Bench Memos

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Halbig & King -- Pure IRS Overreach


Given the recent oral arguments in Halbig v. Sebelius in the U.S. Court of Appeals for the D.C. Circuit and King v. Sebelius in the U.S. Court of Appeals for the Fourth Circuit, Michael Cannon and I have continued our debate with W&L law professor Tim Jost on the legality of the IRS tax credit rule at issue.  I detailed the errors of the district court’s ruling in this VC post.  For a complete compilation of relevant documents about the rule, our research, and the cases, see this resource page. You can also see attorney Michael Carvin debate the issue with Robert Weiner in the second half of this panel at the recent Federailst Society Executive Branch Review conference, or listen to me debate Michigan’s Nicholas Bagley here.

On OLC Memos: Barron v. Bybee


When Office of Legal Counsel memos on torture signed by Judge Jay Bybee were disclosed, Senate Democrats were furious.  They claimed that they should have known about the memos before Bybee was confirmed.  Senator Patrick Leahy told the Washington Post that had these memos been disclosed earlier, Bybee would not be sitting on the U.S. Court of Appeals for the Ninth Circuit. Others openly considered the possibility of impeachment.  

Fast forward a few years and another former OLC head, Harvard’s David Barron, has been nominated to a federal appellate court, the U.S. Court of Appeals for the First Circuit.  Like Bybee, Barron signed memoranda relating to the war on terror.  According to various reports, Barron signed off on six memos concerning the use of drones to target alleged terrorists, including American citizens. These memos and their conclusions are quite controversial. Yet Senator Leahy and his fellow Democrats seem wholly uninterested in the content of these memos and are poised to confirm Barron without knowing the extent to which he authorized extrajudicial killings of American citizens.  Thus far, only one of the six will be released, and that’s due to a court order. 

Senate Democrats’ lack of interest in disclosure is even more conspicuous given how insistently these same Senators demanded to see privileged memoranda from the Solicitor General’s office written by Miguel Estrada when he was nominated to the D.C. Circuit.  It seems they only demand disclosure when they seek to target Republican nominees.


This Day in Liberal Judicial Activism—May 22


1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

The Oxymoronic, Constitutionally Illiterate Udall Amendment


Senate majority leader Harry Reid has lately been yammering on about the self-evident, world-threatening evil of the Koch brothers, and as others have observed, Reid has now wheeled out his biggest gun.  He proposes to amend the Constitution to keep the Kochs, and everyone else who would like to put his money where his mouth will be louder, from having any further influence on our political life.  Reid has taken to the Senate floor to speak in favor of an amendment introduced by Sen. Tom Udall (D-NM) last June, Senate Joint Resolution 19.  Both S.J. Res 19, and the similar H.J.Res. 20, introduced in the House by Rep. Jim McGovern (D-MA), can be seen here.

Kevin Williamson, in his recent NR cover story on Reid, writes that the Udall amendment “would put not only nonprofit activist groups under the federal thumb but also, potentially, news organizations as well.”  And so it seems, from the amendment’s text, which gives Congress and the states complete power not only over contributions to candidates’ campaigns, but also over “funds that may be spent by, in support of, or in opposition to such candidates”—in other words, the whole universe of independent expenditures on political communication that concerns elections.  On its face, the language of the amendment would undo all existing First Amendment protections, including those enjoyed by “news organizations.”  After all, one of the signature activities of journalism is the endorsement of some candidates and the opposing of others, and it takes the expenditure of some “​funds”​ to do that.

But there’s a funny thing I have yet to see anyone else notice.  The Udall amendment contains the following language as its Section 3: “Nothing in this article shall be construed to grant Congress the power to abridge the freedom of the press.”

I don’t think I have ever before seen a proposed constitutional amendment that directly contradicts itself.  On the one hand, Congress and the states are given untrammeled power over all spending on the expression of opinions about candidates running for federal or state office.  On the other hand, the amendment is not to be “construed” as giving Congress any power over the freedom of the press.  But what is the former but a power over the publishing of opinions on candidates?  And what is the publishing of an opinion on a candidate, if it is not an exercise of the freedom of the press?

