Era.  As in past years, we will bring together young scholars—untenured professors, postdoctoral scholars, and dissertation-writing doctoral students—to discuss primary sources from the founding era on the origins of the American understanding of church-state relations and religious freedom.  If you are one of these scholars, in history, political science, law, theology, or religious studies, or any related field, you can apply to attend the seminar by April 15 and we will give you a fast decision on your application.  A modest registration fee if you are accepted, and responsibility for your own travel to Princeton, will be your only significant expenses; we provide food and lodging for the week of July 27 to August 2.  The application is easy—a brief form, a cover letter, and a CV.

The seminar’s main text is the copious anthology The Sacred Rights of Conscience, published by Liberty Fund.  Other readings will be supplied electronically.  The seminar’s faculty are leading scholars of American religious freedom: Daniel Dreisbach, constitutional scholar at American University and co-editor of the main text; Thomas S. Kidd, historian of American religion at Baylor University; and Gerald R. McDermott, theologian and scholar of religious history at Roanoke College.  With discussion leaders like these, we look forward to a richly rewarding seminar.  If this is up your street, please apply!

Re: “Egregious” Distortions of Arizona Bill


In addition to the letter from religious-liberty scholars, Ilya Shapiro of Cato has weighed in to explain that “SB 1062 does nothing more than align state law with the federal Religious Freedom Restoration Act.”

Shapiro, who says he’s “for marriage equality” (so am I, by the way, but he and I evidently have very different understandings of what marriage is), acknowledges that the legislation would give wedding photographers and bakers (some) protection against being required to provide their services for same-sex ceremonies, but poses the elementary question, “Why should these people be forced to engage in activity that violates their religious beliefs?”

He continues:

For that matter, gay photographers and bakers shouldn’t be forced to work religious celebrations, Jews shouldn’t be forced to work Nazi rallies, and environmentalists shouldn’t be forced to work job fairs in logging communities. This isn’t the Jim Crow South; there are plenty of wedding photographers – over 100 in Albuquerque – and bakeries who would be willing to do business regardless of sexual orientation, and no state is enforcing segregation laws. I bet plenty of Arizona businesses would and do see more customers if they advertised that they welcomed the LGBT community.

At the end of the day, that’s what this is about: tolerance and respect for other people’s beliefs. While governments have the duty to treat everyone equally under the law, private individuals should be able to make their own decisions on whom to do business with and how – on religious or any other grounds. Those who disagree can take their custom elsewhere and encourage others to do the same. 

For what it’s worth, I think that the libertarian case for a broad scaling back of antidiscrimination laws—yes, possibly including a wholesale repeal of protections for religious persons against being discriminated against on religious grounds—is compelling.  

Religious-Liberty Scholars Counter “Egregious” Distortions of Arizona Bill


There has been a blizzard of hysterical misinformation about Arizona’s SB 1062. As anyone who takes the trouble to consult the text of the legislation will readily discover, SB 1062 does not mention, much less single out, gays or same-sex ceremonies.

As Douglas Laycock (who supports redefining marriage to include same-sex couples) and other leading religious-liberty scholars explain in a letter to Arizona governor Jan Brewer, SB 1062 “has been egregiously misrepresented by many of its critics.” What the legislation would do is amend Arizona’s Religious Freedom Restoration Act “to address two ambiguities that have been the subject of litigation under other RFRAs”:

It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger.…

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision.

Holder Encourages Dereliction of Duty by State AGs


In the last several weeks, Ed and I have noted state attorneys general who abandoned the most basic duty of an AG: to zealously defend the laws of their state. (Ed even wrote an article about it.) Worse still, these AGs decided to break their oaths of office by refusing to defend marriage-definition laws with which they disagree.

We can now add another AG to the list: Eric Holder. AG Holder may not be a state attorney general, but he definitely has opinions about how the state AGs should do their job. In an interview yesterday with the New York Times, he declared that state AGs are not obligated to defend laws that they disagree with, and indeed, are obligated to apply what the New York Times called the “highest level of scrutiny” in a decision to defend the law. And this even starting with the assumption that the law is valid.

Holder has it exactly backwards. The AG’s proper role is to defend the laws of the state because he is a lawyer representing the state. It is for courts to subject the law to scrutiny, reserving the “highest level of scrutiny” for those that implicate core constitutional rights. Only if an attorney general can find no non-frivolous legal argument in favor of the law may he decline to defend it. Apparently Holder would prefer that state AGs play philosopher-king (much as the president has done) by simply declining to enforce valid laws without ever giving a court the chance to actually decide whether it is valid.  

But we live in a nation of laws, not a nation of lawyers. In our constitutional system the laws were passed by Congress and the president has that one chance to use his veto power. States work the same way, with laws being enacted by the democratically elected legislatures or even by popular referendum. Once a law is duly enacted it cannot be unilaterally repealed by one government official, even if they have the blessing of the U.S. attorney general. 

Of course, it’s no surprise that this inducement to lawlessness comes from an administration that seems to view the Constitution and the laws merely as obstacles to their grand plan. From their perspective, refusing to uphold the law is just another day at the office.


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