Bench Memos

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McHugh Confirmed to Tenth Circuit


This morning the Senate unanimously confirmed Utah Appeals Court Judge Carolyn McHugh to a seat on the U.S. Court of Appeals for the Tenth Circuit.  Senator Hatch, who actively supported the nomination, comments on her confirmation here.

For a list of all of the judicial nominees confirmed in the 113th Congress (2013-14), see here.

West Virginia AG Gets National Bipartisan Support for Opposing Corrupt Patronage System


When Patrick Morrisey became attorney general of West Virginia in 2013, he was the first Republican to hold that office since 1933. A lot of Democrats and trial lawyers who had benefited from the gravy train established by Morrisey’s ​predecessors suddenly found themselves without a patron. So instead of finding honest work, they launched a mudslinging campaign to discredit and undermine Morrisey’s office.  

Their latest plan is to pass legislation designed to cripple Morrisey’s office by disqualifying him from an enormous number of cases and basically prohibiting him from getting involved in litigation that challenges overreach by federal agencies like the EPA. Morrisey’s opponents have apparently concluded that if he won’t go along in treating the AGs office as the servant of a corrupt patronage system, then the best course is to gut his office and distribute its authority to more reliable lawyers.

Fortunately, attorneys general from both parties are coming to Morrisey’s defense against this offensive and unprecedented legislation. According to a story in the Parkersburg News and Sentinel:

In the continuing debate over HB 4490, the National Association of Attorneys General, along with a bipartisan group of attorneys general representing 36 states, districts and territories, sent a letter to the leadership of the West Virginia Legislature Friday outlining its concerns on the bill. . . .

“We are not aware of any statute that imposes such a broadly sweeping prohibition on an attorney general’s office-at the state or federal levels,” the attorneys general wrote to leaders of the West Virginia Senate and House of Delegates. “Nor are we aware of any state’s high court – which traditionally regulates the practice of law – having imposed such a principle of disqualification either through rules of practice or judicial opinion. The absence of such a prohibition is unsurprising, as it would plainly discourage experienced attorneys from seeking the office of attorney general.


New York Times v. Sullivan: Fifty Years of a Press Free from Responsibility


On March 9, 1964, the United States Supreme Court decided New York Times v. Sullivan, a case that radically expanded first-amendment protection for the press. Naturally, the fiftieth anniversary of this decision is being ecstatically celebrated throughout all media and legal academia.

However, for those committed to the text and history of the Constitution, and a judiciary tethered to them, there is nothing at all to celebrate. Even by the imperial-judiciary standards of the Warren Court, this case stands out as something of a classic effusion in that Court’s project of remaking American society to conform with its far-Left preferences. There is no question that the case is a watershed: Before New York Times v. Sullivan, the first amendment protected a free press that was responsible in law for its errors; after and because of this case, the press has anything-goes immunity from almost any mistakes, no matter how damaging. As a policy matter, this may or may not be a prudent development. Constitutionally, the decision is an infamous failure and a disgrace to the judicial role.

The case arose out of the early period of the civil-rights struggle. Sullivan was an elected official in Montgomery, Ala. He brought a libel action against the New York Times and four individuals because of an advertisement that appeared in that newspaper criticizing in part police action against civil-rights demonstrators. Sullivan won a jury verdict of $500,000, which was later upheld by the Supreme Court of Alabama.

The U.S. Supreme Court unanimously reversed the award and imported into our constitutional law an entirely new regime under the first amendment, relying not on James Madison but expressly invoking the very different views of John Stuart Mill. In an opinion written by Justice William Brennan Jr., who was the heart and soul of the Warren Court’s constitutional revolution, the Court emoted that “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks of government and public officials.”

And then the Court imposed an extraconstitutional standard based on its own libertarian reading of the First Amendment: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Thus was the established balance between responsible speech and reputation — a Madisonian balance — utterly subverted. The Founders had carefully crafted constitutionally protected speech rights against the backdrop of state libel laws. For nearly two centuries, this arrangement has proved perfectly workable; no one ever claimed that the country did not enjoy a free press. What Justice Brennan did was recklessly free the press from responsibility for its mistakes. In the Warren Court way, liberty became license.

Of course, Justice Brennan’s actual-malice standard looks like a model of interpretive discipline when compared to the antihistorical, no-law-means-no-law first-amendment literalism of Justice Hugo Black in his concurring opinion. Though he was perhaps the best legal mind on the Court at that time, Justice Black in this case descended to adolescent literalism and would have wiped out all libel laws under his slipshod approach.

To be fair, within its own policy-driven, libertarian universe, the majority opinion in New York Times v. Sullivan has at least a modicum of coherence. If one elevates robust debate — which may contain errors that damage reputations — through a free press about public officials and affairs above any other values, then the actual-malice standard is logical if nothing else. But even this limit was abandoned when the actual-malice requirement was mindlessly extended to all public figures within the next few years. Along with constitutional text and history, basic reason had been discarded.

Justice Antonin Scalia has denounced New York Times v. Sullivan as an offense against original understanding and noted in public remarks that the decision should be overturned and libel law returned exclusively to the states. That would be the only proper constitutional approach to the issue and something really worth celebrating.