Do Sen. Udall and his co-sponsors imagine there is some legally identifiable entity known as “the press,” which enjoys the First Amendment “freedom of the press,” whereas other (presumably non-journalistic) Americans only have, perhaps, the “freedom of speech”?  This is ridiculous on its face.  Yes, I understand that even the sensible Kevin Williamson slipped into the journalist’s habit of referring to “news organizations” as though they are the special objects of First Amendment solicitude where the “freedom of the press” is concerned.  But this really makes no sense.  The amendment protects two kinds of communication, the spoken and the written—or, if it helps to consider the receiving end of communication, utterances to the ear and to the eye.  My freedom of speech is trammeled if I am told to shut my mouth so people will not hear my opinions.  My freedom of the press is trammeled if I am told to stop writing and publishing written statements so people will not read them.

Anyone who manages to disseminate his views by means of the written word or visual image is exercising the First Amendment freedom of the press.  And today that’s any blogger, any denizen of the Twitterverse, any Facebook fanatic, or—and here’s where the Udall amendment explodes itself to smithereens—any political animal who spends money on communicating opinions positive or negative about candidates for public office.

I should like to hear Sen. Udall or Sen. Reid explain how they think this amendment, if it is ratified, would be interpreted and applied by judges.  There is no precedent for identifying “news organizations” as the sole proprietors of the freedom of the press, and if there were, or if such a line of reasoning were developed as a result of this amendment, there would be no end of trouble as judges attempted to find a bright line on one side of which is “the press” (protected from the reach of this new legislative power) and on the other side of which is everyone else (unprotected from it).  The most sensible thing for any judge to do with the Udall amendment would be to consider it an absurd nullity and thus of no effect at all.

As a side note, observe that the Udall amendment only protects the “freedom of the press” from the new power it gives to Congress, but says nothing similar about protection from the states, which are also newly empowered to mess with speech and press.  Was this deliberate, or simply idiotic?  Given the overall idiocy on display here, the latter seems more likely.  But the difference it makes to mention Congress and not the states would be the source of more mischief.

H.J. Res. 20, the McGovern Amendment in the House, contains no such language as the Senate’s Udall amendment does, protecting “freedom of the press.”  At least the House Democrats have the modicum of sense it takes to be plain villains, and not jackasses as well.

Vote on Barron Nomination


The Senate vote on cloture on the controversial nomination of Harvard law professor David Barron to the First Circuit (a nomination Carrie Severino has written extensively about) passed today by a narrow 52-43 vote. (Under the old cloture rules, cloture would have failed.)

I’m reliably informed that Senator Manchin (West Virginia) and Senator Landrieu (running for her political life in Louisiana) voted against cloture. Senators not voting were four conservative Republicans and one Democrat, so four additional Democrats would need to vote against confirmation to defeat the nomination.)

The vote on confirmation is scheduled for tomorrow. I’m told that, if Barron’s nomination is to be defeated, these Senate Democrats are the most promising candidates to provide the critical votes against him: Begich (Alaska), Walsh (Montana), Pryor (Arkansas), Hagan (North Carolina) Udall (Colorado), McKaskill (Missouri), and Heitkamp (North Dakota). So now is the time to weigh in with them. 


Nevada Law Profs (and Others) vs. Rule of Law—Part 3


The LGBT Section of the Nevada bar professes itself “outraged” by state bar president Alan J. Lefebvre’s column that rightly criticizes the state attorney general for failing to defend Nevada’s marriage laws. Let’s examine the supposed causes of the purported outrage:

1. The LBGT Section letter asserts that Lefebvre’s “opinions heavily rest on religious and conservative ideological grounds, a direct violation of [state bar] bylaws and an abuse of the office of Bar President.”

