Bench Memos

NRO’s home for judicial news and analysis.

Scalia’s Gaffe Was Stevens’s Gaffe


Per a new post by Jonathan Adler, Justice Stevens, in his 2009 dissent in Entergy Corp. v. Riverkeeper, Inc., made the very same mischaracterization of the EPA position in the 2001 case (Whitman v. American Trucking Ass’n):

In that case [Whitman v. American Trucking], the Court reviewed the EPA’s claim that §109 of the Clean Air Act (CAA) … authorized the Agency to consider implementation costs in setting ambient air quality standards. 

So it seems plausible that Scalia made the mistake of relying on Stevens’s mischaracterization.

That, I emphasize, would be no excuse for the gaffe. Indeed, relying on Stevens for anything would be a serious mistake. But it does render even more ridiculous all the over-the-top frenzy from the Left. 

Statement of Prop 8 Defender Chuck Cooper


In response to some recent developments, Chuck Cooper, the lead attorney for the proponents of California’s Proposition 8 in the litigation that challenged that initiative, has sent me a statement that I reproduce in full below.

As readers of this blog know, I followed the litigation, from the district court to the Ninth Circuit to the Supreme Court, very closely. I spoke or e-mailed with Chuck (as well as others), both by phone and by e-mail, on numerous occasions. On the core proposition in Chuck’s statement below—that he “devoted [himself] body and soul to the defense of Proposition 8”—I will firmly attest that I had no doubt at any time during the litigation, and I have no doubt now, that Chuck was thoroughly and tirelessly dedicated to defending Proposition 8. Indeed, I would describe his efforts, in the face of the overwhelming resources of the other side, some very biased judges, and lots of personal abuse, as nothing short of heroic.

Here is Chuck’s statement:

Almost a year has passed since the Supreme Court opened the way for same-sex marriages in California by deciding that my clients, four of the five official proponents of Proposition 8, lacked standing to defend in federal court the constitutionality of the 2008 measure reaffirming the State’s legal definition of marriage as the union of one man and one woman.

Jo Becker’s new book about the Proposition 8 case, Forcing the Spring, has brought the case back into the news, and some of the media attention has focused on the book’s pages relating to my daughter’s plans to marry a young woman in Massachusetts this summer. Our family knew, of course, that the irony in this would not be lost on the media, and we have been expecting this momentary public spotlight, as well as the comments, kind and unkind, that would inevitably follow along. Some of the comments, from both sides in the public debate over same-sex marriage, have carried the speculation that perhaps my heart was not in my defense of Proposition 8, that I was ambivalent about the outcome of the case.  Although I have declined all invitations to speak about my family, I cannot allow this suggestion to go unanswered.

Make no mistake, I believed then and I believe now, fervently, that Proposition 8 was a constitutional exercise of the right of California’s voters to decide this difficult and controversial public policy issue, and I and my colleagues devoted ourselves body and soul to the defense of Proposition 8 for four years. The heart of our defense, from beginning to end, was the simple proposition that people of goodwill can reasonably disagree over whether marriage should be redefined to include same-sex couples, and that the Constitution, therefore, leaves resolution of that controversial public policy issue in the hands of the voters of each State, to decide according to their own social, political, and moral values, and does not place it in the hands of federal judges.

Our position on the constitutional issue was thus entirely distinct from, and did not take sides on, the social policy issue. Indeed, in my initial appearance in the District Court, I stated that if the tables were turned – if California’s voters had adopted gay marriage, as the voters of several states now have — I would be no less willing to defend their right to make that decision too.

Throughout every stage of the case, and long before my daughter told me she is gay, my colleagues and I expressed our genuine respect and good will for our opponents and other supporters of gay marriage. Here is what we said about them to the Supreme Court: “[T]hey are decent, thoughtful citizens from all walks of life, all political parties, and all races and creeds. They are our family members, our friends, our colleagues and coworkers, our community and business leaders, and our public officials.” But we insisted that the same is also true of the vast majority of Proposition 8’s supporters, and that their views on marriage are entitled to no less consideration and respect, both in the political process and in the courts. I believe these things no less now than I did then, and before then.

