Bench Memos

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Utility Air Regulatory Group v. EPA: Separation of Powers in the Balance


This morning the Supreme Court issued an opinion sharply limiting the EPA’s discretion in Utility Air Regulatory Group v. EPA (which was consolidated with Chamber of Commerce et al. v. EPA and several other cases), a case about the EPA’s authority to unilaterally rewrite pollutant thresholds written directly into the Clean Air Act (CAA). When EPA decided to move forward with regulating stationary sources of “greenhouse gas” emissions (GHGs) such as carbon dioxide, which occurs naturally in colossal quantities, it ran headlong into hard-coded numeric thresholds for pollutants in the text of the CAA. So EPA issued a regulation that just changed the thresholds.

In a split opinion, the Court concluded that EPA exceeded its statutory authority by changing the statutory thresholds, but that it could still treat GHGs as pollutants and require control technologies for certain sources of GHGs.

Since the case was one of the most economically significant this term, numerous amici filed briefs. The Judicial Education Project filed an amicus brief arguing that the government’s claim that it was just following orders from the Court’s decision in Massachusetts v. EPA (2007) distorted the prior holding, which was about administrative procedure. Instead, the brief argued, EPA was vastly overreading the scope of the Court’s holding in Massachusetts, and was using Massachusetts to conceal a host of separation-of-powers problems generated by its position.

After oral argument, I correctly predicted that the justices seemed divided about the best way to decide the case. Justice Scalia wrote the majority opinion for the Court, with Justices Roberts and Kennedy joining Scalia’s opinion in full. Justices Thomas and Alito concurred in part and dissented in part. Justice Breyer wrote a partial concurrence/dissent and concurred with part of Justice Scalia’s opinion, with the liberal justices following Justice Breyer. 

The majority opinion again shows why Justice Scalia is the Court’s foremost textual analyst. The first part of the challenge was to regulations issued under a program that the EPA uses to prevent significant deterioration in air quality. This program (called the “PSD” program) required any source subject to the program to get a permit if it would emit more than 250 tons of carbon dioxide per year. As I mentioned before, EPA had claimed that under Massachusetts, its hands were tied because it was affirmatively required to regulate GHGs under this program, and therefore had to ignore the 250-ton threshold.

The Court put that argument to rest with a sensitive, detailed evaluation of the textual evidence. In particular, Justice Scalia rebuked EPA for the somewhat disingenuous claim that it had to ignore the context of the statute and apply the same definition to all parts of the Clean Air Act (all citations omitted):

The Act-wide definition says that an air pollutant is “any air pollution agent or combination of such agents, including any physical, chemical, biological, [or] radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” In Massachusetts, the Court held that the Act-wide definition includes greenhouse gases because it is all-encompassing; it “embraces all airborne compounds of whatever stripe.” But where the term “air pollutant” appears in the Act’s operative provisions, EPA has routinely given it a narrower, context-appropriate meaning.

That is certainly true of the provisions that require PSD and Title V permitting for major emitters of “any air pollutant.” Since 1978, EPA’s regulations have interpreted “air pollutant” in the PSD permitting trigger as limited to regulated air pollutants—a class much narrower than Massachusetts’ “all airborne compounds of whatever stripe[.]” And since 1993 EPA has informally taken the same position with regard to the Title V permitting trigger, a position the Agency ultimately incorporated into some of the regulations at issue here. Those interpretations were appropriate: It is plain as day that the Act does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances. It takes some cheek for EPA to insist that it cannot possibly give “air pollutant” a reasonable, context-appropriate meaning in the PSD and Title V contexts when it has been doing precisely that for decades.

Of Massachusetts, the Court said:

Massachusetts did not invalidate all these longstanding constructions. That case did not hold that EPA must always regulate greenhouse gases as an “air pollutant” everywhere that term appears in the statute, but only that EPA must “ground its reasons for action or inaction in the statute,” rather than on “reasoning divorced from the statutory text[.]” EPA’s inaction with regard to Title II was not sufficiently grounded in the statute, the Court said, in part because nothing in the Act suggested that regulating greenhouse gases under that Title would conflict with the statutory design. Title II would not compel EPA to regulate in any way that would be “extreme,” “counterintuitive,” or contrary to “‘common sense.’” At most, it would require EPA to take the modest step of adding greenhouse-gas standards to the roster of new motor-vehicle emission regulations.

