Bench Memos

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This Day in Liberal Judicial Activism—April 12


1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Justice Alito Talking Baseball


Now that the Washington Nationals are off to a strong 7-2 start, I’ll briefly indulge my passion for baseball by noting that Justice Alito will be taking part in a May 30 lunch event in D.C. titled “Let’s Talk Baseball.” Also taking part in the panel discussion will be New York Times columnist David Brooks and ESPN’s Tim Kurkjian. Dallas attorney Talmage Boston, who has written two books on baseball, will moderate. (Unfortunately, tickets to the event cost $80.)

Speaking of baseball: There’s always been a special affinity between baseball and math, so you can add to the list of great names of ballplayers Arquimedes Euclides Caminero. Yes, Archimedes Euclid. Arquimedes, who hails from the Dominican Republic, is the youngest of eight siblings, and his father reportedly drew inspiration from an algebra book in naming him. (Whatever knowledge of spheres and geometry Caminero might have acquired from Archimedes and Euclid didn’t help him much yesterday, as he gave up a grand slam to the Nats’ Ian Desmond.)


Friedland Nomination Moves Forward


Today the Senate voted 56-41 in favor of cloture on the nomination of Michelle Friedland to an open seat on the U.S. Court of Appeals for the Ninth Circuit. Although the Senate is scheduled to go into recess, Majority Leader Harry Reid has threatened to keep the Senate in session until a final vote on her nomination.

Our EEOC in Action


In a unanimous ruling today (in Equal Employment Opportunity Comm’n v. Kaplan Higher Education Corp.), a Sixth Circuit panel rejected the EEOC’s claim that an educational institution’s use of credit checks for job applicants had a disparate impact in violation of federal law.

As the opinion notes, “the EEOC sued the [institution] for using the same type of background check that the EEOC uses,” and the institution used that check in order to help ensure that its employees complied with Department of Education regulations limiting access to students’ financial information.

On the merits of the disparate-impact claim, the opinion sums up the EEOC’s woeful failure to meet its burden:

The EEOC brought this case on the basis of a homemade methodology, crafted by a witness with no particular expertise to craft it, administered by persons with no particular expertise to administer it, tested by no one, and accepted only by the witness himself.

I’ll note that liberal icon Damon Keith was part of the unanimous panel; that’s further indication of how far afield the EEOC wandered.

The Financial Burden of Substantial Burden


Ed recently linked to a piece by law professor and Religion Clause expert Michael McConnell, who blogged at the Volokh Conspiracy about the Hobby Lobby arguments a couple of weeks ago. In the piece, Professor McConnell explains why Hobby Lobby’s religious exercise would be substantially burdened by forcing it to drop coverage, even if doing so would save the company money. Clearly, religious adherents do many things that are not profit-maximizing, so assuming that they always act in a profit-maximizing way is simply wrong.

Moreover, there is no information about the cost differential in the record, and it would be highly inappropriate for the court to speculate on such an important issue. Even if there were some way to come up with accurate average costs of health insurance, average costs say nothing about what Hobby Lobby contributes for its own employees’ health care. Nor is it reasonable to assume that all Hobby Lobby employees get subsidies. If these were serious issues, the government would have sought to make its record in the lower courts. 

McConnell also makes the important point that Hobby Lobby was providing generous health insurance and wages long before the phrase “Affordable Care Act” touched paper in Congress. Forcing Hobby Lobby to drop health coverage burdens their religious exercise because their religious beliefs require them to provide generous benefits to employees. All that’s required is that Hobby Lobby have a sincerely-held religious belief and that the government’s policy put substantial pressure on it to act against those beliefs. This has been unambiguous statutory law under RFRA for 20 years and clear Supreme Court precedent for more than 30 years, since Thomas v. Review Board of Indiana Employment Security Division. Religious adherents don’t have to get a “pastor’s note” to meet this legal standard. Nor do they have to show that violating a religious duty would be a “go to Hell immediately” sin (which would be a problem for religions that don’t believe in Hell). This is because no court is competent to judge a religious person’s theology (although some judges seem to think they are).  


This Day in Liberal Judicial Activism—April 8


2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. (The panel will later substitute in a slightly different version of its opinion.)

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit.

