Bench Memos

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Rival Certiorari Petitions on Fourth Circuit Ruling Against Virginia Marriage Laws


Last Friday, George E. Schaefer III, the Clerk of the Circuit Court of the City of Norfolk, filed an excellent certiorari petition seeking review of the divided Fourth Circuit panel ruling against Virginia’s marriage laws. Among other things, Schaefer makes a compelling case that the Court should prefer his petition to the petition filed by Virginia attorney general Mark Herring on behalf of the state registrar of vital records.

Herring has already irresponsibly abandoned his duty to defend Virginia’s marriage laws, so the Court’s interest in having the case vigorously briefed by both sides would not be served by granting his petition. Conversely, Schaefer is well represented by Kyle Duncan, a talented appellate lawyer (who, before starting his solo practice, was general counsel of the Becket Fund and, before that, solicitor general of Louisiana).

Here’s the introduction to Schaefer’s petition (reporter citations omitted):

This petition arises from a spiraling national controversy only this Court can resolve. That controversy, however, does not concern the merits of same-sex marriage. It does not even concern whether we will have same-sex marriage in the United States. We already do: a minority of States have recently adopted it through the democratic process. Rather, the controversy concerns whether the issue will be decided by state citizens or by judges.

Since this Court’s Windsor decision last year, a wave of courts has decreed that the Fourteenth Amendment compels States to recognize same-sex marriage. Yet Windsor itself taught that state citizens are free to make up their own minds about this issue by exercising their “historic and essential authority to define the marital relation.” These decisions, then, have not applied Windsor; they have subverted it. They have not enforced the Fourteenth Amendment; they have “demean[ed] … the democratic process.” Schuette v. Coalition to Defend Affirmative Action (2014) (op. of Kennedy, J.). They have not expanded freedom; they have reduced it.

Contrary to these mistaken decisions, the Fourteenth Amendment does not override “state sovereign choices” about whether to adopt same-sex marriage. This petition is the right vehicle to settle that issue. The petitioner, George Schaefer, is a circuit court clerk responsible for issuing marriage licenses and has been at the center of this controversy in Virginia from the beginning. The case has no standing defects. Nor are there any prudential standing issues with Schaefer’s petition. Unlike the Virginia Attorney General—who changed position mid-litigation and attacked Virginia’s marriage laws—Schaefer consistently defended those laws in the district court and on appeal, and would continue to do so vigorously in this Court.

The Court should grant Schaefer’s petition and rule that the decision of Virginia’s citizens to retain the traditional definition of marriage was “without doubt a proper exercise of [their] sovereign authority within our federal system, all in the way that the Framers of the Constitution intended.” Windsor.

Prosecutorial Discretion, Part One: Indisputably There, But Disputably from Where?


Prosecutorial discretion is a hot topic these days. The Obama administration couched its immigration non-enforcement policy decision in terms of prosecutorial discretion. Attorney General Holder announced a policy that henceforth, prosecutors would avoid charging crimes that carry mandatory minimum sentences. Are these proper or improper exercises of prosecutorial discretion? 

This is the first post in a three-part series giving a framework for understanding prosecutorial discretion. Part one will focus on its constitutional and statutory origins. Although everyone recognizes that prosecutorial discretion exists, there is little agreement about why it exists and where it comes from. Part two will examine its limits. Part three will note some of the policy concerns with its use (or overuse) and offer some concluding thoughts.

First, a bit of history. Prosecutorial discretion finds its historical origins in English criminal law. In colonial times, government prosecutors initiated criminal prosecutions, of course, but so could private victims. (Today, by contrast, the prosecuting attorney is invariably an agent of the government and retains all responsibility for criminal prosecutions.) In all cases, the colonial public prosecutor retained the power of nolle prosequi, that is, the right to decline a prosecution or end a pending prosecution, even if a private party had brought the prosecution in the first place. In such a decentralized system, the ability to decline to prosecute a crime was a given: The government could decline, and victims were under no obligation to bring or continue private criminal prosecutorial actions if the government declined to do so.

Although the adoption of the federal Constitution brought a different structure to national government while continuing many practices from the common law, the Constitution does not provide for a general power of prosecution or identify which branch (if any) should be responsible for prosecutions of federal crimes. In addition, the enumeration of legislative powers and the elimination of ex post facto laws put an end to the common-law criminal offenses that characterized the colonial era.