Justice Scalia even quoted the JEP amicus brief on page 14 of his opinion:

Keep reading this post . . .

This Day in Liberal Judicial Activism—June 23


2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan.

The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.

It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are. 


This Day in Liberal Judicial Activism—June 21


1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”

Legislative History as “Statist Tool of Interpretation”


From the Volokh Conspiracy’s Will Baude, I’ve learned of this Yale Law Journal article by Yale law professor Nicholas R. Parrillo that explores the question “how legislative history came to be such a common tool of interpretation.” From the article’s abstract, here is Parrillo’s interesting answer (emphasis added):

The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

I look forward to reading Parrillo’s (very long) article and may have more comments on it after I have read it—including, perhaps, on its connections to some of the broader themes in law professor law professor Philip Hamburger’s important new book Is Administrative Law Unlawful?.

This Day in Liberal Judicial Activism—June 20


2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”


Pamela Harris: A Vote for the Obama Administration


Over the last few days, Carrie Severino and I have been discussing the nomination of Pamela Harris, a former Obama political appointee, as a judge for the Fourth Circuit. (Here are links to Parts 12, 3, 4, and 5 of this series.) As it turns out, Harris’s judicial philosophy typifies everything that the public has come to expect from radical judges.

For instance, Harris has admitted that she thinks the Warren Court — which more or less defines judicial activism in American history – was too conservative

As Carrie noted before, Harris also explicitly endorses the idea that the Constitution is always evolving (although only in a leftward direction), which explains why she can say with a straight face that our 200-year-old Constitution is a “progressive” document that, miraculously, supports her modern liberal political agenda. She denies that the Constitution has a fixed meaning that can be known by looking at its text and history, and instead must be interpreted by exegeting modern social movements.

To see how radical Harris really is, let’s consider a case from the current Supreme Court term. At an event at Georgetown University Law Center in 2013, Harris commented on the use of treaties to authorize federal criminal statutes against local conduct in Bond v. United Stateswhich involved a prosecution for a simple assault under a federal chemical-weapons treaty and its implementing statute:

I did think this argument that what will likely appeal to the Court, this idea that well, whatever the Court said in Missouri v. Holland, just as a factual matter, the kinds of things now covered by treaties has really changed since then. That’s the kind of argument that I always find appealing because right, like the Constitution evolves, it has to keep pace with changes in the factual predicates, and yes, our readings of constitutional provisions ought to change and evolve in light of circumstances on the ground like that.

Setting aside for a moment the transparent radicalism of this view, consider how brutally wrong she was. The Supreme Court voted 9–0 for the defendant, who was challenging the use of the treaty for the criminal prosecution. Not a single justice wrote or signed an opinion suggesting that the Constitution’s treaty power had changed. Indeed, the most liberal justices all signed onto Justice Roberts’ opinion, which (for all its other faults) recognized the important role that federalism plays in the distribution of powers between states and the federal government.

Think about that for a moment: Harris’s view was more radical than the combined forces of Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan.

Harris’s interest in transforming the Constitution can sometimes be humorous. During a 2009 panel, after reshaping the Constitution into her own liberal likeness, she looked upon her creation and declared it good:

And I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution, it’s pretty close to where I am. Because I think the Constitution is a profoundly progressive document. . . . I think it’s a great document. And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book, it is something we can all be really proud of. That’s a separate question from whether social movements should concentrate all of their energies on the courts and on the Constitution—as opposed to political change through other avenues. And I think almost everybody would agree that social movements are well-advised not to limit themselves to the courts, not to only think about constitutional law, but also to be pursuing democratic processes, and looking for change, and trying to improve the situation that we have. But, you know, deep down, I’m just a huge fan of the Constitution.

Gee, I’m a huge fan of the Constitution too! That’s because of what the Constitution is, not because of how far it can be twisted to my fancy. But this point — that the Constitution is only good if it means what Harris wants — is really important to understanding her chilling strategic vision.

Remember that she thinks judges should interpret the Constitution as seen through social movements of various stripes. Laudably, Harris sees some role for, you know, democracy. But in this formulation, that nod seems somewhat circular: The courts should interpret the Constitution in accordance with social movements; social movements should try to get the courts to change the Constitution. In reality, this sounds like an attempt to bootstrap the Constitution into the service of Harris’s liberal politics, not interpretation of a legally binding document. Perhaps Harris can clarify. 