McCutcheon v. FEC: The ‘Appearance of Corruption’


The Supreme Court’s Wednesday opinion in McCutcheon v. FEC striking down aggregate political contribution limits has thus far been accused of a wide variety of sins, including that it opens the floodgates to “corruption.” Although it’s likely that anything short of a total vindication of pervasive contribution limits would have failed to satisfy the Left, Justice Breyer’s dissent took a more precise approach, criticizing the majority for failing to expand the definition of “corruption” to “influence over or access to” elected officials. Let’s see if this criticism is justified.

McCutcheon struck down aggregate limits on campaign donations, but left intact per-campaign donation limits (“base limits”) that cap the amount that a particular donor can direct to a particular candidate. In this case, for instance, Shaun McCutcheon brought suit because he wanted to give the symbolically significant amount of $1,776, less than the base limits, to multiple independent campaigns. The aggregate limits, however, capped the number of campaigns to which he could contribute this amount. As a practical matter, aggregate limits imposed a limit on the number of campaigns that he could meaningfully support.

Although the government offered several interests supporting this limitation, the plurality opinion argues that the only constitutionally permissible governmental interest served by donation limits is actual or apparent quid pro quo corruption, that is, the actual or apparent exchanging of direct contributions for control of the officeholder’s official duties. Thus, individual donation limits are themselves a prophylactic measure for achieving this governmental interest.

Justice Breyer’s dissent takes issue with this proposition, beginning with what we might call the Justice Breyer Theory of Political Speech. Breyer argues that the purpose of speech is to “secure government action.” This portion of Justice Breyer’s opinion is nothing if not abstract, although it does occasionally make reference to actual case law. Citing a series of Progressive-era cases, Justice Breyer’s dissent suggests that the purpose of freedom of speech under the First Amendment is to permit the people to engage in unimpeded “collective speech” with their representatives, and that the “appearance of corruption” arises when the public believes that its “efforts to communicate with its representatives or to help sway public opinion have little purpose,” ultimately resulting in a loss of interest in political participation and loss of faith in those who govern.

Now, one might assume that Justice Breyer would simply rely on these broad propositions to articulate a broad definition of “corruption,” but he doesn’t. Instead, he draws a circle: governmental interests in preventing “corruption,” defined as hindrances to electoral speech, are actually based on the First Amendment itself. Indeed, Justice Breyer argues, campaign-finance laws are not only a potential violation of the First Amendment, they are actually necessary to strengthen it. Thus, Justice Breyer manages to pit the First Amendment against itself, raising the “potential for conflict” (his words) between diametrically-opposed priorities that ostensibly come from the same source. If this isn’t moving the constitutional goalposts, I don’t know what is.

The rest of Justice Breyer’s dissent is predictable, combining vague definitions of “corruption” with a series of hypothetical means of creating “undue influence.” Justice Breyer notes prior case law describing corruption as including “undue influence on an officeholder’s judgment,” whatever that is, and “privileged access to and pernicious influence upon” elected officials. He also identifies a series of hypothetical donations that, he says, illustrate the opportunities for nefarious political activities.

But the dissent inadvertently makes one thing clear: Under the broad definition of “corruption,” there is virtually no way to distinguish between influence, gratitude, or the conduct that Breyer considers “corruption.” As a result, Breyer’s hypotheticals conflate support for a political party or movement with official corruption. If that’s what corruption means, then Breyer’s view would impose essentially no limits on the government’s ability to regulate the political activities of those that it deems too powerful. The plurality rightly notes that the First Amendment requires any ambiguities to be resolved in favor of more speech, not less.

Breyer’s view constitutes a dangerous weakening of the commonsense principle that, in freedom of speech cases, the threat of oppression comes from government, not speech itself. For Breyer’s abstract theory to resist degeneration into practical tyranny, campaign-finance regulators would need to be perfectly nonpartisan, immune from political pressure, and incapable of misunderstanding the messiness of politics. And that’s absurd.

Supreme Court Turns Down Elane Photography Case


Sadly, the U.S. Supreme Court declined today to hear the Elane Photography case, which concerned a New Mexico photographer who declined to shoot a same-sex commitment ceremony because of her beliefs defining marriage as one man and one woman. But it is far from the end of the line for the central issues involved in this case.