Congress therefore passed the Judiciary Act of 1789, which created a federal law enforcement structure, including district attorneys (U.S. Attorneys) charged with enforcement of federal law in every judicial district. The statute articulated these attorneys’ duty to prosecute “all delinquents” for federal crimes and offenses, even though federal prosecutors routinely exercised the power of nolle prosequi and declined to prosecute all crimes. The statute did not expressly prohibit citizens from bringing private prosecutions, but the practice of private prosecutions was never established in the federal system.

In general, an uncontroversial early federal practice is a good indicator of original meaning, whether of a statute or the Constitution. In this case, though, the Constitution and the Judiciary Act were passed close enough in time that it’s not clear whether prosecutorial discretion arises out of one or the other. And the lack of a clear textual grant of discretion in either statute or Constitution muddies the water further. If prosecutorial discretion arises out of the Constitution, then Congress and the courts are limited in their ability to cabin it. If prosecutorial discretion is statutory, by contrast, Congress’s ability to constrain discretion would be quite substantial. Let’s review some of the arguments.

Does prosecutorial discretion have a source in the Constitution? Some have suggested that it is a core component of “executive power.” In Heckler v. Chaney (1985), for instance, Justice Rehnquist described the decision not to indict as “a decision which has long been regarded as the special province of the Executive Branch, inasmuch as it is the Executive who is charged by the Constitution” under Article II, Section 3 to “take care” that the laws be faithfully executed. The Department of Justice takes a similar position, that prosecutorial discretion is constitutionally derived from the Constitution’s directive that the laws be “faithfully executed.” Or perhaps it’s necessary under the separation of powers. Justice Scalia took this view in his dissent in Morrison v. Olson (1988), writing that it was “the balancing of various legal, practical, and political considerations, none of which is absolute,” such that removing the “core prosecutorial function” from the control of the executive (in the form of an “independent counsel”) would violate the separation of powers.

Keep reading this post . . .


The Murk of Garrett Epps—Part 2


See Part 1

In his essay titled “The Twilight of Antonin Scalia,” Garrett Epps contends in particular that in his dissent from the Court’s anti-DOMA ruling in U.S. v. Windsor, Justice Scalia “made an important legal concession” that somehow “strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.” (Emphasis added.) Scalia’s dissent in Windsor, Epps argues, “may be remembered as the most influential opinion of his career.”

There are some serious problems with Epps’s contention.

First, the “important legal concession” that Epps ascribes to Scalia is a proposition that Scalia never advances. According to Epps, Scalia said that “opposition to same-sex marriage was based on a ‘bare desire to harm.’” (Emphasis added.) Not so. What Scalia says is that the “real rationale” of the Windsor majority “is that DOMA is motivated by ‘“bare desire to harm.”’” Scalia, of course, doesn’t accept this wild mischaracterization of DOMA, much less extend it to “opposition to same-sex marriage”; he in fact spends pages documenting that the charge is “quite untrue.”

Second, no “concession” that Scalia might make could in any event alter the meaning of the majority opinion “as a matter of law.” A majority opinion means what it says. When that meaning is unclear or contestable, dissents might influence how others, including lower-court judges, read the majority opinion. As Epps observes, some dissents—like the Chief Justice’s in Windsor—“seek to limit the majority opinion, suggesting ways that lower courts can work around it.” Others, like Scalia’s, emphasize how bad the majority opinion is and thus might have the effect of suggesting expansive readings of the majority opinion. But in neither case can a dissent change the meaning of the majority opinion “as a matter of law.” (My point may strike many readers as a formalist quibble, but I’m responding to what I understand to be Epps’s formalist argument (“as a matter of law”).)

Epps might instead have argued merely that Scalia’s account of the Windsor majority’s “real rationale” has influenced how lower courts have read Windsor. Such a claim might have some merit. (Who can know?) But I doubt it. For starters, so many of the lower-court judges seems to have been so hellbent on striking down state marriage laws that their invocations of Scalia’s dissent come across as oh-so-clever window-dressing. Further, contrary to what Epps conveys, Scalia expressly states that he does “not mean to suggest disagreement” with the Chief’s position that the Windsor majority “is based on federalism,” and he says that lower courts “should take the Court at its word and distinguish away” Windsor.