As far as judicial philosophy goes, though, Harris’s nomination must give the shivers to red-state Democrats like Mark Pryor, Mark Begich, and Mary Landrieu. By nominating Harris, the administration is forcing these politicians to vote on a radical nominee who not only thinks that previous generations of judicial activism didn’t go far enough, but also that judges should be amateur sociologists. That ideology is obviously designed to give Harris and other judges latitude to rubber-stamp the Obama agenda.

As such, any votes for Harris will be a dead giveaway that these vulnerable Democrats are not serious about opposing Obamacare, the EPA, or any of the other issues on which they claim to oppose him.

“Murphy’s Law”


From the new issue of National Review (available to digital subscribers here), that’s the title of my review of Bruce Allen Murphy’s Scalia: A Court of One. Here are the opening and closing paragraphs of my review:

Anything that can go wrong will go wrong: So goes Murphy’s Law. And so demonstrates another Murphy, Lafayette College professor Bruce Allen Murphy, in his new biography of Supreme Court justice Antonin Scalia (for whom I clerked more than two decades ago).

Murphy sets out to show how Scalia’s political views, religious faith, and personality have influenced his judicial decisions and speeches. But instead of the sophistication and nuance such an undertaking would demand, Murphy delivers a cartoonish and incompetent account.…

Not everything in Murphy’s book is inept or unfair, and there are some chapters, especially on Scalia’s formative years and his career before joining the Court, that are interesting despite Murphy’s heavy-handed intrusions. But Murphy is such an unreliable guide that the reader will have no idea when he can be trusted.

(Links to my full series of posts about Murphy’s book are available here.)

If you don’t already subscribe to National Review (print or digital), you should.

Pamela Harris: Oh, The Constitution It Is A-Changing


This is Part 5 in the series about Pamela Harris, President Obama’s latest appointee to the Fourth Circuit. (Here are Parts 1, 2, 3 and 4.) As I mentioned in post four, Harris is outspoken about her willingness to import a modern political agenda into her interpretation of the law and the Constitution.

Harris’s belief in an ever-changing Constitution goes deep. As part of a 2009 panel, Harris said the following:

So I think we do start at a point of some agreement with originalists, in the importance of text and history. But that said, I also think there very badly needs to be a fuller discussion about where you go after that, or in addition to that. About other valid sources of constitutional meaning, things discussed in the excerpts of the volume like constitutional structure, constitutional precedent, the consequences of constitutional rulings, both on the ground and for continuity of legal discourse, and things like values and norms that are rooted in the Constitution or part of constitutional heritage, but whose meaning may change over time, whose application may change over time in response to changed understandings about what a word like equality really means. That’s the kind of discussion that we’re hoping to promote with this volume.

Harris isn’t content to interpret within the bounds of the Constitution’s text and history and traditional legal methods, which would tell her most of what she needs to know about constitutional structure; she wants judges to look beyond the text—far beyond—to these other “valid sources of constitutional meaning.” That creates a truck-sized hole for Harris to bring her own views into constitutional interpretation.

Not only does Harris identify the Constitution with her own political views, she also thinks that other judges should change their constitutional views based on popular sentiment. Of Justice Kennedy, for instance, she has said that his views on same-sex marriage “should be changing the same way the whole country is changing.” She said elsewhere that “I think the tide of history is going one way” on same-sex marriage, and “I don’t think the justices want to be on the wrong side of that.”

But if Harris’s constitution is just a sword to aid the enactment of popular sentiment, and indeed, at the leading edge of that sentiment, that constitution cannot simultaneously channel that energy into counterbalancing political structures. Harris’s interpretation of the Constitution is so alien, so completely detached from its actual text and history (much less the understanding reflected in the Federalist Papers) that it would set up serious obstacles to Harris’s impartial consideration of constitutional cases.

On the other hand, nobody should be surprised that a nominee who believes the Warren Court was too conservative is not within the mainstream.

Justice Ginsburg Nods?