— Gregory J. Sullivan is a lawyer who practices in New Jersey.

This Day in Liberal Judicial Activism—March 9


1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan.

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas).

Corporate Personhood: For Me But Not for Thee?


On Thursday, a Fourth Circuit panel unanimously concluded that Title VI of the Civil Rights Act of 1964 allows minority-owned corporations to challenge racial discrimination in contracting on behalf of their owners. The court rejected the corporate defendants’ spurious argument—asserted by the government in some recent cases—that because the plaintiff is a corporation, it cannot be a “person” that is protected by federal laws.

This is an increasingly popular argument on the left, sometimes articulated as the notion that because a corporation can’t pray, therefore it can’t have religious rights, and because a corporation can’t vote, it doesn’t have freedom of speech. The solicitor general has made this argument explicitly, arguing in Hobby Lobby and Conestoga Wood Specialties that corporations don’t have religious freedoms under federal law in the first instance, and even if they do, they lose those freedoms if they engage in for-profit activities (as if real religious exercise stops once synagogue, church, or Friday prayers are over).

But as Fourth Circuit judge Barbara Keenan (an Obama appointee) pointed out in a footnote, federal statute generally defines “person” to include corporations, and Title VI does not contain its own definition to override the Dictionary Act. The Fourth Circuit adopted a line of cases from the Ninth Circuit saying that a corporate entity can assert the racial identity of its owners in an anti-discrimination claim. All that the plaintiff corporation had to show was that it was minority-owned and certified to be so.

This conclusion makes sense: A corporation may not have an independent racial identity, but its shareholders and managers do. The law does not ask courts to pretend that corporations are robots because corporations are owned and operated by people

Judge Keenan’s opinion also shows what is at stake in affording such protections to the corporate form. Although anticorporate special interests typically don’t want to admit how broadly their argument would sweep, if the Fourth Circuit had come to the opposite conclusion, antidiscrimination law would not extend to minority-owned businesses organized as corporations. This would effectively force minority business owners either to abandon financial protections available to all other businesses or abandon legal protections against discrimination. That sort of Hobson’s choice should never be imposed on any constitutionally protected class, whether racial, religious, or otherwise.


This Day in Liberal Judicial Activism—March 8


1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.

Can a For-Profit Corporation Have a Racial Identity?


Yes, says a unanimous Fourth Circuit panel in a ruling (written by an Obama appointee) yesterday: “We hold that a corporation can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.” Among other things, the panel cites seven other circuit courts that “have concluded that corporations have standing to assert race discrimination claims,” and it quotes with approval the observation by one of those courts that it is

hard to believe that the Supreme Court would deny standing to the corporation because it “has no racial identity and cannot be the direct target” of the discrimination, while at the same time it would be obliged to deny standing to the stockholders on the sound ground that the injury was suffered by the corporation and not by them.

If that “hard to believe” proposition sounds familiar, that’s because the Obama administration is arguing in the HHS mandate cases that closely held, for-profit corporations aren’t persons capable of exercising religion under RFRA and that the corporate owners also don’t have any RFRA claims because the HHS mandate applies directly only against the corporations.

Will those who (wrongly) think that for-profit corporations are incapable of exercising religion for purposes of RFRA object as vigorously to the concept that for-profit corporations can have a racial identity for purposes of Title VI? If not, why not?

Heritage Event on State AGs’ Failure to Defend Marriage Laws


Next Friday, March 14, the Heritage Foundation will be hosting an event titled “Dereliction of Duty: State Attorneys General Failing to Defend Marriage Laws in Court.” Former Virginia attorney general Ken Cuccinelli will provide the keynote address, and Carrie Severino and I will then offer our own comments. More information on the noontime event is available here.  

Georgia Bar Symposium


Next Thursday, March 13, I’ll be at the State Bar of Georgia’s Constitutional Symposium to join law professors Jack Balkin and Eugene Volokh in a panel session titled “Expanding the Constitutional Conversation: A Discussion with Leading Legal Bloggers.” Robert Schapiro, dean of Emory University’s law school, is moderating the panel.

The symposium, which offers CLE credit, features a long list of judges, law professors, and other distinguished speakers, topped off by Justice Antonin Scalia and historian David McCullough. Unfortunately for anyone who is just learning about it and interested in attending, I gather that it’s sold out.

This Day in Liberal Judicial Activism—March 7


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

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

AAG Nominee Debo Adegbile’s Defeat—Part 2


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

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

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

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

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

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

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

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

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

AAG Nominee Debo Adegbile’s Defeat—Part 1


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

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

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

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

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

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

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

This Day in Liberal Judicial Activism—March 6


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

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

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

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

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

This Day in Liberal Judicial Activism—March 5


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

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

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

This Day in Liberal Judicial Activism—March 1


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

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

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

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

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

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

One Lesson from Arizona


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

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

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

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

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

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

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

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

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

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

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

North Carolina Events


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

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



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

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

Thug’s Veto Prevails in Ninth Circuit


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

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

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

This Day in Liberal Judicial Activism—February 28


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

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


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