The Murk of Garrett Epps—Part 1


In an Atlantic essay titled “The Twilight of Antonin Scalia,” Garrett Epps displays that he has a severe case of Anti-Scalia Derangement Syndrome. Epps combines two bad arguments. His broader framing thesis is that Justice Scalia is no longer the “conservative wing’s alpha dog.” More specifically, he contends that Scalia “made an important legal concession” in his dissent in the Court’s anti-DOMA ruling in U.S. v. Windsor that, wonder of wonders, somehow “strengthened the Windsor majority opinion, not simply rhetorically but as a matter of law.”

I’ll address Epps’s framing thesis in this post and his more specific argument in the next.

There are two basic problems with Epps’s broader thesis. First, Epps obviously assumes that Scalia seeks to be the “conservative wing’s alpha dog.” I’m quite confident, by contrast, that Scalia would be delighted to have eight—or even four—originalist colleagues, irrespective whether they would overshadow him.

Second, Epps’s scanty evidence for Scalia’s supposed eclipse is that last term the “three most important conservative wins were written by Roberts and Alito” and that “Scalia’s most prominent appearance was in a bitter concurrence” (emphasis in original), in the recess-appointment case. But, given the configuration of the Court during his tenure, Scalia’s long-term influence has rarely come from majority opinions and instead has flowed most heavily from his concurrences and dissents. So there is nothing new or remarkable about the profile of Scalia’s set of opinions last term.

It’s too bad that Epps saved his (unintelligible) comparison of Scalia to Lucifer for the end, as he could have more clearly signaled the unwary reader how tendentious his piece is. I’ll limit myself in this post to two further examples:

Epps claims that when “[c]onfronted politely by a gay student,” Scalia “snapped” a response that Epps evidently mistakes to have been rude. Not so.

Epps claims that Scalia “has been unrelenting in opposing constitutional protections for gays and lesbians.” But contrary to what Epps asserts, Scalia, of course, has never taken the position that gays and lesbians don’t have the same general constitutional protections that all persons have. What has instead been at issue are questions like whether there is a fundamental constitutional right to homosexual sodomy and whether classifications based on sexual orientation are subjected to heightened scrutiny. Scalia’s originalism readily yields negative answers to those questions. To be clear: I don’t mean to slight the importance of such questions to gays and lesbians, but that’s no excuse for Epps’s sweeping overstatement.


This Day in Liberal Judicial Activism—August 26


2009—In what Fourth Amendment expert Orin Kerr describes as the “most free-wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” a limited en banc panel of the Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

One year later, in response to the Department of Justice’s petition for full en banc rehearing, the en banc panel will quietly amend its opinion to eliminate the set of new rules. 


Justice Ginsburg as Chatty Cathy—Part 4


In her recent National Law Journal interview, Justice Ginsburg somehow feels free to comment publicly on an issue that is currently before the Court (in the certiorari stage): what the Court’s anti-DOMA decision in United States v. Windsor portends for the battle against state marriage laws. Here’s the exchange:

NLJ: When the 5-4 majority in United States v. Windsor struck down the marriage definition in the Defense of Marriage Act, Justice [Anthony] Kennedy’s opinion had two major strands in it: federalism and equal protection. Both sides in the same-sex marriage debate and litigation are relying on Windsor: opponents using federalism; supporters using equal protection. Did the court send conflicting signals in that decision?

GINSBURG: In the federalism theme, marriage and family law have traditionally been the states’ domain and that goes one way. But then there is this eloquent statement about liberty and freedom to be what you are. The predecessor cases, also written by Justice Anthony Kennedy, those were not federalism cases, starting with Romer v. Colorado and then Lawrence v. Texas. I guess if you put those three together you say the main theme is the right to be treated with equal dignity

I of course believe that the state marriage laws under attack treat individuals “with equal dignity.” But it seems quite clear that Ginsburg is broadcasting a very different message. And even if one very charitably assumes that she is not opining on the bottom line, why is she speaking out on the issue at all?

To take a wild hypothetical: Imagine for a moment that the National Law Journal had posed the question to Chief Justice Roberts rather than to Justice Ginsburg and that the Chief Justice had responded that Windsor’s “main theme is federalism.” I think that it’s very safe to say that the Chief Justice would have been roundly denounced for speaking out on an issue that is already before the Court.

Let’s set aside the question whether Ginsburg’s comments ought to require her to recuse herself. After more than two decades on the Court, does Ginsburg really not know when she ought to just be quiet? 