The factual predicate of this complaint is unsound. As I pointed out in point 1 of my Part 1 post, there is nothing in Lefebvre’s column that invokes religion. As for “conservative ideological grounds”: Is it conceivably the case that the principle that a lawyer is ethically obligated to represent his client’s legal position zealously in court and the corollary principle that a state attorney general must vigorously defend state laws against challenge under federal law so long as there are nonfrivolous grounds for doing so are now “conservative ideological” principles? If so, then belief in the rule of law suffers from the same frailty. (I’ll note that liberal law professor, and legal ethics expert, Stephen Gillers has stated his general agreement with these principles.)

2. The LGBT Section letter asserts that Lefebvre has violated state bar rules by “making statements concerning [his] personal opinions.” Again, what Lefebvre has done is what bar officials throughout the country ought to be doing: defending the basic understanding of the duty of a state attorney general.

3. The LGBT Section letter contends that because the state attorney general takes an oath to the federal Constitution, her “first duty of loyalty is to the United States government and the United States Constitution.” Well, all or nearly all lawyers practicing in this country take an oath to the federal Constitution. No one has ever understood the taking of that oath as license for a lawyer to sacrifice his client’s interest to his own personal reading of the Constitution or to his own predictive reading of how the Supreme Court will rule on an unresolved issue.

In sum, Lefebvre deserves hearty acclaim from the state bar and from anyone who cares about the rule of law.

Nevada Law Profs (and Others) vs. Rule of Law—Part 2


Now let’s look at UNLV law school dean Daniel W. Hamilton’s letter objecting to Nevada state bar president Alan J. Lefebvre’s column:

1. Hamilton states that Lefebvre’s column “was at odds with the best traditions of tolerance and respect for dissenting views that characterize the legal profession and the Nevada bar.” Hamilton says that he is “certain [Lefebvre] did not intentionally denigrate anyone, but the words of the column speak for themselves and require a response.” (Emphasis added.)

The only sense that I can make of Hamilton’s letter is that he thinks that Lefebvre’s criticism of the state attorney general’s failure to defend state marriage laws somehow amounts to intolerant denigration of gays and lesbians. That is an extraordinary charge. Even though Hamilton himself refers only to the “likelihood” that state marriage laws are unenforceable, he evidently thinks that it’s rude for anyone to argue that it’s the duty of state attorneys general to defend such laws.

Hamilton likewise evidently thinks it’s “denigrat[ing]” for anyone not to support the radical redefinition of marriage.

So much for his own “tolerance and respect for dissenting views.”

2. Hamilton nakedly (and wrongly) asserts that the state attorney general’s decision not to defend Nevada’s laws was “well-reasoned.” But he doesn’t bother to confront Lefebvre’s arguments.

3. Hamilton thinks it significant that the Supreme Court, in the Prop 8 case, didn’t “question the prerogative of state officials to exercise [the] discretion” not to defend state laws. But the case didn’t present that question. The Supreme Court doesn’t have general supervisory authority over state attorneys general, so there was no reason for the Court to address the matter.

This fellow is the dean of a law school (even a fourth-tier one)?!?

Nevada Law Profs (and Others) vs. Rule of Law—Part 1


“There are lots of powerful, vengeful people among the elite. The progressives’ pieties are to be followed without deviation or the heresy axe will fall.”

So wrote Nevada state bar president Alan J. Lefebvre near the end of his recent Nevada Lawyer column criticizing the state attorney general for her remarkable decision to fail to defend Nevada’s marriage laws (a decision all the more extraordinary as the state had prevailed in the district court). Proving his point, some fifty members of the faculty of UNLV’s law school have signed an insipid letter objecting to his column, the law school’s dean has similarly weighed in, and the LGBT Section of the Nevada bar has called for the state bar to remedy his supposed abuse of office.

(I explain in this Weekly Standard essay why state attorneys general have an ethical duty to defend state marriage laws.)