In her recent remarks to the Second Circuit Judicial Conference, Justice Ginsburg stated that the “question presented” in the HHS mandate cases is: “Can Congress lawfully confine exemptions from contraceptive coverage to churches and nonprofit religion-oriented organizations?” (Pp. 8-9 (emphasis added).) But the HHS mandate, along with its narrow exemption for houses of worship and its (supposed) accommodation for religious nonprofits, is a creation of the regulatory bureaucracy, not of Congress.

The agencies that jointly adopted the HHS mandate were implementing an open-ended statutory provision, see 42 U.S.C. 300gg-13(a)(4). Congress itself did not say anything in the provision about “contraceptive coverage,” much less “confine exemptions from contraceptive coverage to churches and nonprofit religion-oriented organizations.”

Whether anything turns on this elementary distinction is open to debate. (A noteworthy question from Justice Kennedy rested on the distinction.) But if Ginsburg doesn’t understand this basic point, I wonder how many of the finer points of the case have escaped her.

This Day in Liberal Judicial Activism—June 18


1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

Pamela Harris: Constitutional Interpretation for Me, but Not for Thee


As I mentioned before, President Obama nominated Pamela Harris, a former member of the Obama administration, for lifetime tenure as a judge on the Fourth Circuit. (Here are Parts 12, and 3 of this series.) For a judicial nominee, Harris is unusually clear about her willingness to impose her political preferences as her interpretation of the Constitution. She sets out this willingness with crystal clarity in remarks during a couple panels from 2008 and 2009.

Back in 2008, Harris spoke on a panel where she basically admitted that she reads her contemporary political preferences into her view of the Constitution. Speaking on the issue of a “living constitution” on June 14, 2008, Harris said:

I just don’t think that any account of the Constitution that even seems to—even seems to—privilege the Constitution as it was originally ratified, or even what people remember as it was amended particularly during the Reconstruction period, I don’t think it’s consistent with the way most people do—and the way we should—think about the Constitution. Yes, the values, the principles, on some level of generality, are there at the beginning, but they take their meaning—and they should take their meaning—from what comes after. And most particularly, and this is my source of legitimacy, most particularly, from what the People do at these critical junctures—the civil rights movement, the women’s movement, the gay rights movement, when they reconstitute what it is we’re talking about when we talk about American constitutional tradition, when we say words like equality and liberty, when we change what they mean because what the people themselves have done.

I hesitate to comment on this paragraph at all because of how much it speaks for itself, but a few things are worth noting. First, she says the Constitution’s meaning comes not from what the People agreed on when they ratified the Constitution, but “from what comes after.” Second, the primary sources of constitutional “meaning” and “legitimacy” for Harris are social movements for which the Left claims a monopoly, not the actual text or history of the Constitution. Harris’s view of the Constitution, it seems, is not really legal at all; it’s just left-wing political theory as expressed in the onward march of history. For Harris to carry out her responsibilities as a judge, it seems, she would need to filter all constitutional interpretation through what she sees as the dominant “social movements” and then pick a winner.

If constitutional law is just high-level theorizing, though, then what relevance does the text hold? It’s not entirely clear, but Harris gives us some hints. From this quote, it appears that the text of the Constitution includes “values” and “principles” that are present at “some level of generality.” As all lawyers know, manipulating a principle’s level of generality is the simplest way to get the result you are looking for. Harris’s terminology suggests that she thinks such manipulability would be an ordinary part of interpreting the Constitution.

If there were any question about that, look at the last sentence of the above quote. She uses words like “equality” and “liberty” not as if they refer to inalienable rights identified in (say) a Declaration of Independence, but because “we change what they mean.” But who is “we?” 

Based on the context, it seems that “we” is anyone who prevails in some left-wing historical narrative of social movements. That’s not exactly a precise criterion. She continues: “And I just don’t find it satisfying—or even productive—to try to strain for some interpretive methodology that seems to cut those people and their sacrifices out of the constitutional discourse.”

Contextually, Harris seems to be saying that originalists “strain” to cut people and their sacrifices out of the constitutional discourse. But that’s not what originalists do at all, and if she thinks it is, she is completely out of touch with reality. Originalists look for what the Constitution’s text meant at the time it was enacted and then try to apply that meaning faithfully. Harris’s view of the Constitution, by contrast, requires judges to be amateur social anthropologists. Perhaps Harris needs to read more dissents by Justices Scalia and Thomas to find out what originalists do.

