1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.” But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.”

Now that the Supreme Court’s term has ended, there’s plenty of discussion of the short-term political implications of its rulings, as well as the long-term statutory and constitutional impact.  But the Heritage Foundation offers a particularly impressive panel at its annual “Scholars & Scribes Review the Rulings” this Thursday, July 11, at 11:00 a.m. The two-panel event will feature frequent Supreme Court advocates Chuck Cooper, Tom Goldstein, and Stephanos Bibas as well as journalists Jess Bravin, Adam Liptak, and David Savage. Heritage legal scholars John Malcolm and James Swanson will moderate.

Click here to RSVP or watch it live.

There’s a good discussion here by an employment-law expert of the Supreme Court’s decision in Fisher v. University of Texas and the issue of employment discrimination.  The bottom line:  “the law simply abhors preferences, quotas and hiring less-qualified individuals. There is no real ‘affirmative action’ (as that term is commonly known) under the law for hiring, or promotions. Always remember — discrimination of any form is discrimination – in favor of or against any one group.” 

That’s exactly right. Many employers seem to think that because universities are (barely) allowed to weigh race in pursuit of “diversity” companies are, too. Not so. See also my EEOC testimony on this from a few years back.

1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence. But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight.

2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.”

1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. (See This Day for February 14, 1992, for the rest of the story.)  

The Washington Post has a story today about a poll it conducted with ABC News that found the public disapproving of the Supreme Court’s decision in Shelby County v. Holder by a margin of 51 to 33 percent.  The question asked was: ”Overall, do you approve or disapprove of the U.S. Supreme Court’�’s decision striking down a key part of the federal law overseeing voting rights for minorities?” But what if the public had been asked, “Overall, do you approve or disapprove of the U.S. Supreme Court’s decision that all states should be treated equally under federal law overseeing voting rights for minorities?”

1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document? Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication”. Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.

The Obama administration’s announcement yesterday of a one-year delay in the implementation of Obamacare’s employer mandate shows that even the White House sees that the wheels are coming off the Obamacare bus, as my Ethics and Public Policy Center colleague Yuval Levin discusses in this extensive Corner post. But that doesn’t mean that the bus has stopped crashing into things, and it especially doesn’t mean that the implementation of the HHS contraceptive mandate is being delayed. Here’s an e-mail from the Becket Fund lawyers that explains the details:

A lot of folks have been wondering publicly, e.g. Prof. Friedman, about whether yesterday’s announcement from Treasury that enforcement of the employer mandate would be delayed in some respects until 2015 creates a ripeness issue for the legal challenges to the HHS preventive services mandate. These questions are based on a lack of a thorough understanding of Treasury’s announcement and the many statutory provisions involved (which is understandable, given the complexity of the issues).

We’ve dug deeply into the substance of Treasury’s announcement, and we’re confident that it doesn’t create any ripeness issues with the HHS lawsuits-and we doubt DOJ is even contemplating making that argument.

All Treasury announced was that it would suspend certain reporting requirements in IRC 6055 and 6056, and the “shared responsibility payments” in IRC 4980H that are calculated based on the IRC 6055 & 6056 filings. These shared responsibility payments in IRC 4980H are primarily intended to apply to businesses that drop all employee health insurance altogether, which would require their employees to go onto the public exchanges.

By contrast, all of the businesses challenging the preventive services mandate already offer health insurance that complies in all respects with the ACA, except for the HHS preventive services mandate. Thus, the delay in the reporting requirements and shared responsibility payments in IRC 4980H will not affect their lawsuits. They still face the HHS preventive services mandate (which is in 42 USC 300gg-13, and which the Treasury announcement does not mention) and if they do not comply with it, they still face the massive $100/day/employee excise taxes imposed by IRC 4980D, which is not mentioned by the Treasury announcement and which is governed by a completely different set of reporting requirements (in Treas. Reg. 54.6011-2).

Treasury has promised further guidance within the week, and it’s always possible that it will decide to delay the IRC 4980D excise tax penalties, too. But even then, the government would have a difficult time arguing that the for-profit cases are not ripe, because – as DOJ has repeatedly pointed out when explaining why the AIA does not bar these suits – the HHS mandate in 42 USC 300gg-13 is enforceable not just by the IRS but also by HHS, the Department of Labor, private citizens and (in some cases) the fifty states.

Thus, this situation is very different from the ripeness problems faced in the religious non-profit lawsuits. There, the administration delayed enforcement of the HHS mandate *and* proposed changes to the HHS regulations issued under 42 USC 300gg-13 as it would apply to religious non-profits (this is what was finalized on Friday). So, during the safe harbor, arguably the courts had no firm idea what the ultimate rule would even look like, and many reasoned from this that the lawsuits were not ripe.