I’ll parse the faculty letter in this post, the dean’s letter in the next post, and the LGBT Section’s letter in a third.

The UNLV faculty letter asserts that the “tone” of Lefebvre’s column is “undignified” and that the column “consists largely of insults, ad hominem attacks, sarcasm and sectarian references.” It claims that Lefebvre’s “ostensible subject was Nevada’s prohibition on same-sex marriage,” and it complains that he “disparaged” the attorney general’s decision not to defend state marriage laws. It contends that Lefebvre’s column “was lacking in the civility that should guide the behavior of every Nevada attorney.”

Who knew that, in the desert of Nevada, UNLV law school professors were such delicate flowers that could be withered by comments as mild as Lefebvre’s? Some observations:

1. I don’t know which passages of Lefebvre’s column the faculty signatories particularly object to, but their assertion that the column “consists largely of insults, ad hominem attacks, sarcasm and sectarian references” is patently false, as any reader of the column will quickly discover.

Lefebvre presents an extended argument that the state attorney general was wrong to fail to defend her client and to abandon the victory that the state had won in the district court. Yes, he enlivens that argument with some colloquial passages—e.g., the duty to defend the state constitution “applies when it is more than 110 degrees and on overcast days alike,” “Wow! The Attorney General tapped out, on that basis!”—but I don’t see how such informalities are an offense to civility.

What “insults” does Lefebvre commit? The letter doesn’t specify any, and I don’t see any. Yes, Lefebvre, after demonstrating that the attorney general’s decision was ill-founded, speculates that she “likely feared the consequences if she didn’t yank … the defense of the appeal.” That is surely reasonable speculation, and questioning the motives of a public official isn’t tantamount to an insult. (Imagine: political considerations affecting a politician’s decision!)

The claim that the letter contains “ad hominem attacks” demonstrates only that fifty law professors don’t know what an ad hominem attack is. In fact, Lefebvre so avoids personalizing his criticism that he doesn’t even name the attorney general.

One person’s “sarcasm” is, I suppose, another person’s gentle humor. Again, I see nothing in the column that fairly invites criticism on that score.  

I confess that I have no idea what the complaint about “sectarian references” means. Perhaps it’s an effort to stigmatize support for marriage as inherently “sectarian.” The only passage in the column that remotely involves religion is Lefebvre’s closing observation that “when this is all over, somebody in the federal government owes an apology to the State of Deseret” (for the federal government’s outlawing of polygamy in the 19th century). There is nothing “sectarian” about Lefebvre’s observation (I’ve heard folks on both sides of the marriage debate make much the same point), and insofar as the letter’s charge is coded anti-Mormonism, Lefebvre’s bio suggests that he’s Catholic, not Mormon.

2. The letter wrongly asserts that Lefebvre’s “ostensible subject was Nevada’s prohibition on same-sex marriage.” No, his actual (and ostensible) subject was the state attorney general’s failure to defend state laws on marriage. Beyond making the elementary argument that the state attorney general violated her duty (an argument that the faculty letter doesn’t confront), his column doesn’t set forth his own personal or legal views on marriage.

3. For some broader perspective on the faculty letter’s invocation of “civility,” here’s a story from December 2001, less than three months after the 9/11 attacks:

U.S. Marine recruiters visiting the University of Nevada at Las Vegas were met with hooting, catcalls and other disruptive tactics by members of the law school’s faculty and staff, reports columnist Ken Ward of the Las Vegas Review-Journal.

A student who witnessed the scene reported that Marine lawyers speaking at the UNLV Boyd Law School had their words drowned out by faculty who cranked up the volume on nearby televisions and talked and laughed among each other loudly. The student described the professors’ actions as “not only disrespectful but immature.”

The faculty is upset about the military’s “don’t ask, don’t tell” policy toward homosexuals.