Approximately one year later, Harris told another panel:

And I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution, it’s pretty close to where I am. Because I think the Constitution is a profoundly progressive document. I think it’s born of a progressive impulse. I think particularly, as amended in the Reconstruction era, it is committed to principles like equality and liberty and individual dignity, and I’m a profoundly liberal person so we [the Constitution and I] match up pretty well. I make no apologies for that. I think it’s a great document. And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book [Keeping Faith With The Constitution], it is something we can all be really proud of.

Who could disagree that the Reconstruction Amendments are about liberty and the equal protection of the laws? Those words are in the text of the 14th Amendment. But it’s disturbing that Harris can, without a bit of embarrassment, project her own “progressive” and “profoundly liberal” views back into history and declare the Constitution a “profoundly progressive document.”

To be sure, the Constitution marked a bold step into the world of democratic self-governance. But it did so by enacting into law a series of structures, procedures, and constraints that were designed to restrain democracy, and that could only be changed through the amendment process, not through judicial interpretation. Harris’s Constitution, by contrast, could be changed by implication as social movements succeed politically without ever passing a constitutional amendment. Goodness, if that’s how we’re interpreting legal documents nowadays, I have some ideas about how to stop making payments on my mortgage.

Finally, look again at the last sentence of the last quote: “And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book, [the Constitution] is something we can all be really proud of.”

There’s something profoundly sad about a potential federal judge who can only be proud of the Constitution if it’s interpreted how she wants it to be interpreted by people who share her politics. One would hope that as an American, she would be proud of the Constitution simply because it’s hers.

Pamela Harris: The Warren Court Wasn’t Liberal Enough


This is the third post in a series about President Obama’s latest nominee to the U.S. Court of Appeals for the Fourth Circuit, Pamela Harris. (Here are parts 1 and 2.) So far we’ve seen that Harris will be highly prone to “abortion distortion” and believes that judges should view the law and the Constitution through her liberal political views. 

But it’s not just abortion and miscellaneous liberalism that’s troubling about Harris. Here’s what Harris said about criminal procedure at a 2009 panel introducing a book that she had edited: 

I sometimes wonder whether when we think about someone like Chief Justice Warren . . . whether we almost have, by now, a stunted sense of what the legal choices really are, what really is a liberal legal outcome, whether we sometimes almost think circularly: Well, if Chief Justice Warren came out that way, that must be as liberal as it gets, whether we’re reasoning backwards a little bit. . . . And so I worry that sometimes when we look back, particularly at the work of the justices in the 1960s and 1970s, there’s almost an inclination to assume that must be as liberal as it gets. That’s not right! I think that we’ve stunted the spectrum of legal thought in a way that removes the possibility that there could have been more progressive readings of the Fourth Amendment and the Fifth Amendment. [emphasis added]

Yes, that’s right, President Obama has nominated someone who believes the Warren Court was too conservative.  

Pamela Harris and ‘Abortion Distortion’


The most important question about Pamela Harris, President Obama’s newest nominee to the Fourth Circuit, is her judicial philosophy. To put a sharper point on it, the question is whether a political operative with an aggressively liberal agenda can put aside her political beliefs and follow the law.

It’s well known that Democrats generally don’t appoint anyone to the federal bench who isn’t a reliable supporter of abortion. As Shannen Coffin pointed out in a 2004 article in National Review, this selection bias sometimes leads to “abortion distortion” – courts twist the law to achieve a result just because abortion is involved. So let’s ask the question squarely: As an appeals-court judge, would Pamela Harris be prone to “abortion distortion,” or will she stick to interpreting the law?

As it turns out, we have some pretty unequivocal evidence on this question in a 2006 blog post on the American Constitution Society’s website (since removed). Before the Supreme Court had issued its decision in Gonzales v. Carhart and Gonzales v. Planned Parenthood (2007), Harris and Indiana Law School professor Dawn Johnsen prognosticated about the two 2007 cases, brought by notorious late-term abortionist Leroy Carhart and Planned Parenthood to enjoin enforcement of federal ban on partial-birth abortions,.