One of the women in the ceremony, Vanessa Willock, filed a complaint, and the New Mexico Human Rights Commission found Elane Photography guilty of “sexual orientation discrimination.” Elane Photography, represented by attorneys from Alliance Defending Freedom, argued that the First Amendment’s compelled speech doctrine protected the photographer from being forced to create expression she did not agree with. The New Mexico Supreme Court rejected this argument and basically concluded that business owners and professionals surrender their First Amendment rights when they enter the marketplace. Ominously, and with an Orwellian twist, Justice Richard Bosson wrote in a concurring opinion against Elane Photography that “the sense of respect we owe others, whether or not we believe as they do . . . it is the price of citizenship.”

This issue likely will return for a definite ruling from the Supreme Court in the future. It is important to note that the Supreme Court did not “uphold” the repressive decision of the New Mexico Supreme Court but merely decided not to hear the case. We don’t know why, but this is not an affirmance of the lower court opinion. The high court’s decision today sets no legal precedent. There are other cases now in the pipeline and probably more to follow that will likely reach the Supreme Court. We had strong amicus support in this case from Professor Eugene Volokh of UCLA and from the Cato Institute, which means the important First Amendment issues in this case will likely come before the Supreme Court again.

Today’s actions by the Supreme Court may unfortunately embolden some to expand their efforts to punish and humiliate publicly those who believe marriage is defined only as one man and one woman. The zealous followers of this ascendant orthodoxy supporting same-sex marriage are falling into the same error that many have stumbled into before them—when you gain power somewhere, punish the “heretics” and hound them to the outskirts of society. As a First Amendment attorney, I am concerned that this dark time of viewpoint suppression will get darker before it gets better. Our Founding Fathers gave us the First Amendment to protect people’s freedom of expression and freedom of conscience from these emotional spasms of government coercion. All Americans ought to see this growing threat to our liberty and our First Amendment traditions and speak against it. That is the true “price of citizenship.”

— Jordan Lorence is senior counsel with Alliance Defending Freedom

Marriage, Race, and Sex


The Heritage Foundation’s Ryan Anderson has an excellent paper exposing the folly of the widespread assertion that laws defining marriage as the union of man and woman are like laws banning interracial marriage:

Great thinkers throughout human history—and from every political community up until the year 2000—thought it reasonable to view marriage as the union of male and female, husband and wife, mother and father. Indeed, support for marriage as the union of man and woman has been a near human universal. The argument over redefining marriage to include same-sex relationships is one over the nature of marriage. Same-sex marriage is the result of revisionism in historical reasoning about marriage.

Bans on interracial marriage and Jim Crow laws, by contrast, were aspects of a much larger insidious movement that denied the fundamental equality and dignity of all human beings and forcibly segregated citizens. When these interracial marriage bans first arose in the American colonies, they were inconsistent not only with the common law inherited from England, but also with the customs of prior world history, which had not banned interracial marriage. These bans were based not on reason, but on prejudiced ideas about race that emerged in the modern period and that refused to regard all human beings as equal. This led to revisionist, unreasonable conclusions about marriage policy. Thinking that marriage has anything at all to do with race is unreasonable, and as a historical matter, few great thinkers ever suggested that it did.

The male-female nature of marriage is intrinsic to the perennial understanding of marriage:

Marriage is the institution that different cultures and societies across time and place developed to maximize the likelihood that a man would commit to a woman and that the two of them would then take responsibility for protecting, nurturing, and educating any children that they may create.

Far from having been devised as a pretext for excluding same-sex relationships—as some now charge—marriage as the union of husband and wife arose in many places over several centuries entirely independent of and well before any debates about same-sex relationships. Indeed, it arose in cultures that had no concept of sexual orientation and in some that fully accepted homoeroticism and even took it for granted.

By contrast, “Bans on interracial marriage had nothing to do with the nature of marriage and everything to do with denying dignity and equality before the law.”

Political grandstanding aside, I have to doubt that there are many people who genuinely believe that laws defining marriage as the union of man and woman are like laws banning interracial marriage. To anyone who purports to believe that, I would ask: Did you enthusiastically vote for Barack Obama in 2008 (when he maintained that he opposed redefining marriage)? If so, is it conceivable that you would enthusiastically vote for someone who said that he supports laws banning interracial marriage (even if you believed he didn’t really mean it)?