Yes, that was more than 12 years ago, but it’s a safe bet that some of the law professors then directing “hooting, catcalls and other disruptive tactics” at Marine recruiters are among those now complaining of Lefebvre’s supposed lack of civility. As to the current situation, one well-informed source tells me: “Even by the standards of the modern American law school, UNLV’s faculty is remarkably intolerant of dissent. Opponents to the Orthodoxy are either evil or ignorant, take your pick.”

In sum, it’s evident that the faculty letter’s real objection is to the fact that Lefebvre is criticizing the state attorney general’s violation of her duty—just as bar officials around the country ought to be doing with respect to similar derelictions—and that it is hiding that objection behind the camouflage of baseless complaints about incivility.

Missing the Point on Democratic Accountability for State Judges


In Sunday’s Washington Post, two distinguished board members of Soros-funded advocacy organization Justice at Stake wrote an op-ed arguing that nefarious political forces are somehow trying to “intimidate” judges. Let’s take a look at the facts.

The primary example of “intimidation” listed in the op-ed is the recent kerfuffle surrounding the execution of convicted murderer Clayton Lockett, but the op-ed is more interesting for what it doesn’t say than what it does. For those who haven’t been following the case closely, here’s a quick summary: Shortly before their scheduled execution dates, and after exhausting all of their avenues of criminal appeal, Lockett and one other death-row inmate filed a long-shot civil lawsuit challenging a state law confidentiality provision that protects the identity of the provider of the lethal-injection chemicals. The Oklahoma court of criminal appeals repeatedly refused to stay the executions while the civil lawsuit ran through the system. The Oklahoma supreme court, however, was not so particular: The prisoners convinced the supreme court to stay the executions, purportedly as part of the civil suit. In light of the supreme court’s lack of jurisdiction to order the stay, the governor ordered the executions to proceed anyway after a brief delay. During the delay, the Oklahoma supreme court reversed its earlier decision. In addition, one member of the legislature introduced articles of impeachment against the supreme-court justices who had voted for the stay. (The execution ultimately went very poorly, although there’s no reason to think that it had anything to do with the legal wrangling.)

But what the op-ed doesn’t tell you is that the Oklahoma supreme court was completely, totally, and outrageously wrong. It was the Oklahoma supreme court’s decision that triggered the constitutional crisis, not the governor’s refusal or the articles of impeachment. The plain text of the Oklahoma constitution forbids the supreme court from exercising jurisdiction over criminal cases, allowing it to rule only on whether a case is criminal or civil. By framing the issue as “intimidation,” though, the op-ed sidesteps the legal merits entirely and goes straight for the emotional jugular. After all, who is in favor of “intimidation” when a death-row inmate is looking for his day in court? The legal merits of the case are far less flattering to the supposed targets of intimidation, something you’d never figure out without digging deeper.

The same sort of emotional appeal underlies the authors’ objections to other court-related legislation and democratic participation in accountability. Brandishing various unconnected incidents, some from nearly ten years ago, the authors string together an “atmosphere of bullying” that, they say, puts courts under “pressure.” This is not exactly rigorous argument.

Although the op-ed also claims that elections “turn judges into politicians in black robes,” its authors entirely fail to see that in many cases, such as the Lockett case, the judges have turned themselves into politicians. That’s why retention elections exist in the first place: to ensure that misbehaving judges can be removed. Whether it’s the Oklahoma supreme court clearly overstepping its authority in the Lockett case or the New Jersey supreme court micromanaging every aspect of state government based on no more authority than its passing whim, accountability ensures that judicial decisions comport with the laws actually enacted by the people through their representatives. Judges certainly have a crucial part to play, but the rule of law is not the same thing as rule by judges.

This raises a larger point about the debate over the Missouri Plan, which gives the lawyer-industrial complex nearly total control over judicial selection. Missouri Plan advocates frequently reassure citizens that retention elections provide accountability for removal of misbehaving judges. But when democratic accountability through the prescribed mechanism finally becomes likely, somehow “accountability” becomes “intimidation” and “bullying.” That’s a bait-and-switch, and it’s disappointing to see such distinguished former jurists selling the bait.