Harris’s post is revealing not so much for what it predicted but for what it shows about her sense of proper judicial judgment. Harris did her best to characterize the cases as an easy win for the abortionist under Stenberg v. Carhart (2000), even though the challenged federal ban was notably different from the Nebraska partial-birth-abortion ban struck down in Stenberg. Here’s how Harris characterizes the federal law:

In 2003, Congress responded defiantly by passing the Partial-Birth Abortion Ban Act of 2003 (“Federal Abortion Ban”), a federal version of essentially the same law the Court struck down. Congress deliberately omitted the health exception mandated by Stenberg–and substituted “legislative findings” that, contrary to the Court’s conclusion in Stenberg, the banned procedure is “never necessary to preserve the health of a woman.”

Note the use of the word “essentially.” Yes, it was “essentially” the same law, except that it was deliberately drafted to fix the deficiencies the Supreme Court had found with the Nebraska law in Stenberg. In addition, Congress had made factual findings about the necessity of using the partial-birth-abortion procedure. Aside from reciting those differences, Harris never bothered to mention that Stenberg might actually be distinguishable. To Harris, it seems, all abortion laws look alike.

Recognizing that the Court might not agree, though, Harris tried to explain why the case might turn out the other way. Harris proposed that the Court could end up striking down the law with a power play:

On the one hand, the Court may have an institutional interest in standing by its prior decision and protecting its prerogatives against what it likely will see as encroachment by Congress. Justice Kennedy, in particular, has been quick to invalidate what he views as congressional “overrides” of Supreme Court decisions.

I interpret these sentences to be asking whether Justices Alito and Roberts might use their new Supreme Court super powers to strike down the law and put Congress in its place, even though they’re unpersuaded by the legal arguments. But what are these mysterious “prerogatives?” Someone should ask what “prerogatives” she thought the courts would have.

Harris then implied that there are only two options if the Court ends up upholding the law: the dishonest option or the policy-driven option.

On the other hand, though, is the fact that the Stenberg dissenters–again, especially Justice Kennedy–were particularly fervent in their belief that the Nebraska law should stand, regardless of what they termed “marginal” costs to women’s physical safety. With the substitution of Justice Alito for Justice O’Connor, we may well have five Justices prepared to abandon Stenberg–either behind the guise of deference to Congress’ “findings,” or by overruling Stenberg outright. [citation omitted]

The third option, of course, is that the justices honestly think that Congress adequately distinguished the federal law from the state law struck down in Stenberg. Harris apparently didn’t think that this was an option, even though that’s exactly what the majority ultimately did.

Ironically, Harris concluded the blog post by invoking federalism, suggesting that upholding the statute would allow Congress to prevent the states from determining their own treatment of abortion rights. It is certainly true that there can be principled disagreement about whether the partial-birth-abortion law is a proper exercise of Congress’s power under the Commerce Clause. (Justices Thomas and Scalia raised this point in concurrence). But in Harris’s hands, federalism acts as a self-contradictory makeweight argument: If Stenberg were upheld, as Harris hoped, both states and Congress would have been unable to deal meaningfully with partial-birth abortion because they would be constrained by national judicial fiat.

What does all this show us about Harris’s judicial philosophy? First, she finds that the case law gives an “easy” answer when it happens to agree with her view of what the law should be. Confirmation bias is a temptation for all judges, which is why it’s especially important for judges to be demonstrably able to set their political views aside. It’s unlikely that a political operative like Harris can do that even if she tries. Second, Harris exalts the role of judicial power to the point that she believes Justices Alito and Roberts could properly consider protecting the Court’s “prerogatives” instead of just interpreting and applying the law as they took an oath to do. This is unbelievably cynical, and raises questions about what Harris thinks it would mean to “faithfully and impartially” carry out judicial responsibilities.

Such tendencies are a recipe for “abortion distortion,” suggesting that Harris is well outside the mainstream of judicial philosophy. Perhaps the Senate Judiciary Committee can explore these questions in more detail.

This Day in Liberal Judicial Activism—June 17


1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)  

“Polygamy and Human Dignity”


That’s the title of an insightful Public Discourse essay by political scientist Carson Holloway. I’ll quote here just the last paragraph, which applies equally to other efforts to redefine marriage:

Contemporary liberals tend to be environmentalists. In that capacity, they often warn us that even apparently small changes in the natural environment—such as the extinction of a single species—can have far-reaching and damaging consequences for the whole system. They commonly refuse to see, however, that the same concerns apply when we are making changes to our society. In changing the definition of marriage, they think they are accomplishing nothing but an extension of principles they think are good—equality, or sexual liberation. They refuse to acknowledge that they may also be changing the character of our whole civilization. 