This Day in Liberal Judicial Activism—April 7


1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.) 

This Day in Liberal Judicial Activism—April 6


1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history. As one of Blackmun’s own former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)  

Obama Outpaces Bush on Judicial Confirmations


On Monday, the Senate confirmed John Owens to the U.S. Court of Appeals for the Ninth Circuit and two district court judges.  As Politico reports, this means President Obama is now outpacing President Bush in placing judges on the bench.  According to the Politico story:

Over the course of his presidency so far, Obama’s nominated 301 judges and gotten 237 confirmed. By this point in his presidency, Bush had nominated 267 judges and had 234 of them confirmed.

As of April 4, Obama has gotten 44 circuit court judges and 191 district court judges confirmed. As of April 4, 2006, Bush had 43 circuit court and 189 district court judges confirmed.

This Day in Liberal Judicial Activism—April 4


1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas is the longest-serving justice in history.

In his 2003 New Republic review of a biography of Douglas (Wild Bill: The Legend and Life of William O. Douglas, by Bruce Allen Murphy), Seventh Circuit judge Richard A. Posner offers this succinct summary of Douglas’s judicial career: “For Douglas, law was merely politics.” Here’s Posner’s colorful fuller assessment: “Apart from being a flagrant liar, Douglas was a compulsive womanizer, a heavy drinker, a terrible husband to each of his four wives, a terrible father to his two children, and a bored, distracted, uncollegial, irresponsible, and at times unethical Supreme Court justice who regularly left the Court for his summer vacation weeks before the term ended. Rude, ice-cold, hot-tempered, ungrateful, foul-mouthed, self-absorbed, and devoured by ambition, he was also financially reckless—at once a big spender, a tightwad, and a sponge—who, while he was serving as a justice, received a substantial salary from a foundation established and controlled by a shady Las Vegas businessman.”

As Posner acknowledges, one can, of course, “be a bad person and a good judge, just as one can be a good person and a bad judge.” By the evidence, Douglas was both a terrible person and a terrible judge.

Supreme Court’s McCutcheon Decision: Armageddon, or Common Sense?


The Supreme Court on Wednesday rendered its decision in McCutcheon v. Federal Election Commission. The Court struck down, under the Free Speech guarantee of the First Amendment, the federal law setting a dollar limit upon the total (or “aggregate”) amount of money a person can spend on political contributions to candidates, parties, and political committees. (Limits on contributions to particular candidates and PACs remain in place.) The decision was 5–4, and the dissent sounded the alarm:

Taken together with Citi­zens United v. Federal Election Comm’n, 558 U. S. 310 (2010), today’s decision eviscerates our Nation’s campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to resolve.

What a quotable sound bite! The dissent simultaneously invokes the bugbear (to liberals) of the Court’s Citizens United decision and proclaims, for campaign-finance regulation, the end of the world as we know it.

The dissenting justices — Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan — are being hyperbolic, of course, if not downright hyperventilating. All the McCutcheon decision held was that, since donors are already limited in how much they can give to Candidate X, Party Y, or PAC Z, it makes no constitutional sense to say that there has to be a limit on how many candidates, parties, or PACs the donor can support. If it’s not “corrupting” to give $5,200 each to nine candidates for federal office, how can it suddenly become a “grave problem of democratic legitimacy” if the same donor gives the same amount to ten, 12, or, 30 candidates? As the chief justice’s lead opinion explained, “the Government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.” Or, to put it differently, if it would be a First Amendment problem for the government to put a limit on how much money a person can spend on different books, newspapers, and cable TV channels, isn’t it also a First Amendment problem for government to put a limit on how much money a person can spend on different political candidates, parties, and causes?

The root of the dispute stems from radically different understandings of political “corruption.” Here’s the chief justice’s take on what “corruption” means:

“The hallmark of corruption is the financial quid pro quo: dollars for political favors.” Campaign finance restrictions that pursue other objectives, we have explained, impermissibly inject the Government “into the debate over who should govern.” And those who govern should be the last people to help decide who should govern.