Dumping Marriage into the “Ash Heap of History”


I’ve barely skimmed today’s ruling by federal district judge John E. Jones III (a Bush 43 appointee) striking down Pennsylvania’s marriage laws, but I’ll offer two quick comments:

1. Jones’s closing exhortation that “it is time to discard [Pennsylvania’s marriage laws] into the ash heap of history” displays a frighteningly Jacobin temperament. What incredible hubris.

2. Jones broadly concludes that “all couples deserve equal dignity in the realm of civil marriage all Pennsylvanians have the right to marry the person of their choice.”* If he somewhere distinguishes away laws against incestuous marriages, my quick skim (supplemented by a word search) missed it. If he somewhere explains why his principle should be limited to couples, I also missed it. (Update: To be clear, I am of course not contending that Jones has held that state laws banning incestuous marriages or polygamy are invalid; I am merely observing that his reasoning doesn’​t provide grounds for avoiding those conclusions.)

* On my initial quick skim, I mistakenly quoted a passage in which Jones is summarizing what plaintiffs are asking him to declare. Although I think it is clear that he understands himself to be giving them exactly what they ask for, I shouldn’​t have put those precise words in his mouth. (His reference to “​couples” is of course substantively equivalent to the ​“​marry the person” language that I quoted.) ​

Arizona Attorney General Tom Horne Should Resign


Arizona Attorney General Tom Horne is having a very bad month. Early last week, a former employee resigned from his office and complained that Horne and his senior staff were using staff and state resources to promote his reelection. The story gained some traction amid reports that one of Horne’s top advisers would resign, and that “Some staffers are seeking or plan to seek advice from private attorneys in the wake of [the] allegations.”

Then, just as that news was capturing headlines, Yavapai County Attorney Sheila Polk announced that she will move forward with a case concerning potential violations of campaign-finance law during Horne’s 2010 campaign.  To hammer the theme home, the Arizona Public Integrity Alliance, a conservative group, is now running a TV ad (below) calling on Horne to resign, focusing on what a columnist for the Arizona Republic described as “Horne’s hit-and-run fender bender in 2012, while on a not-so-secret lunchtime rendezvous with the suspected girlfriend whom he hired to a six-figure state salary.”  As the same columnist put it:  ”On of a scale of one being a disaster and ten being a flat-out catastrophe, last week had to weigh in at about an eleven for Attorney General Tom Horne.”

I don’t know whether these allegations are true. Horne needs to come clean as soon as possible. But the old phrase “where there is smoke, there is fire” seems inadequate to the moment, since right now Horne looks like he is the only person willing to stay in the building while it burns down.  As my colleagues and I have explained before, no set of public officials have demonstrated more willingness and capacity to challenge the Obama administration’s overreach than the states’ attorneys general.  Tom Horne may sympathize with that mission, but his problems are escalating at an alarming pace, compromising his ability to meaningfully engage in the fight for limited constitutional government.  He should resign.

This Day in Liberal Judicial Activism—May 20


1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer

Re: Marriage Lawlessness in Oregon


It’s no surprise that poor writing often accompanies poor thinking, but this closing passage (emphasis added) of Judge McShane’s opinion stands out, all the more so as McShane evidently is trying to be eloquent:

Where will this all lead? I know that many suggest we are going down a slippery slope that will have no moral boundaries. To those who truly harbor such fears, I can only say this: Let us look less to the sky to see what might fall; rather, let us look to each other … and rise.

If you’re “going down a slippery slope,” you’re not likely to be looking “to the sky to see what might fall.” I’m not quite sure what it means for a slope to have “boundaries,” but your fear would be that the bottom is a long way down or that you’ll be badly injured during the slide. 