Here, by contrast: (1) as to for-profits, the HHS preventive services mandate is final, and the administration has proposed no changes to it (in fact, on Friday, the administration reiterated what it’s always said, which is that for-profit businesses are going to get no accommodation whatsoever); and (2) as to for-profits, the key penalty (the $100/employee/day fine) has not been delayed. Thus, there is no ripeness problem, and the business lawsuits will proceed.

We’ve issued a statement on the issue that provides additional detail.

I explained in this post why I believe that Walter Olson’s tweet that attacked me for putting the word marry (for a same-sex couple) in quotation marks was unfair.

Olson somehow sees fit to reply by providing an insipid misrepresentation of my position in the title of his post: “Whelan: I’ll use scare quotes around ‘marry’ whenever I feel like it.” He remarks, in seeming complaint, that I have “written a whole blog post on the topic”—as though there is some greater virtue in the concise vapidity of his snarky tweet. Rather than address (or even present) the supporting arguments I make, he thinks it meaningful to posit that other supporters of traditional marriage, in not using quotation marks around marry, “are more concerned not to give offense.” (Non-sequitur alert: It doesn’t follow from that proposition that I desire to give offense.) And when his post predictably generates nasty epithets directed at me from his readers, he professes that “the point of [his] post was to set a better standard of civility”!

I would submit that Olson would have set a “better standard of civility” if, instead of resorting to a cheap headline distortion, he had actually engaged my argument.

Justice Kennedy recently developed and distributed his own list of selected readings for young people, pompously titled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty.” Without peeking, see if you can guess which of the following is not on his list:

Pericles, Funeral Oration (431 B.C.)

Magna Carta (Articles 39 and 40) (1215)

William Shakespeare, Merchant of Venice (Portia’s speech) (1596-98)

Thomas Jefferson, The Declaration of Independence (1776)

Preamble, The Constitution of the United States (1787)

Abraham Lincoln, The Gettysburg Address (1863)

Abraham Lincoln, Second Inaugural Address (1865)

Winston Churchill, We Shall Fight on the Beaches (1940)

Martin Luther King, Jr., I Have a Dream (1963)

Lawrence v. Texas (2003)

Well, I’m told that it’s temporarily very complicated to hide things below the fold, so I have to provide the answer here: Yes, I tricked you. All of them are on the list. The foolish prating knave (to borrow a phrase from Shakespeare) has had the gall to place his opinion in Lawrence v. Texas in the company of these greats.

In January Governor Brownback delivered his annual State of the State Address and called for an end to the state’s current method for selecting judges, the Missouri Plan. The state legislature took him up on the invitation and adopted a federal style of selection for court of appeals appointments. It was a great victory for those of us who are tired of watching the Missouri Plan facilitate capture of state supreme courts across the country.  

Now that the new process is kicking into gear, Missouri Plan advocates are throwing a conniption fit over the fact that Governor Brownback won’t publicly disclose the names of applicants for judicial vacancies.

Of all of the policy objections once could raise concerning the federal style of selection, this one strikes me as probably the silliest. And it seems especially silly coming from activists who prefer a method of selection (the Missouri Plan) that allows a handful of politically unaccountable lawyers to pick judges in secret.  

The new process being used for Kansas Court of Appeals appointments mirrors the advice-and-consent process set forth in the U.S. Constitution. I don’t recall any major advocacy organizations, in Kansas or elsewhere, calling on President Obama to make the names of his judicial applicants public. Similarly, I must be missing the Sturm und Drang resulting from the ABA’s failure to release their vetting materials for each potential nominee. To the contrary, it seems to me that virtually everyone in the legal community — on the right and the left — agrees that the confidentiality associated with the front end of the federal process is an asset rather than a liability.  

According to the American Bar Association’s Standing Committee on the Federal Judiciary:

The preservation of confidentiality is particularly critical with respect to the identity of individuals whom the President is considering nominating and whose names are provided to the Committee by the White House or the Department of Justice. . . . The Committee adheres to principles of nondisclosure and strict confidentiality because the nomination process is a presidential function, and the President should be able to obtain a confidential assessment of the professional qualifications of prospective nominees. Moreover, prospective nominees not ultimately nominated should be spared of any embarrassment that might result from disclosure of the evaluation.

Apparently none of that occurred to these Missouri Plan advocates, who seem perfectly at ease with the prospect that applicants might be embarrassed, lose clients, or face adverse employment decisions as a result of pursuing government service.  

The Soros-backed Justice at Stake and a partner organization named the “Institute for the Advancement of the American Legal System” are doing their best to promote all of the inane talking points being produced by Brownback’s critics, a task that probably has them breathless given the pace of the inanity.  