In a recent decision upholding a Michigan voter initiative prohibiting racial preferences in college admissions, Justice Kennedy, writing for a plurality of the Supreme Court, spoke of the fundamental right of citizenship in our democratic society; namely, the right “held not just by one person but by all in common . . . to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process.” The citizens of California no longer have the right to speak and debate and learn and then to decide the marriage issue through the electoral process; their right was nullified by a single federal judge in San Francisco. Elsewhere across the country, however, the political debate over marriage is intensifying, fueled by rapidly changing public attitudes on this issue. But regardless of how the citizens of each state decide this issue, it is their decision to make.


Anti-Scalia Derangement Syndrome Strikes Again


As Jonathan Adler promptly pointed out in a Volokh Conspiracy post, Justice Scalia made an embarrassing gaffe in his dissent Tuesday in an EPA case. In short, he misstated the position that the EPA had taken in a 2001 case (a case in which he had written the majority opinion). His misstatement misframed the lead-in to his sub-argument that the Court’s ruling on Tuesday was in conflict with its ruling 13 years ago.

There is good reason for folks to be surprised by Scalia’s error. The gaffe also gives Scalia’s critics ample occasion to deride the error, and I won’t fault them for having fun doing so, as I won’t dispute that I and others would likely be doing the same for a blunder by a liberal justice.

But, given the frenzy on the Left over the gaffe, I think that it’s important to put it in proper perspective. For starters, Scalia’s error was utterly immaterial to the legal rationale for his dissent. It affected only his lead-in to one argument and had zero impact on the merits of that argument. (The inconsequential nature of the error is presumably what explains the otherwise surprising fact that none of the other justices or their clerks evidently noticed it.) More broadly, the genuinely momentous errors that justices make—the sort of errors that might merit the adjective “epic” that some have extravagantly applied to Scalia’s gaffe—involve getting the law wrong by misreading or misinterpreting constitutional and other legal provisions.

Fortunately for Scalia, his most fervent critics are vulnerable to what I call Anti-Scalia Derangement Syndrome—a condition that leads those with animus against Scalia to get unhinged and make fools of themselves. In a great post yesterday evening, Jonathan Adler exposes the latest victim of ASDS, a fellow by the name of Brian Beutler.

Yesterday Beutler wrote an essay for the  New Republic modestly titled “Scalia’s Epic Blunder Exposes His Partisan Hackery.” The URL for the essay hilariously reads “Supreme Court Justice Scalia Makes Huge Error Journalist Never Would.” (For ease of reading, I’ve altered the punctuation.) Unfortunately for Beutler, he proceeds to make a series of his own blunders.

As Adler details, Beutler gets Scalia’s gaffe wrong: Beutler mistakenly asserts that Scalia “misremembered the issue” in the 2001 case and, as a result, erred “by suggesting that the [majority’s holding on Tuesday] contradicted” the ruling in that case. Adler shows further that Beutler makes other errors of the very sort that he faults Scalia for and that Beutler’s broader condemnation of Scalia “ignores the whole of Justice Scalia’s jurisprudence on statutory interpretation and administrative law.”  

It’s especially funny that Beutler recites “the maxim that if you’re going to pull a fact check, you better be 100 percent correct, or prepared to endure tremendous ridicule.” But it turns out that Beutler isn’t prepared to endure the ridicule that he deserves. In tweets last night responding to Adler, he called Adler’s smackdown “silly” and falsely claimed that he didn’t misdescribe Scalia’s error. And despite criticizing the Court for not making a “formal correction” (as Adler points out, the Court in fact did follow its usual formal process), Beutler, as of the time I’m writing this, hasn’t acknowledged or corrected his errors or shown any signs that he will.

“Partisan hackery,” indeed.

Judicial Confirmations Proceed Apace


Todd Ruger of the Legal Times reports that the Senate has confirmed nine judges this week.  In addition to Michelle Friedland, a Ninth Circuit nominee, the Senate confirmed eight district court judges. The Senate also voted 60-38 for cloture on the nomination of Kansas Supreme Court Justice Nancy Moritz to the U.S. Court of Appeals for the Tenth Circuit. This clears the way for the Senate to confirm Moritz next week.

A Review of Justice Stevens’s Senate Testimony


Having explained my position that Justice Stevens’s act of testifying before the Senate Rules Committee on campaign-finance reform was unethical, I’ll now offer some observations on the substance of Stevens’s testimony, the brief text  (1000 words or so) is available here.