Re: “This Is Not a Good Book”


On top of the Wall Street Journal review I highlighted (as well as an earlier one): In the Washington Post, legal journalist Seth Stern (whose biography of Justice Brennan I’ve praised) offers a very critical review of Bruce Allen Murphy’s new biography of Justice Scalia.

Stern observes that Murphy “offers little new insight in this relentlessly negative book.” Further, despite not having conducted “many” interviews (I think the actual number is zero) and having evidently spoken with Scalia only “a single time at a reception,” Murphy “has no compunction about writing as if he knows exactly what the justice was thinking or feeling at any given moment.” (For examples of some of the absurdities that Murphy’s armchair psychologizing yields, see my Part 4 post (points 2 and 3) and my Part 7 post. Links to my full series of posts about Murphy’s book are available here.)

By Stern’s judgment, Murphy’s book “fares poorly in comparison with” Joan Biskupic’s 2009 biography of Scalia, “which was more compact and yet far richer in detail about his early life and jurisprudence.” My own four-part review of Biskupic’s book combined some praise (especially on the biographical part) with much more criticism (of her account of his jurisprudence), but I agree with Stern that Biskupic’s book is much, much better than Murphy’s. (For an excellent extended account of Scalia’s jurisprudence, read Ralph Rossum’s Antonin Scalia’s Jurisprudence: Text and Tradition.)

This Day in Liberal Judicial Activism—June 15


1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

“This Is Not a Good Book”


In a perceptive review in the Wall Street Journal, law professor Joshua Hawley provides that gently stated bottom-line assessment of Bruce Allen Murphy’s laughably incompetent new biography of Justice Scalia.

Among other things, Hawley points out, Murphy “shows an alarming willingness to bend the facts to fit his caricature,” “substitutes amateur psychologizing” in place of historical analysis, and spews charges that “are either unsubstantiated, purely ad hominem or … simply untrue.” Indeed, even “to call the book a ‘biography’ is overgenerous,” as Murphy, having failed to do any interviews or other original research, “never manages to place [his] discrete snippets [about Scalia] into anything resembling a historically informed portrait of the justice’s life.”

In the several opening and closing paragraphs that sandwich his review, Hawley provides vastly superior insight into Scalia’s jurisprudence and influence than you’ll find in the hundreds of pages of Murphy’s hash of confusion.

(Links to my own series of posts about Murphy’s book are available here.)

This Day in Liberal Judicial Activism—June 14


1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City (Missouri) school district—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy.

Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

Who Is Pamela Harris?


A bit over a month ago, President Obama nominated arch-liberal Pamela Harris to the last remaining vacancy on the U.S. Court of Appeals for the Fourth Circuit, traditionally one of the nation’s least radical appeals courts.

If Harris’s nomination is successful, Democrat-appointed judges on that court will outnumber Republican-appointed judges by a ratio of 2–1. Harris would be the sixth judge Obama has appointed to the Fourth Circuit, and Bill Clinton appointed five judges. (I count Judge Roger Gregory as a Clinton appointee because President Bush re-nominated him as a gesture of good faith after the Senate failed to act on his nomination at the end of the Clinton presidency.) George W. Bush, by contrast, succeeded in only three appointments. In short, one could say that the Fourth Circuit is in danger of turning into the Richmond branch of the Ninth Circuit.

Ms. Harris’s nomination was greeted with cheers in some liberal quarters for the very reasons that make her a bad candidate. First of all, she is a veteran of the legal Left, having worked for President Obama in the Office of Legal Policy, which describes itself as “serv[ing] as the primary policy advisor” to Attorney General Holder. Her longstanding relationship with the American Constitution Society (of which she was a board member) confirms that she is precommitted to imposing her left-wing political preferences from the federal bench. All of this inspired David Fontana to write for The New Republic that Harris would be “an eloquent and inspiring champion of liberal jurisprudence.”

There is no reason to doubt him on that point, and over the next few days Jonathan Keim and I will be writing a series of posts explaining why U.S. senators should be deeply skeptical of her ability to put the law ahead of her political views.


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