My favorite entry is by Liz Seaton, who, without a bit of irony, asserts that “if the governor doesn’t invoke transparency until he has picked a nominee, it would mean a huge step backward for fair courts in Kansas.” Got that? Huge. Second favorite by Malia Reddick: ”By supreme court rule, the nominating commission had made public the names of judicial applicants to encourage citizen scrutiny and input.”

Right.  Who can forget all that citizen scrutiny and input . . . which went into a circular file managed by whichever local personal-injury attorney ran things at the time. One could easily rewrite the sentence to say “King George made public his policy of imposing taxes upon his colonial subjects without their consent, to encourage scrutiny and input.” 

Jokes aside, the refusal to establish an independent judiciary was one of the complaints leveled against King George in the Declaration of Independence. And when seeking to establish such a branch in the new Republic, Alexander Hamilton argued in Federalist 76 that:

The sole and undivided responsibility of one man will naturally beget a livelier sense of duty and a more exact regard to reputation. He will, on this account, feel himself under stronger obligations, and more interested to investigate with care the qualities requisite to the stations to be filled, and to prefer with impartiality the persons who may have the fairest pretensions to them.

And through their role in the confirmation process — a genuinely transparent process — Kansas legislators will be able to provide what Hamilton described as “an excellent check upon a spirit of favoritism” in the chief executive, tending “greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”

Governor Brownback has the distinction of having served in the U.S. Senate, participating directly in that process Hamilton described, and at one time playing a key role in scuttling one of President Bush’s Supreme Court nominees. He knows a thing or two about accountability and transparency in judicial selection, and I wouldn’t expect him to succumb to this half-witted intimidation campaign. 

In the weekend edition of the Wall Street Journal, Harvard law professor Mark Tushnet had a very smart essay raising the central question about the extent to which we are governed, on our most important political issues, by an unelected, unaccountable judiciary.  That question is, why do we put up with it?  No one can seriously say that what the Supreme Court did in the Windsor case last week was constitutional law.  It was pure politics, tarted up as constitutional law.  And if the people are not to govern themselves on political questions, then we no longer have a republic.  What then to do about it?  Tushnet has a suggestion:

I’m fond of a Canadian innovation that Judge Robert Bork also found interesting: Let the justices strike down statutes they think are unconstitutional and give their explanations. Then let Congress respond. If a congressional majority agrees with the Court, the decision stands. But if a majority thinks that the Court got it wrong, Congress can override the decision.

I was never that enamored of Bork’s suggestion when he made it years ago.  But it looks better and better.

Meanwhile, over at Public Discourse, political scientist Carson Holloway reminds us of the response Abraham Lincoln gave to the Dred Scott decision, which was to treat it as nonbinding on everyone other than the parties to the case.  Lincoln, no mean lawyer himself and someone who practically worshiped the rule of law, thought it was crazy to react to an obviously novel and wrongheaded ruling, masquerading as constitutional law, as though it settled the great controversy it purported to settle.

The more you look at Windsor, the more it looks like the Dred Scott case, right down to the question it naturally raises of what will come next.  It is, however, a magnificent opportunity for a conservative politician to rise to the status of a real statesman by challenging it, by not accepting the proposition that the Supreme Court “settles” great issues once and for all with an absurd diktat like Windsor.  At a moment when pollster Scott Rasmussen reports that public approval of the Court has fallen to an all-time low, the opportunity could not be riper.  All one has to do is to break free of the spellbinding power of the myth of judicial supremacy.

So, who is willing to be our Abe Lincoln in challenging our Dred Scott ruling?  Paul Ryan?  Chris Christie?  Scott Walker?  Ted Cruz?  Mike Lee?  Marco Rubio?  Anyone?  So far I hear only crickets.

From beginning to end, I doubt that there has ever been a federal judicial proceeding more wrought with irregularities and lawlessness than the anti-Prop 8 case. The farce’s finishing touches are therefore all too fitting.

On the day that the Supreme Court issued its ruling in the Prop 8 case, the Ninth Circuit properly gave notice that the Supreme Court’s mandate would not issue for at least twenty-five days (the period during which a petition for rehearing could be filed). The issuance of the Supreme Court’s mandate is what places the matter back in the Ninth Circuit’s jurisdiction.

Notwithstanding that the mandate had not issued, the Ninth Circuit panel (led by Stephen Reinhardt) on Friday afternoon entered an order immediately dissolving the stay that it had placed on then-judge Vaughn Walker’s district-court order, which had permanently enjoined California officials from enforcing Prop 8.

Further, within about 40 minutes of the time that the order dissolving the stay was entered, California attorney general Kamala Harris was officiating at the “marriage” of two of the plaintiffs. Hmmm, did the Ninth Circuit orchestrate the final act of the farce with them by giving them a heads-up that (I am reliably informed) it did not provide to Prop 8 proponents? Or is the otherwise sclerotic government of California somehow remarkably efficient when it wants to be?