Marriage Lawlessness in Oregon


In an opinion today, federal district judge Michael J. McShane ruled that Oregon’s marriage laws flunk rational-basis review, and he ordered that Oregon officials immediately stop enforcing those laws “to the extent that they would prohibit a person from marrying another person of the same gender.”

A few quick observations:

1. Oregon officials failed to defend their own marriage laws. Judge McShane said that the case therefore “presents itself to this court as something akin to a friendly tennis match rather than a contested and robust proceeding between adversaries.” But even his comparison is inapt, as no one expects one side in a “friendly tennis match” to try to lose.

2. Oregon’s attorney general acted unethically in failing to do her legal duty (as I explain more fully in this essay).

3. The greatest extent of any relief in this case, as law professor Vik Amar (a former Blackmun clerk) has argued, should have been a default judgment in favor of the named plaintiffs, not an order enjoining state officials from enforcing the state marriage laws against anyone.

4. For reasons I’ve spelled out elsewhere (e.g., point 1 here), any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard.

5. It seems probable, given the Supreme Court’s decision on lack of standing on appeal in the Prop 8 case, that no one who is willing to defend Oregon’s laws has standing to defend them or even to seek a stay of McShane’s order.

6. For what it’s worth (and, given how other judges have recently ruled in similar cases, I readily concede that it may not be worth much), McShane has the distinction of being the first openly gay federal judge in Oregon.

Cantor and McCarthy Join Judicial Education Project Amicus Brief in Origination Clause Case


The Judicial Education Project filed a brief last Thursday in Hotze v. Sebelius, a lawsuit challenging the Affordable Care Act under the Constitution’s Origination Clause. The Origination Clause requires that “all bills for raising revenue shall originate in the House of Representatives.”

The brief is well worth reading in its own right, both because it is a masterpiece and because it was joined by House majority leader Eric Cantor and House majority whip Kevin McCarthy. Some highlights (citations and footnotes omitted):

The Senate, recognizing that it is constitutionally forbidden from originating tax increases, did so by seizing upon a six-page House Bill (H.R. 3590) that provided tax credits for soldiers. The Senate took that bill, deleted every letter after the enacting clause, and replaced it with 2000 pages of unrelated tax increases, fundamental transformations of healthcare and health insurance, and various other legislative knick-knacks. But rather than simply call this new piece of legislation what it was—a Senate bill—the Senate claimed to have made only some “Amendments” to the House bill. If the Senate’s wholesale replacement of a short tax-credit-bill with massive, unrelated tax-increases does not violate the Origination Clause, then nothing does. This is not a slippery slope; it is the bottom of the puddle at the bottom of the hill.


The Origination Clause requires that bills for raising revenue “shall originate in the House,” but also states that “the Senate may propose or concur with Amendments as on other Bills.” The Clause makes sense—and has substantive bite—only if the amendment exception does not devour the origination rule. James Madison had it right when he told George Washington that those protesting the Senate’s power to amend “bills for raising revenue” were exaggerating its importance, because that power was limited to “the paltry right of the Senate to propose alterations in money bills.” The power to “amend” legislation does not include the power to replace tax-cut legislation with completely unrelated tax-increasing legislation. This is clear from the text and history of the Clause, as well as from judicial decisions.

Read the whole thing here.

Justice Scalia on Reforming Law Schools


In his recent commencement address at William & Mary law school, Justice Scalia “vigorously dissent[s]” from proposals to reduce law school to two years:

It seems to me that the law-school-in-two-years proposal rests on the premise that law school is—or ought to be—a trade school. It is not that. It is a school preparing men and women not for a trade but for a profession—the profession of law.

When Scalia says that law school “is a school preparing men and women … for a profession,” it’s clear, in the fuller context of his speech, that he is really setting forth his view of what law school ought to be. In other words, he’s discussing his ideal—the traditional ideal—of law school.