The dissenters, by contrast, claim the Chief “defines ‘corruption’ too narrowly.” Does this mean the dissent would characterize as “corruption” such displays as rewarding with campaign money those who vote a certain way, such as in favor of same-sex “marriage”? Yet a candidate’s fundraising success naturally depends upon the donors being happy with what the candidate either has done or promises to do, triggering the donors’ support through contributions. If this is “corruption,” then all money given because of support of a candidate’s views is “corruption.”

The dissenters assert that for them, “corruption” is “understood not as quid pro quo bribery, but as privileged access to and pernicious influence upon elected representatives.” But this definition is hardly helpful. First of all, whether political influence is “pernicious” begs the question whether that influence is ipso facto “corrupt.” (Otherwise what is pernicious for one — like lobbying for a certain policy on abortion — is positive for someone else.) Second, “privileged access” is not just the province of big donors. It also is a feature of celebrities; major media; and a host of political heavy hitters, from EMILY’s List, Planned Parenthood, and unions on the left, to the Chamber of Commerce, pro-lifers, and the gun lobby on the right. (And even small donors sometimes get privileged access in return for money.) Are politicians supposed to give the cold shoulder to their allies, just because those allies can convert political support into votes? After all, the whole point of raising campaign money is to use it to garner votes. Having support from grassroots organizations, favorable coverage in the media, and endorsements from the icons of pop culture cuts out the middlebucks, so to speak, by translating directly into votes. Isn’t this even more corrupting than money, if the McCutcheon dissenters are right?

The problem, according to the dissenters, is “the danger that officeholders will decide issues not on the merits or the desires of their constituencies, but according to the wishes of those who have made large financial contributions valued by the officeholder.” This is certainly a danger. But it is no different from the danger that politicians will make decisions because they crave fawning reviews in the mainstream media, or invitations to elite social events, or campaign back-up from certain powerful special-interest groups. If the danger is “special access and influence,” as the dissenters claim, why focus only on one kind of influence, namely that resulting from money? The First Amendment solution, the McCutcheon Court properly holds, is to take the government out of the business of tilting the political playing field.

— Walter M. Weber is senior litigation counsel at the American Center for Law and Justice.

Hobby Lobby: The “Accommodation” as Less Restrictive Means


As I spelled out in a pre-argument post, it is clear that the HHS mandate is not the least restrictive means of furthering any compelling interest that might be assumed to exist—and that it therefore violates the federal Religious Freedom Restoration Act—as the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a means that it says is less restrictive of their religious liberty. It is conceivable that a minimalist resolution of the Hobby Lobby case on this ground might garner a supermajority or even unanimity on the Court.

I’ve seen some confused discussion about what such a holding would involve, so I’d like to reiterate what seems to me straightforward:

As compared to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA whether or not the accommodation itself would survive a RFRA challenge. If the Court rules against the HHS mandate on the ground that the accommodation is a less restrictive means, there would be no reason for it to express any view on whether the accommodation itself satisfies RFRA. Among other things, that question hasn’t been briefed at all in this case, and it is the subject of pending litigation brought by religious nonprofits.

Similarly, for purposes of Hobby Lobby’s challenge to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA even though Hobby Lobby has not agreed that the accommodation would satisfy RFRA. Because the accommodation has never been offered to Hobby Lobby, Hobby Lobby has had no reason to assess its adequacy. (Indeed, the accommodation wasn’t even finalized until after the Tenth Circuit ruled in favor of Hobby Lobby.)​ Further, Hobby Lobby’s arguments about why the HHS mandate doesn’t further a compelling governmental interest—the first prong of RFRA’s strict scrutiny—would also apply against the accommodation.

In sum (and contrary to what Linda Greenhouse, near the end of her latest online column, seems to suppose), a resolution of the Hobby Lobby case on this minimalist ground would not mean that Hobby Lobby and other for-profit challengers would have to accept the accommodation. Nor would such a resolution eliminate the prospect that the Court would have to address, a year or so down the road, the separate arguments that the accommodation does not further any compelling interest and that it is not the least restrictive means of advancing any such interest.

This Day in Liberal Judicial Activism—April 3


2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing.