1. Stevens argues that campaign-finance rules “should create a level playing field” and “should give rival candidates—irrespective of their party and incumbency status—an equal opportunity to persuade citizens to vote for them.”

This strikes me as worse than quixotic, as dangerously foolish. What does the goal of a “level playing field” even mean? Should candidates whose qualifications and positions earn them ardent support—whether in campaign contributions or volunteer help—be required to share that support with less able candidates? Should reporters and editorialists be required to accord equally favorable treatment to all candidates? (Stevens’s proposed amendment wouldn’t go that far, but his rationale would.) Should some bureaucrat be determining which candidate advantages are fairly earned and which aren’t?

2. In support of campaign-finance rules that distinguish “between money provided [to candidates] by their constituents and money provided by non-voters [whether corporations or non-residents],” Stevens cites a recent decision upholding a federal statute that prohibits foreign citizens from spending money to support or oppose candidates for federal office. He then makes this extravagant argument by analogy:

During World War II, the reasoning behind the statute would have prohibited Japanese agents from spending money opposing the re-election of FDR but would not have limited their ability to broadcast propaganda to our troops. Similar reasoning would justify the State of Michigan placing restrictions on campaign expenditures made by residents of Wisconsin or Indiana without curtailing their speech about general issues.

While very skeptical, I’m open to being persuaded that such restrictions might comply with the First Amendment.* But comparing corporations and residents of other states to enemy aliens in wartime isn’t a good start.

3. Stating that “money is not speech,” Stevens asserts “financial activities should not receive the same constitutional protection as speech itself.” Why not? “After all, campaign funds were used to finance the Watergate burglaries—actions that clearly were not protected by the First Amendment.” (That’s the entirety of his argument.) I don’t see what that has to do with anything. I’d instead recommend Eugene Volokh’s short video, “Is Money Speech?

Overall, a very feeble performance. (Stevens didn’t take questions—perhaps in recognition of the ethical minefield in which he had placed himself—so there is nothing beyond his testimony.)​

* Of course, if Stevens is maintaining that his proposed constitutional amendment is necessary to impose the distinction he favors—it’s not clear that he is—then the First Amendment would be no obstacle (if, that is, the distinction is “reasonable”​).


This Day in Liberal Judicial Activism—May 1


1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.

One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor and Souter dissent. 

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination is finally confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.

A Case Study on Politicized Judging from Montana


In 2011, the Montana Supreme Court famously decided it didn’t need to follow the U.S Supreme Court’s decision in Citizens United. The decision was exceptional even for Montana, whose supreme court has been ranked by the U.S. Chamber of Commerce as one of the least fair, competent, and impartial in the country. Unsurprisingly, that lawless decision was summarily reversed by the U.S. Supreme Court. 

Apparently the disregard for clear precedent has filtered down to the lower courts in Montana as well. A recent case illustrates the willingness to explain away obvious legal authority and could turn into another Montana Supreme Court power-grab.

Montana Solicitor General Lawrence Van Dyke (whose appointment I noted here) is preparing to run for state Supreme Court. He is up against the machine of the Montana Trial Lawyers’ Association which for decades has had a stranglehold on the judicial elections and which supports his opponent, incumbent Justice Mike Wheat.

A native Montanan, VanDyke has been a member of the Montana State Bar since 2005, and thus complies with the state constitution’s requirement that a candidate for judicial office be a member of the state bar for at least five years. But his opponents at the MTLA have engineered a lawsuit that grasps at the thinnest of legal straws to argue that, because he was on inactive status during a portion of that time when he practiced out of state, he is not eligible. 

The legal issue is straightforward and obvious not only on the constitutional text itself, but from the constitutional convention, which considered making the requirements for judicial office more stringent and ultimately rejected the proposition. But that didn’t prevent a Montana trial judge from ruling against VanDyke on grounds that even his opponents in the case said had no legal merit.

Now the Montana Supreme Court is set to hear the appeal, but that court with its reputation for politicized rulings could be even less impartial than normal: of the six sitting justices, Justice Mike Wheat is VanDyke’s opponent in the upcoming election, and Chief Justice Mike McGrath was his first campaign donor. It would be manifestly unfair to have VanDyke’s eligibility to run be determined by a court including either of those two justices.  