In Scalia’s view, a law-school degree ought to mean that the recipient is “learned in the law.” By contrast, modern law schools, with their “elimination of a core curriculum, and the accompanying proliferation of narrow (not to say silly) elective courses,” “increasingly abstain from saying there is anything you really need to know.” (Emphasis in original.) They thus “have only themselves to blame” for proposals to shorten law school to two years.

To put the point somewhat differently, modern law schools seem to have lost any sense of what their mission is. Amidst that confusion (and, of course, the troubling job environment for lawyers), the notion of law school as a trade school can seem attractive and sensible. Indeed, as someone who is skeptical that modern law schools are capable of returning to the traditional ideal, I’m somewhat inclined to see the trade-school model as preferable to the current reality.

Commencement Sense


It’s rare that I have cause to praise anything written by a Yale law professor, so let me seize the occasion to highlight Stephen L. Carter’s excellent “Dear Class of 2014: Thanks for Not Disinviting Me.” Some excerpts:

In my day, the college campus was a place that celebrated the diversity of ideas. Pure argument was our guide. Staking out an unpopular position was admired — and the admiration, in turn, provided excellent training in the virtues of tolerance on the one hand and, on the other, integrity.

Your generation, I am pleased to say, seems to be doing away with all that. There’s no need for the ritual give and take of serious argument when, in your early 20s, you already know the answers to all questions. How marvelous it must be to realize at so tender an age that you will never, ever change your mind, because you will never, ever encounter disagreement! How I wish I’d had your confidence and fortitude. I could have spared myself many hours of patient reflection and intellectual struggle over the great issues of the day….

Once you depart the campus, the world will make unjust demands on you. You will have to work for a living. You will have to put up with people whose views you despise. Fortunately, as long as you don’t waste precious time reflecting in a serious way on the issues of the day — or, worse, contemplating the possibility that you might be mistaken on a question or two — you should have plenty of hours for Twitter and Google Hangout and the nonstop party that every truly just society was meant to be….

Now, before I close, I would like to address those members of the Class of 2014 who might think that it’s wrong to ban speakers whose views you reject. Your reactionary belief in tolerance and open-mindedness is truly distressing. I beg you to remember that every controversial question has only one answer. You have absolutely nothing to learn from people whose opinions you dislike.

And now, graduates, before things go too far — before you run the risk of being thought to be on the road to becoming responsible adults — please, rise to your feet, and, speaking with one voice, shout me down!

(I don’t know that Carter’s jibe about the graduates’ “involvement in the excellent work of bringing back the Middle Ages” is fair … to the Middle Ages—the period is arguably a victim of caricature—but I’ll leave that dispute to others.) 

This Day in Liberal Judicial Activism—May 18


1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.

This Day in Liberal Judicial Activism—May 17


1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:

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

Judges (and Others) Behaving Badly


The National Law Journal has an article about efforts being made to increase the number of minority law clerks for judges. It’s clear enough that these efforts are not limited to preventing discrimination, of course; rather, race is to be weighed.

I won’t belabor the moral problems raised by hiring with an eye on skin color, but I think it is worth mentioning that this is illegal. 

For starters, judges are state actors, as are government agencies, so there are constitutional problems with their involvement in these efforts. To the extent that nonprofits, also mentioned in the article, are involved, they are likewise prohibited from engaging in racial discrimination by Title VI of the 1964 Civil Rights Act if they get any federal money. Of course, the Supreme Court in its wisdom has interpreted Title VI and the Constitution to allow racial preferences in university admissions, but this “diversity” rationale has never been recognized by the Court in the employment context. 

Most important, Title VII of the 1964 Civil Rights Act has never had a “diversity” exception carved out of it by the federal courts, and it prohibits racial discrimination by federal and state employers, which would include judges. What’s more, it bans discrimination by any “employment agency,” which it defines as “any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes the agent of such person,” which would cover the nonprofits and others discussed in the National Law Journal article.

To paraphrase Luke 4:23, “Judge, sue thyself.”


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