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook:

“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” 

McCutcheon v. FEC: A Victory for the First Amendment


This morning, the Supreme Court released its final decision in McCutcheon v. FEC, the first case argued this term. I had previously blogged about it here, and as I predicted, the opinion took on a 4–1–4 split. Although I couldn’t say after oral argument which way the decision would go, the court (as I hoped) upheld the First Amendment’s broad protections for political speech, striking down aggregate limits on political contributions (which effectively limit the quantity of races in which a particular donor can give).

I will have more thoughts after I’ve digested the whole opinion (the slip opinion is 94 pages), but here are a few preliminary observations:

The plurality opinion is written by Chief Justice Roberts and joined by Justices Scalia, Kennedy, and Alito. It focuses mainly on the application of Buckley v. Valeo, a 1976 Supreme Court decision that established a framework for regulating campaign contributions. Buckley recognized that the First Amendment’s protections generally include rights of both speech and association (“Congress shall make no law . . . abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”). Today’s opinion vindicates those constitutional rights within the Buckley framework.

As predicted, Justice Thomas voted to strike down the donation restrictions, writing a separate opinion concurring in the judgment in which he argued that Buckley “denigrates core First Amendment speech and should be overruled.” This is no surprise, given the numerous opinions he has devoted to this issue over the last 18 years. In Justice Thomas’s view, Buckley distinguishes impermissibly between political giving and political spending, allowing less rigorous scrutiny for political giving. Justice Thomas’s opinion, which controls the plurality opinion, will leave us with some interesting questions about what reasoning will bind the lower courts.

Justice Breyer’s dissent on behalf of the remaining justices takes issue with the plurality’s view that “corruption” justifying speech regulations refers to quid pro quo giving. Instead, Justice Breyer articulates his definition of corruption in broad political-theory terms, under which the Supreme Court ensures that politicians will not give “undue influence” or be “too compliant” with their contributors’ views or gain “privileged access to and pernicious influence upon” elected officials. But the plurality opinion rightly dismisses efforts toward these goals as attempts to “fine-tune” the electoral process.

And that dispute introduces the other major problem with this entire system of regulation: whether it is trying to “level the playing field” or something else, policing contributions beyond corruption put the government in the position of limiting and distinguishing the types of acceptable speech, which is exactly what the First Amendment is designed to prevent.

McCutcheon v. FEC


In a 5-4 ruling today, the Supreme Court struck down the “aggregate limits” on how much money a person may contribute in total to all candidates or committees during a two-year election cycle. Plurality opinion (for four justices) by the Chief; broader opinion concurring in the judgment by Justice Thomas; dissent (for four) by Justice Breyer.

(I might write more about the ruling once I have read the opinions.)

Michigan Marriage Fiasco


Now that I have some time, here are some brief observations on the recent (March 21) federal district-court ruling invalidating Michigan’s constitutional provision defining marriage:

1. Federal district judge Bernard Friedman ruled that the Michigan constitutional provision doesn’t survive rational-basis review. As I’ve made clear, I don’t think that the Supreme Court’s ruling in Windsor against the federal Defense of Marriage Act augurs well for state marriage laws. That said, any judge who holds that marriage laws don’t survive rational-basis review isn’t properly applying that very deferential standard. (In this regard, I’ll note that the First Circuit panel that struck down DOMA found it a simple matter (see page 14 of opinion) to determine that DOMA would survive conventional rational-basis review.) As Prop 8 proponents explained in their Ninth Circuit brief:

Before the recent movement to redefine marriage to include same-sex relationships, it was commonly understood and acknowledged that the institution of marriage owed its very existence to society’s vital interest in responsible procreation and childrearing.… [I]t is hardly surprising that every appellate court decision, both state and federal, to address the validity of traditional opposite-sex marriage laws under the federal Constitution has upheld them as rationally related to the state’s interest in responsible procreation and child-rearing.

2. Judge Friedman’s lawlessness is equally manifest in his extraordinary refusal to stay his ruling pending appeal. Recall that in January the Supreme Court, without recorded dissent, intervened to block federal district judge Robert J. Shelby’s ruling against Utah’s marriage laws from taking effect. As other federal judges have understood, that action clearly signaled that courts ruling against state marriage laws should stay their rulings pending appeal. Unless Judge Friedman is an utter idiot (and I have no reason to think he is), he should have known that his ruling would be stayed by a higher court. (The Sixth Circuit issued a temporary stay the next day and later extended that stay for the entirety of the appeal.) Yet he was happy to unleash the chaos of same-sex couples rushing to marry during the interim.