While it takes a lot of chutzpah to flout clear U.S. Supreme Court precedent, hearing a case in which one is so obviously biased could do even more damage to the judicial office in Montana. I hope Chief Justice McGrath and Justice Wheat are quick to step aside to allow a neutral court to decide what should be a simple case.

Re: Justice Stevens’s Unethical Testimony


A reader asks, reasonably, that I explain my assessment that Justice Stevens has acted unethically in testifying before Congress in favor of a constitutional amendment on campaign-finance restrictions. So here’s a short version:

1. When Stevens decided to retire from active service, he had two options under 28 U.S.C. § 371: He could fully retire (i.e., “retire from the office”) under subpart (a), or he could “retain the office but retire from regular active service” under subpart (b). As his retirement letter reflects, Stevens clearly chose the second option: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.” Further, the Supreme Court’s public information office advised me yesterday that he remains retired under subpart (b). Thus, he remains an Article III judge.

2. The Judicial Conference of the United States has adopted the Code of Conduct for United States Judges and has authorized its designated Committee on Codes of Conduct to issue advisory opinions on the meaning of the Code of Conduct. (The Code of Conduct doesn’t formally apply to Supreme Court justices (including those retired pursuant to § 371(b)), but it’s generally regarded as providing a benchmark for judging their conduct.)

In its Advisory Opinion No. 50 (available, along with other opinions, here), the Committee on Codes of Conduct concludes that, notwithstanding the arguably expansive text of Canon 4A(2),

a judge may appear at a public hearing before or consult with an executive or legislative body or official relative to matters not concerning judicial administration only “to the extent that it would generally be perceived that a judge’s judicial experience provides special expertise in that area.”  

In its Advisory Opinion No. 93, the Committee on Codes of Conduct, in summarizing Advisory Opinion No. 50, states:

We have … advised that legislative appearances by a judge are generally permissible only where the subject matter reasonably may be considered to merit the attention and comment of a judge as a judge, and not merely as an individual. [Emphasis added.]

3. I don’t see how Stevens’s role in deciding cases involving campaign finance should be thought to give him “special expertise in that area” any more, say, that Justice Scalia’s role in deciding cases involving abortion gives him special expertise in that area. Anyone who would be appalled if Scalia were to testify before Congress on, say, a proposed Human Life Amendment ought equally to be appalled by Stevens’s testimony. There is nothing about either topic that would “reasonably … be considered to merit the attention and comment of a judge as a judge.”

Update: Eugene Volokh disagrees with my conclusion. He thinks that Stevens does have the requisite “special expertise” in campaign finance, largely because Stevens “is the one living judge who has participated in the greatest number of campaign finance cases.” I don’t see how his comparison of Stevens to other judges is relevant. As I read the commentary, the question instead is whether Stevens has special expertise compared to the universe of campaign-finance experts who aren’t judges. Unlike, say, a judge’s unique insights on how juries operate, I don’t see how a judge has anything special to add on campaign finance.​

Update #2: Eugene Volokh responds (same link) to my first update. I think that what divides us is how we read the Advisory Opinions. As I read them, the “special expertise” they require is something very like the special expertise that judges have in judicial administration. Volokh objects that the Advisory Opinions “set forth a ‘special expertise’ standard, not an ‘unparalleled expertise’ standard.” But here is how Advisory Opinion No. 93 puts it: “permissible law-related activities are ‘limited to the kinds of matters a judge, by virtue of [the judge’s] judicial experience, is uniquely qualified to address.’” (Emphasis added.) I think that my focus on “whether Stevens has special expertise compared to the universe of campaign-finance experts who aren’t judges” is faithful to that standard and that Volokh’s inquiry (comparing Stevens to other judges) is not.


Incompetence, or Stupidity, in that NC “Religious Liberty” Marriage Case?


Yesterday Ramesh Ponnuru responded at The Corner to a Slate piece by Mark Joseph Stern, describing a lawsuit brought against the state of North Carolina by (among others) the General Synod of the United Church of Christ.  According to Stern,

Under North Carolina law, a minister who officiates a marriage ceremony between a couple with no valid marriage license is guilty of a Class A misdemeanor and can be thrown in jail for 45 days. And since gay marriage is illegal in North Carolina, that means any minister who dares celebrate a gay union in his church may face jail time.