Justice Ginsburg as Chatty Cathy—Part 3


For more of Justice Ginsburg’s candid revelations of her thoroughly politicized approach to judging, let’s look at her thoughts on the death penalty (from this interview):

[1] I’ve always made the distinction that if I were in the legislature, there’d be no death penalty. [2] If I had been on the court for Furman [ v. Georgia, 1972, invalidating the death penalty], I wouldn’t have given us the death penalty back four years later. Stevens and Powell were part of that. I think there wouldn’t have been a big fuss. There was a big fuss initially over the decision that stopped executions. If the court had stayed there, it would have been accepted. That was the golden opportunity. [3] I had to make the decision was I going to be like Brennan and Marshall who took themselves out of the loop [by dissenting in every case upholding the penalty]. There have been some good death penalty decisions. If I took myself out, I couldn’t be any kind of contributor to those. [Bracketed numbers added]

Ginsburg gets off to a promising start, as she distinguishes between the policy question, left to legislative bodies, whether there should be a death penalty and the constitutional question whether the death penalty is permissible. But although she asserts that she has “always made [this] distinction,” she can’t adhere to it for more than a sentence.

Without offering any clues on how she might think that the death penalty could possibly be categorically unconstitutional, Ginsburg tells us that she, had she been on the Court in the mid-1970s, would have overruled legislative efforts to re-enact the death penalty in compliance with Furman. Her only explanation is blatantly political: such a ruling “would have been accepted” by the public, so why waste a “golden opportunity” to entrench her preferred policy position as a constitutional holding?

According to Ginsburg, the decision she “had to make” when she came on the Court years later was not whether the death penalty is in fact categorically unconstitutional, but rather whether she would unduly reduce her influence by taking that position. Perhaps (contrary to the suggestion in her first sentence)—and contemptible as the overall approach would be—Ginsburg does believe that the death penalty is unconstitutional but, in order not to take herself “out of the loop,” she routinely joins in decisions that affirm death sentences. She’s eager to be a “contributor” to “good death penalty decisions,” but from her discussion it would appear that her measure of whether a death penalty decision is “good” is not based on any assessment whether it comports with the Constitution but simply on whether it further limits application of the death penalty. 

Justice Ginsburg as Chatty Cathy—Part 2


Among the many indiscreet passages in Justice Ginsburg’s recent interview with the National Law Journal’s Marcia Coyle, here’s one that is especially revealing of Ginsburg’s—and, by her account, Justice Sotomayor’s—crassly political approach to judging:

NLJ: As the senior justice in dissent, you assigned to Justice Sotomayor the dissent in the court’s decision upholding Michigan’s constitutional amendment prohibiting the consideration of race in higher education. You and she were the only dissenters. She had joined the 7-1 decision two terms ago in the University of Texas case where race was considered as a factor in the admissions policy. The court sent that case back to the lower court to apply a stricter type of strict scrutiny. Why did you assign the Michigan dissent to Justice Sotomayor?

GINSBURG: She cared deeply about the issue. She might have been distressed about some of the reports in the Fisher [ v. University of Texas] case where she went along with the court. So if anybody had doubts about her views on affirmative action she wanted to quell them, which she certainly did….

It’s odd enough that Ginsburg didn’t simply decline to answer the question (on the ground that it intruded into the realm of confidential Court matters) or didn’t deftly deflect it. But it’s weirder still that she gives such a damning account of her and Sotomayor’s thinking.

By Ginsburg’s account, Sotomayor “might have been distressed” by “some of the reports” about the Court’s 7-1 ruling in June 2013 in Fisher v. University of Texas. In that case, Sotomayor joined Justice Kennedy’s majority opinion, which held that the court of appeals had failed to apply a sufficiently strict standard of scrutiny to UT’s use of race in its admissions process. Ginsburg was alone in dissent. Various commentators on the Left expressed disappointment with Sotomayor over her vote. (One example: Harvard law professor, and renowned “quota queen,” Lani Guinier called it “a surprise that Justices Breyer and Sotomayor signed onto the majority opinion with Justice Kennedy, because they have been supportive of affirmative action in the past.”) By Ginsburg’s account, Sotomayor sought to write the dissent in the Michigan case—and evidently wrote it in such an aggressive (though incoherent) manner—because she “wanted to quell” the “doubts [that some people had] about her views on affirmative action.”

How strange that Sotomayor, in a betrayal of the ethic of judicial independence, should be so concerned about re-positioning herself with those who were disappointed by her Fisher vote. How telling that Ginsburg would eagerly accommodate her—and not feel any embarrassment at revealing the fact.