In his weekend column on NRO, the brilliant and inimitable Mark Steyn reflects on the DOMA ruling as part of his broader lament on what our supposed “constitutional republic of limited government by citizen representatives” has degenerated into. An excerpt:

Having assumed the power to redefine a societal institution that predates the United States by thousands of years, Emperor Tony the All-Wise had the responsibility at least to work up the semblance of a legal argument. Instead, he struck down the Defense of Marriage Act on the grounds that those responsible for it were motivated by an “improper animus” against a “politically unpopular group” they wished to “disparage,” “demean,” and “humiliate” as “unworthy.” What stump-toothed knuckle-dragging inbred swamp-dwellers from which hellish Bible Belt redoubt would do such a thing? Well, fortunately, we have their names on the record: The DOMA legislators who were driven by their need to “harm” gay people include notorious homophobe Democrats Chuck Schumer, Pat Leahy, Harry Reid, Joe Biden, and the virulent anti-gay hater who signed it into law, Bill Clinton.

It’s good to have President Clinton’s animus against gays finally exposed by Anthony Kennedy. There’s a famous photograph of him taken round the time he signed DOMA, at a big fundraiser wearing that black-tie-and-wing-collar combo that always made him look like the maître d’ at a 19th-century bordello. He’s receiving greetings from celebrity couple Ellen DeGeneres and Anne Heche, who’d come out as gay the week before and, in the first flush of romance, can’t keep their hands off each other even with President Happy Pants trying to get a piece of the action. For a man motivated only by a hateful need to harm gays, he’s doing a grand job of covering it up, looking like the guy who decided to splash out for the two-girl special on the last night of the sales convention. Nevertheless, reacting to the Supreme Court’s decision, President Clinton professed himself delighted to have been struck down as a homophobe.

A reader calls to my attention a tweet by libertarian legal commentator (and same-sex marriage proponent) Walter Olson that takes offense at my putting the word marry in quotation marks in a passage from point 3 of a recent post. Olson tweets:

Stay classy, @EdWhelanNRO: still using scare quotes around “marry”

Let me briefly explain why I think that Olson’s complaint is unfair and misguided (even apart from the fact that the particular passage he objects to involves competing state laws on whether a same-sex couple should in fact be regarded as “married” and thus would seem particularly to justify the quotation marks).

Olson and I have a substantive disagreement over what marriage, properly understood, is. Consistent with the understanding that nearly all humans have had throughout nearly all of human history, I regard male-female complementarity as intrinsic to marriage.

In setting forth my position, I don’t see how etiquette and civility require that I adopt Olson’s preferred usage. I don’t think that the word marriage can properly apply to a relationship between two persons of the same sex, just as I don’t think that a circle should be called a round square.* I understand why Olson, given his commitments, finds my substantive position deeply objectionable, but I don’t see how he can fairly have any separate objection to the manner in which I have stated my position.

But, Olson might be saying (I gather this is what he means by “still using”), the fact that the federal government and a number of states now recognize same-sex marriages somehow compels me to conform to a politically correct usage. If that’s what Olson means, I find it very odd that a libertarian would invoke government authority as the arbiter of what words are acceptable.

Lincoln famously asked how many legs a dog has if you count a tail as a leg. I don’t think that the answer is five, even if the government or most people were to say it is.

* Contrary to what Olson’s tweet would suggest, I have routinely used the term same-sex marriage (and, in the same-sex context, the term marry) without quotation marks. I have done so in part because I recognize that some readers may mistakenly believe that placing the term in quotation marks is intended to insult (rather than to signal a core substantive disagreement). I may need to reconsider that practice, as it tends to obscure that the term is best understood to be an oxymoron and it instead seems to bespeak a reality that I think is false. (If “round squares” had received as much favorable attention as same-sex marriage, I’d guess that many or most Americans wouldn’t understand that squares can’t be round.)

Today at 6 p.m., I’ll be joining Hadley Arkes and Carrie Severino in a discussion of last week’s marriage rulings. The event will take place at the Catholic Information Center and will be carried live on C-SPAN. More info here.

1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy races to the Senate floor to launch a viciously false attack on Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….

The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination.

More good news: On remand from the Tenth Circuit, the district judge who previously denied Hobby Lobby’s motion for a preliminary injunction has granted Hobby Lobby a TRO. The judge determined that Hobby Lobby had “made a sufficient showing as to the remaining elements necessary to the issuance of a temporary restraining order (weighing of the relative harms and whether injunctive relief is in the public interest).” As there are the same remaining elements necessary to the issuance of a preliminary injunction, this order bodes very well for the preliminary-injunction hearing, which is scheduled for July 19.