This, Stern said, is an egregious violation of religious liberty, so what did the putative defenders of that liberty have to say about it?  Ramesh said he’d never heard of this North Carolina law, but if the matter were as Stern described, he was against it.  Later, on second thought after looking at the law in question, though, Ramesh said it didn’t sound at all like the situation Stern claimed it was.

These second thoughts were wise.  The lawsuit is bogus through and through, a fact you will not of course learn from Stern, or from Michael Paulson of the New York Times, who wrote about it for today’s paper.  I have read the complaint, and can confidently say that the religious liberty claims in it are a frivolous waste of time for the federal district court in which it was filed.  In fact, the suit is based on such a laughably obvious misreading of the relevant North Carolina statute that we can say the lawyers filing it are either incompetent, or willing to tell outrageous falsehoods about the plain meaning of a statute.

Here’s the situation: North Carolina recognizes marriages only between a man and a woman.  Like other states, it authorizes clergy in various religious faiths to solemnize those marriages, fill out and sign civil marriages, and file them with the appropriate state authorities.  There are civil and criminal penalties in North Carolina for ministers and other authorized persons who do not follow correct procedures.

Local clergy in several faiths, including the United Church of Christ, claim in their federal court filing that the laws imposing such potential penalties actually forbid them to engage in ceremonies they wish to perform in their own churches and synagogues for same-sex couples, which they are pleased to call a “marriage,” because they would acting outside the prescribed state licensing scheme for civil marriages.  Hence they claim to fear prosecution.  In the words of the complaint:

[M]inisters and others who are authorized to conduct marriages in North Carolina are expressly precluded by State law from performing any ceremony of marriage between same-sex couples, even if their faith and religious beliefs allow them to conduct such ceremonies and recognize those marriages. . . .

If a minister conducts any marriage ceremony between same-sex couples, he or she is guilty of a crime.

These claims are patently false.  The complaint itself, immediately after the last line above, quotes the relevant statutory language, but the authors of the complaint evidently do not understand it:

a. North Carolina General Statute § 51-6 states: “Solemnization without license unlawful. No minister, officer, or any other person authorized to solemnize a marriage under the laws of this State shall perform a ceremony of marriage between a man and woman, or shall declare them to be husband and wife, until there is delivered to that person a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage license was issued or by a lawful deputy or assistant.”

b. North Carolina General Statute § 51-7 states: “Every minister, officer, or any other person authorized to solemnize a marriage under the laws of this State, who marries any couple without a license being first delivered to that person, as required by law, or after the expiration of such license, or who fails to return such license to the register of deeds within 10 days after any marriage celebrated by virtue thereof, with the certificate appended thereto duly filled up and signed, shall forfeit and pay two hundred dollars ($200.00) to any person who sues therefore, and shall also be guilty of a Class 1 misdemeanor.”

These two provisions must be read together, in the context of the state’s decision to recognize marriages only between a man and a woman.  § 51-6 requires authorized persons to act only on valid marriage licenses, if they are going to “declare” a couple “husband and wife” for civil legal purposes.  § 51-7 further tells these authorized persons that they are answerable in any case where they do not first get the license, or fail to act on it before it expires, or fail to return it properly finished to the register of deeds in ten days. 

This law, whether wise or unwise, is merely a regulation by the state of the process of solemnizing, concluding, and recording those marriages the state recognizes as marriages.  It has no application whatever to any situation where a clergyman wants to preside over a ceremony that the state does not recognize as a marriage.  To their hearts’ content, the clergy of the United Church of Christ may “marry” away, in twos and threes and fives, any persons of either sex just as freely as they wish, and the state of North Carolina has nothing to say about it.  Their religious freedom to call these unions “marriages” for their own purposes is completely untrammeled.  They just aren’t marriages under North Carolina law.  And because they aren’t, neither statutory provision above has any application.  Those laws are quite orthogonal, occupying a domain untouched by whatever it is these clergy want to do in their houses of worship.

It is notable that this trumped-up fakery is in the guise of a lawsuit for declaratory relief.  That is, there is no pending prosecution of any clergyman in North Carolina for “violating” the totally imaginary “prohibition” on their same-sex “marriage” ceremonies.  I doubt there has ever been a whisper of a hint of a threat to prosecute, for a complete defense against such prosecution is available in the form of a competent reading of the law.