Relatedly: A D.C. lawyer tells me that he was jarred to hear Sotomayor, in a private conversation, refer to lefty Hispanic groups as “my [i.e., Sotomayor’s] constituents.” A more blatantly political view of the judicial role is difficult to imagine.

I’ll note further that Ginsburg, in the interview, offers a similar explanation for why she assigned the (post-Hobby Lobby) Wheaton College dissent to Sotomayor. I’ll also highlight Josh Blackman’s post from last Friday sharply criticizing Ginsburg and Sotomayor over these interview passages. 

Justice Ginsburg as Chatty Cathy—Part 1


Justice Ginsburg has become quite the Chatty Cathy. In her recent interview with the National Law Journal’s Marcia Coyle, Ginsburg somehow sees fit to offer her views on all sorts of matters.

It’s amusing to learn that Ginsburg imagines that disparate-impact theory—which invites inferences of racial discrimination to be drawn from mere statistical disparities in employment and which thus drives employers to embrace hiring quotas—would help solve our country’s racial problems. After all, in her 1993 Supreme Court confirmation hearing, it was revealed, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks. So Ginsburg perhaps ought to be less ready to impose on other employers a standard that would have branded her as racially discriminatory.

Ginsburg may well be right that our racial problems “will remain … for a long time as long as where we live remains divided.” But if she wants to walk the walk, the longtime resident of a posh Watergate apartment could shorten her commute by finding new lodging in southeast D.C. Then again, given her peculiar comment (in the context of abortion funding) about “populations that we don’t want to have too many of,” perhaps Ginsburg would be better off keeping to herself her views on racial matters.

Justice Ginsburg Reveals Inner Workings of the Supreme Court


Law professor Josh Blackman recently blogged about Justice Ginsburg’s interview with National Law Journal’s Marcia Coyle and has some harsh words:

One of the most jarring, and dare I say demeaning, lines in Justice Ginsburg’s interview with Marcia Coyle was not directed at any of the conservative Justices, but her own colleague on the left, Justice Sotomayor. Usually, the issue of opinion assignment is one best left for speculation. Maybe, we think a Justice asks for an assignment because he or she has a special interest, or expertise, or passion in a certain area. Or maybe an opinion was assigned to the swing vote to keep a majority together. These are the kinds of things I am most comfortable finding out years later when papers are released.

But Justice Ginsburg’s explanation for why Justice Sotomayor wrote the dissent in Schuette (which only RBG joined) was disquieting–Sotomayor was upset by press reports about her in Fisher, and wanted to show people what she really thought about affirmative action.

Read the whole thing here.

This Day in Liberal Judicial Activism—August 24


1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA. Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision. Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning. In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

This Day in Liberal Judicial Activism—August 23


2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case. 

This Day in Liberal Judicial Activism—August 19


2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth. 

This Day in Liberal Judicial Activism—August 17


2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”

Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” (How’s that for “careful” and “thoroughly grounded”?)

Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.” But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims. 

2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added):

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

This Day in Liberal Judicial Activism—August 16


1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.  

This Day in Liberal Judicial Activism—August 15


1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.” 

Arizona AG Tom Horne Hit With Two New Ads


The State Conservative Reform Action PAC (SCRAP) — a new super PAC dedicated to electing principled conservatives to key state offices — has launched an advertising campaign in Arizona in support of Mark Brnovich, a Republican candidate for attorney general. Mark is challenging incumbent attorney general Tom Horne, also a Republican. SCRAP’s ad features Representative Matt Salmon, who’s from Arizona’s fifth district, and highlights Governor Jan Brewer’s endorsement of Brnovich. 

Meanwhile, the Arizona Public Integrity Alliance, another conservative organization that had previously called on Horne to resign, has released a new ad highlighting the controversies surrounding Horne.

Many of our readers are familiar with Mark and his background, but I encourage those who aren’t to learn more about him, his opponent, and this very important race.

Brazen Fourth Circuit Denies Motion to Stay Ruling Against Virginia’s Marriage Laws


Without bothering to provide a sentence of explanation, the divided Fourth Circuit panel that recently ruled against Virginia’s marriage laws today denied (by the same 2-1 vote) a motion to stay its mandate. (The mandate is currently set to issue on August 20 21.)