3. Michigan governor Rick Snyder’s response has been remarkably weak and confused. Despite the fact that the supposed marriages that occurred during the interim are unlawful under the state constitution, Snyder has publicly stated that “we believe those are legal and valid marriages.” To be sure, he has also said that the state won’t recognize them as marriages while the stay is pending. But he has gratuitously undermined his defense of the state constitutional provision by mischaracterizing the supposed marriages as “legal and valid.” He also made it very easy for Attorney General Eric Holder to decide that the federal government would recognize those supposed marriages.

4. Meanwhile, Michigan attorney general Bill Schuette, who recently wrote a fine op-ed explaining why it is his duty to defend his state’s marriage laws, has been oddly silent on how he regards the supposed marriages.

Kagan: “The Dumbest Thing I Ever Heard”


That’s how Elena Kagan, at her 2009 confirmation hearing for the position of Solicitor General, characterized, and thereby distanced herself from, her much younger self’s bizarre understanding of how the Establishment Clause ought to operate. But if Justice Kagan was listening to herself at last week’s oral argument in Hobby Lobby, she has some serious new contenders for “the dumbest thing [she] ever heard.”

In trying to argue that the annual $2000 per employee tax that Hobby Lobby would incur if it chose to drop its insurance coverage for employees meant that the HHS mandate did not impose a substantial burden on Hobby Lobby, Kagan asserted: “But this is not the kind of thing that’s going to drive a person out of business. It’s not prohibitive.” (Transcript, 24:19-21.) Earth to Kagan: There is nothing in free-exercise jurisprudence to support the notion that a burden meets the minimum threshold of “substantial” only if it “is going to drive a person out of business” or is “prohibitive.”

Similarly, Kagan nakedly asserted that the overall cost to Hobby Lobby would be substantially the same if it dropped insurance coverage for employees, paid the penalty, and increased wages for employees to compensate them for the dropped coverage: “we are talking about pretty equivalent numbers,” “Maybe it’s a little bit less; maybe it’s a little bit more.” (Transcript, 24:17-19). In his thorough blog post last Friday, law professor Michael McConnell (elaborating the response that Paul Clement provided at oral argument) demolished Kagan’s assertion:

If employers were better off dropping insurance coverage and paying the “tax,” we would expect many large employers to do so. That has not happened—which confirms the common-sense conclusion that dropping insurance coverage is bad for employees and bad for business.

In any event, the speculation that Hobby Lobby could save money by dropping its employees’ health insurance plan, paying the tax, and making it up to them in increased salary disregards three important facts: (1) employer-provided health insurance is tax-exempt to the employee, but the compensatory increase in salary would not be; (2) the provision of insurance is tax-deductible to the employer, but payment of the tax is not; and (3) employer-based group coverage is cheaper and usually better than individual plans on the exchanges. It is almost certainly cheaper for Hobby Lobby to provide health insurance than to pay for its employees to purchase equivalent coverage on the exchanges.

True, some of Hobby Lobby’s employees might be eligible for subsidies, which in theory might lower its costs. But those subsidies depend on information an employer does not have – family size and income – and employers cannot pay different amounts to workers based on these factors. To make all of its employees whole, Hobby Lobby would have to assume none will receive subsidies.

In short, if Hobby Lobby drops insurance, it would not simply pay a $2,000 “tax.” Requiring it to cease providing insurance would cause massive disruption to Hobby Lobby’s employees, major uncertainty for its business, and cost millions of dollars in taxes and salaries beyond what it was previously paying just for insurance. It is easy to see how imposing such a choice constitutes a substantial burden—which is likely why the government never raised the issue, and the courts of appeals never considered it.

In fairness to Kagan, I will note that it’s conceivable that she was just posing “devil’s advocate” questions and that she didn’t actually embrace the propositions that she set forth. That’s certainly not how her remarks came across, though.

On the other hand, I will give Kagan credit for seeming to recognize the lack of merit in the Obama administration’s “threshold claim” that for-profit corporations operated in accordance with the religious beliefs of their owners have no religious-liberty rights at all. (See transcript at 51:9-13.)


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