The complaint filed in Charlotte federal court names three classes of plaintiffs: several “religious denominations,” several clergy or “minister plaintiffs,” and several same-sex couples who want to get married.  The last of these groups is making the now-familiar set of (outlandish) due-process and equal-protection claims.  But they seem to have felt they needed some even more outlandish religious-liberty claims, so they have invited the other two groups of plaintiffs to help them manufacture a transparently ridiculous humbug of a case. 

Too bad for them that this over-hyped nonsense, complete with New York Times coverage, is exploded instantly by just reading the statute that is the target of the complaint.


Re: Race Matters


Like Justice Sotomayor, the New Yorker’s Jeffrey Toobin seems to think that the continued existence of racism—including the vile rantings of Cliven Bundy and Donald Sterling—bears meaningfully on the question whether Michigan’s ban on racial preferences is constitutionally permissible. Even worse, he baselessly attributes to the justices in the majority in Schuette v. BAMN—last week’s ruling on Michigan’s Proposal 2—an “insist[ence]” that racial discrimination is “ancient history.” (The quotes Toobin offers don’t remotely support his characterization.)

Senate Confirms Another Ninth Circuit Nominee


Yesterday, by a vote of 51-40, the Senate confirmed attorney Michelle Friedland to the U.S. Court of Appeals for the Ninth Circuit. With her confirmation, there are no longer any vacancies on the Ninth Circuit. According to Bob Egelko, this is the first time ever the Court has had 29 active judges.  It’s also interesting that Friedland is third attorney from the same law firm — Munger Tolles & Olson — nominated to the Ninthc Circuit by President Obama and confirmed by the Senate.

This Day in Liberal Judicial Activism—April 29


1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

RGA Attacks Lawyer for Being Defense Attorney


When folks on the left attacked some of President Bush’s judicial nominees for having represented politically unpopular clients or having advanced controversial positions in court, many conservatives cried foul — and rightly so.  As David Rivkin and Lee Casey explained in Policy Review, the adversary legal system relies upon the willingness of lawyers to represent even the most unpopular or unpalatable clients, and the canons of legal ethics provide that it is improper to impute to an attorney the position of his or her client.  Unfortunately it seems that the attack ad specialists at the Republican Governors  Association never learned these lessons, as they have produced two ads assailing South Carolina gubernatorial candidate Vincent Sheheen for having represented criminals when he worked as a criminal defense attorney.  I have not doubt these ads are effective, but they are also wrong.  Attorneys should not be vilified because they were willing to represent those who needed a defense, and we should fear a system in which such representation can come at the cost of one’s political career.  I have even stronger words for these advertisements at the Volokh Conspiracy here and here.

Justice Stevens’s Unethical Testimony


Justice John Paul Stevens Stevens retired only from active service in 2010. He remains an Article III judge (eligible to sit on a lower court) and is therefore subject to the same ethical norms that govern the justices in active service. Nonetheless, on top of authoring a book that “offers a manifesto on how the Constitution needs to change,” Justice Stevens has somehow agreed to testify this Wednesday at a Senate Rules Committee hearing on the politically contentious topic of campaign-finance restrictions. I hope that a senator will ask him to explain how it is ethical for him to testify on this matter.

Addendum: Josh Blackman soundly weighs in:

In what bizarro world does an Article III Judge testify before the Senate about a decision issued by his Court. I am out of adjectives to describe the post-judicial behavior of Justice Stevens.

If he wants to speak out against the Court, he should resign his commission, and write as a private citizen. Everyone thinks he has already retired. That’s how his book describes him. So, make it so.

This Day in Liberal Judicial Activism—April 28


2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.

Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”

Only after the cameras are off, in her written responses to post-hearing questions, will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.

See here for fuller account. 

This Day in Liberal Judicial Activism—April 26


1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.

Lincoln at Gettysburg


The new issue of National Affairs (whose founding editor is my Ethics and Public Policy Center colleague, and Corner contributor, Yuval Levin) features a wonderfully insightful essay by Diana Schaub on the Gettysburg Address. Here’s a sample passage:

The first paragraph of the Gettysburg Address consists of only one sentence, but it’s a doozy. It describes the past, the nation’s beginnings. What Lincoln called “the birthday of the United States of America” in the serenade speech has been transformed into a sophisticated, poetic metaphor that refers to three distinct moments: conception, birth, and baptism. The past that Lincoln refers to is a past that stretches back before living memory. “Four score and seven years ago” exceeds the individual’s allotment of “three score and ten,” the Biblical phrase for the natural span of a human life. Lincoln’s decision to formulate the date in this way accentuates the fact that the founding is now beyond anyone’s direct experience.