Never mind that the Supreme Court in January issued an order staying a federal district court’s ruling against Utah’s marriage laws. Never mind that more sober appellate judges of various ideological dispositions (as Josh Blackman discusses here) have sensibly understood the Court’s order as “virtually instruct[ing] courts of appeals to grant stays in similar circumstances.” The Fourth Circuit does not even mention the Court’s January order.

As Blackman (who favors redefining marriage) discusses, procedural shenanigans like that engaged in by the Fourth Circuit are an assault on the rule of law.

I expect that the Supreme Court will restore procedural regularity before the mandate issues.

European High Court Ruling on Marriage


Last month, in Hämäläinen v. Finland [link fixed], the Grand Chamber of the European Court of Human Rights issued a ruling that reiterated that European countries are not required to grant same-sex couples access to marriage. As my testimony before the House Judiciary Committee makes clear, I don’t believe that contemporary foreign laws or legal decisions ought to have any bearing on how our Constitution is interpreted. But for those—including five Supreme Court justices—who think otherwise, it may be useful to highlight the Grand Chamber ruling.

The particular legal issue in Hämäläinen was whether Finnish law on recognition of a person’s newly asserted gender violates the European Convention for the Protection of Human Rights and Fundamental Freedoms. The petitioner (or “applicant”) Hämäläinen was born male, married a woman in 1996, and fathered a child with her. In 2006, he was diagnosed as a transsexual, started living as a woman, adopted female first and middle names, and remained married. Hämäläinen’s national identity number still indicates that Hämäläinen is male. (Odd numbers, I gather, identify males.) When Hämäläinen sought to have his identity number changed to a female (even) number, the Finnish courts, applying Finnish law, ruled that no such change could be made while he remained married to his wife.

By a vote of 14 to 3, the Grand Chamber ruled that Finnish law did not violate the Convention. I’m not going to summarize the majority’s reasoning here (see ¶ 87 for a succinct account), but will instead highlight those portions bearing on the permissible definition of marriage.

Noting that Finnish law does not recognize a right of same-sex couples to marry, the Grand Chamber observes that Hämäläinen’s “claim, if accepted, would in practice lead to a situation in which two persons of the same sex could be married to each other.” (¶ 70.) The Grand Chamber “reiterates its case-law according to which Article 8 of the Convention”—which sets forth a “right to respect” for a person’s “private and family life”—“cannot be interpreted as imposing an obligation on Contracting States to grant same-sex couples access to marriage.” (¶ 71.) Surveying the current situation in Europe, it concludes that “it cannot be said that there exists any European consensus on allowing same-sex marriages.” (¶ 74.)

The Grand Chamber also addresses Article 12 of the Convention, which provides:

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

The Grand Chamber understands this “right to marry” as “enshrin[ing] the traditional concept of marriage as being between a man and a woman,” and it says that Article 12 “cannot be construed as imposing an obligation on the Contracting States to grant access to marriage to same-sex couples.” (¶ 96.)

For what it’s worth, the three dissenting judges—dissenting, that is, on whether Finland must allow Hämäläinen to obtain a female identity number—likewise recite that the Grand Chamber “has accepted that States have a legitimate interest in protecting marriage in the traditional sense by legally reserving marriage to heterosexual [read opposite-sex] partners.” (Dissent, ¶ 9.) 

The ECHR Sexual Orientation blog, which is very critical of the Hämäläinen ruling, offers this bottom line:

Overall, what all same-sex couples (LGB and T) can take from the Grand Chamber judgment in Hämäläinen v Finland is that the European Court of Human Rights has no intention of recognising a right to marriage under the Convention in the near future. 

Let’s see if those justices who so often look to Europe for guidance will follow the Grand Chamber’s lead.

Yes, Chris Christie Did Appoint Liberals to the New Jersey Supreme Court


While Governor Christie is quick to defend his judicial picks with conclusory assertions that his judges are conservative, we at the Judicial Crisis Network are not the only ones who think he’s all bluster.  Liberal New Jersey columnist George Amick thinks it’s a good thing that Christie’s nominees aren’t any more conservative than their predecessors:

The governor doth protest, but the sponsors of the ad had a point.

Despite his vow to change the direction of the Supreme Court, there’s no evidence that he’s really done so. Moreover, there’s little likelihood that he’ll have an opportunity to put even one more justice on the bench before he leaves office.

He details how Christie’s judges in several cases have more liberal backgrounds and voting records than those they replaced. Read it all here.


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