By the way, the “serenade speech” that Schaub refers to in that passage was the “impromptu speech that Lincoln gave on July 7th, right after the [Gettysburg] victory, when residents of the District of Columbia assembled outside the White House to serenade him.” As Schaub points out, in that serenade speech Lincoln “prefigures points he will make at Gettysburg” but “in very different language.” Here, as one stark example, is how it started out: “How long ago is it?—eighty odd years ….”

This Day in Liberal Judicial Activism—April 25


1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.

Profile of Justice Alito


I very much enjoyed this American Spectator profile of Justice Alito.

Did Justice Kennedy ‘Schuette Down’ the Same-Sex Marriage ‘Inevitability’ Narrative?


Did Justice Anthony Kennedy just signal in Tuesday’s Schuette v. BAMN decision that he might vote to uphold state constitutional amendments defining marriage as between one man and one woman? That seemed very doubtful last June when Justice Kennedy authored the majority opinion striking down Section 3 of the federal Defense of Marriage Act (federal DOMA) in U.S. v. Windsor. Many assumed after Windsor that it was “inevitable” for the Supreme Court to create a constitutional right to compel states to recognize same-sex marriage.

However, Justice Kennedy’s strong endorsement of voters deciding controversial social issues through their state constitution’s amendment process in Schuette raises the question of whether he is a sure vote to strike down state constitutional provisions defining marriage as one man and one woman. In Schuette, Justice Kennedy and five other justices upheld a voter-approved Michigan state constitutional amendment prohibiting state universities and public schools from granting “preferential treatment” to individuals based on their race, sex, ethnicity or national origin in operating the schools. Activists unsuccessfully challenged the Michigan amendment using equal protection arguments similar to those used to attack the various state marriage amendments.

Many view Justice Kennedy as the swing vote for a federal constitutional right to redefine marriage, so his views in Schuette on state constitutional amendments are important.  Justice Kennedy wrote at length how the Constitution permits state voters to determine difficult and divisive moral issues permeated with “rancor,” and that courts should stay out of these conflicts:

This case is not about how the debate about racial preferences should be resolved. It is about who may resolve it. There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters . . . Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

These passages and more from the opinion conflict significantly with the decisions of many federal district courts interpreting Windsor as directing them to strike down state marriage amendments, which they have done with zeal. Schuette indicates that the lower courts may have been reading Windsor too broadly, because Schuette reinforces what Justice Kennedy wrote in Windsor — that in our federalist system, state governments have the legal authority to affirm marriage.

Schuette also shows that Justice Kennedy may have a more complex and nuanced view about “animus” motivating voters to approve state constitutional amendments.  He characterized positively the deliberations by voters to approve the Michigan amendment.  Justice Kennedy wrote that Michigan voters approved the amendment based on thoughtful consideration of the evidence and arguments, and not because of rank prejudice (which marriage advocates have been saying for years about the motivation of voters who approved marriage amendments in most states in the union):

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds.  The process of public discourse and political debate should not be foreclosed even if there is a risk that during a public campaign, there will be those on both sides who seek to use racial division and discord to their own political advantage.  An informed public can, and must rise above this.

Will these new issues raised by Schuette appear in the marriage cases now pending at several federal appeals courts?  They should, and we may know soon. The Tenth Circuit in Denver just heard appeals of federal district court decisions that struck down the marriage amendments in Utah and Oklahoma.  The Fourth Circuit in Richmond set to hear oral arguments May 13 on the constitutionality of Virginia’s marriage amendment.

I would not be surprised to see supplemental briefing in those cases on how the Supreme Court’s decision in Schuette affects the constitutionality of the state marriage amendments.  After Schuette, a Supreme Court decree commanding states to redefine marriage looks a bit less inevitable.

— Jordan Lorence is senior counsel for Alliance Defending Freedom in its Washington, D.C., office. ADF is defending both the Oklahoma and Virginia marriage amendments at the 10th and 4th federal circuit appeals courts, respectively.


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