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This Day in Liberal Judicial Activism—February 10


1947In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

This Day in Liberal Judicial Activism—February 9


2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees-Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson-issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. In January 2014, Brown, now governor, will seek an order extending the deadline until December 2016. 


Did Gov. Crist Sell Judgeships?


The Washington Times reports that a former fundraiser for Charlie Crist is accusing the former Florida governor of selling judicial appointments while he occupied the statehouse. “For certain contributions, people were appointed to the bench,” claims attorney Scott Rothstein, who was recently sentenced to fifty years in prison for running a Ponzi scheme.  Crist denies the allegation.  Rothstein’s charge comes as Crist is preparing to challenge incumbent Florida Governor Rick Scott (R).  Although Crist was a Repubican when he served as Governor before, he is now running as a Democrat.

Halbig v. Sebelius, Part One: The Issue


As promised, this is the first in a series of posts about Halbig v. Sebelius, a case challenging a significant power grab by the IRS, in which we recently filed an amicus brief, which you can find here.

Let’s begin with some background. The Affordable Care Act (ACA), also known as Obamacare, was designed as an incentive scheme to coerce individuals and employers into signing up for an expensive health-insurance plan. Under the scheme, individuals without employer-provided health insurance would be incentivized—through various tax penalties and tax subsidies—to purchase health insurance through an ACA-created Exchange.

The ACA conceives of Exchanges as principally State operations, and encourages/directs States to create Exchanges. Section 1311 of the ACA (42 U.S.C. § 18031) lays out several of these incentives, such as grants and tax subsidies, including provisions that allow tax subsidies to apply to individuals who purchase insurance plans from a state-run Exchange (“established by the State”). In the event that a state wouldn’t (or couldn’t) set up an Exchange in time for 2014, Section 1321 of the ACA (42 U.S.C. § 18041) gives the Department of Health and Human Services (HHS) the responsibility of establishing a federal exchange for that state, but contains none of the language about tax subsidies contained in Section 1311.

But by the statutory deadline, only 17 States had opted to create their own Exchanges under Section 1311. This meant that under the ACA, HHS became responsible for creating a federal Exchange for the remaining states. This also created a dilemma: How do you convince people to buy expensive health insurance on a federal Exchange without a tax subsidy to defray the enormous cost of insurance? 

The IRS tried to gloss over the issue, issuing regulations that authorize tax subsidies for plans issued through both State and federal Exchanges. Under the IRS’s theory, then, tax subsidies flow to individuals who buy insurance under either exchanges established by either a State or by the federal government.

But the statute establishing the tax subsidy actually says something quite different. Section 1401 of the ACA (codified at 26 U.S.C. § 36B) says that the tax subsidy only applies to plans enrolled through “an Exchange established by the State under [Section] 1311 of the Patient Protection and Affordable Care Act,” (emphasis added) that is, under the provision regulating the creation of State Exchanges. Conspicuously absent is any reference to Section 1321 federal Exchanges. So the effect of the IRS’s regulation is to grant an enormous tax benefit to states that chose not to avail themselves of Section 1311.

Everyone agrees that the ACA does not expressly authorize tax subsidies for plans purchased on federally-created Exchanges and that it does so expressly for plans purchased on State-created Exchanges. And this makes sense: The ACA’s drafters expected the States to opt into the federal scheme enthusiastically, so they did not ensure the continuation of the incentive scheme by linking these incentives to the federal Exchanges. So the legal question before the D.C. Circuit Court of Appeals is about how far an agency can stretch a statute in search of authorization to provide a tax subsidy.

We believe that the district court has stretched the statute too far. In my next post, I will explain the government’s interpretation and briefly outline the lower court’s decision that is currently on appeal to the D.C. Circuit. After that I will explain some of the principles that should guide the D.C. Circuit and what is at stake in this case. 

This Teaching Moment Brought to You by the Center for American Progress and Governor Chris Christie


Governor Chris Christie has been under serious attack lately, and the Center for American Progress is opening up another front: judges. Their observations on the topic are revealing, because they are evidence of the persistent confusion on the left about the proper role of a judge. 

CAP quotes my criticism of Christie as having “completely squandered the opportunity to appoint highly qualified judges who faithfully adhere to the text and original meaning of the law,” and is puzzled, because, from their perspective, “Christie is engaged in an unprecedented effort to augment the governor’s influence over the fiercely independent New Jersey Supreme Court.”

This observation is spot-on, if by “unprecedented effort to augment the governor’s influence” you mean “exercising the governor’s constitutionally-given power to appoint new justices rather than reflexively granting life tenure to incumbent judges,” and if by “fiercely independent” you mean “lawless and out of control.” 

To his credit, Governor Christie does seem to be interested in fixing one of the many problematic aspects of New Jersey law: the Abbott line of cases which for decades has resulted in courts micromanaging dozens of school districts and even usurping the state legislature’s plenary authority to make spending decisions. Disagreement with Abbott seems to be the litmus test he has for his judicial nominees.

But that approach is shortsighted and betrays a lack of understanding of the real problem.

Don’t get me wrong, I think the Abbott cases are a disaster. They have exploited state constitutional language establishing “a thorough and efficient system of free public schools for the instruction of all the children in the State between the ages of five and eighteen years” to give judges authority over educational policy details such as whether the state also must offer preschool to children under age five and exactly how much money it must spend on education. These cases are only one example of the judicial imperialism that is the source of many of New Jersey’s most intractable financial woes.

But a governor (or president) should not choose judges based on how he thinks they would vote on one or two big cases. After all, a judge who was focused on the outcome of the case rather than applying the proper legal reasoning would be the very definition of activist. 

Judicial activism isn’t about the result in a case, it’s about the process.

A justice who voted to strike down the Abbott decisions because he or she felt as a matter of justice that school districts should be independently funded rather than redistributive would be activist. A justice who thought the state should get out of the education business altogether and so voted to strike down the Abbott cases would similarly be activist. 

But a justice who voted to strike down the cases because they involve the courts going beyond the constitutional language and usurping the constitutionally granted authority to other branches of the state government? That would be the same result, but for a principled legal reason rather than a political one. That is the proper role of the judge.

And unfortunately, in his approach to choosing judges, Governor Christie seems to be concerned more with identifying individuals who disagree with the Abbott decisions than with the harder job of finding nominees with evidence of a principled judicial philosophy.


Judicial Education Project Files Amicus Brief in Halbig v. Sebelius


Yesterday, the Judicial Education Project (along with the Center for Individual Rights and Cooper & Kirk, PLLC) filed an amicus brief in Halbig v. Sebelius on behalf of Senators John Cornyn, Ted Cruz, Orrin Hatch, Mike Lee, Rob Portman, Marco Rubio, and Congressmen Dave Camp and Darrell Issa. Halbig is one of several cases challenging the Internal Revenue Service’s tax regulations under the Affordable Care Act (ACA) based on exhaustive analysis of the language, history, and purposes of the ACA. Several other organizations have filed amicus briefs, including the Cato Institute, Competitive Enterprise Institute, Consumers’ Research, the Galen Institute, and the Pacific Research Institute, and several states. This is an unusual number of amicus briefs to be filed at the circuit court level, highlighting the unusual importance of this case.

These cases raise important issues of statutory interpretation that go to the core of the Constitution’s separation of powers and will dramatically affect the size of the administrative state in coming years.

Over the next couple posts, I will give a technical overview of the issues in the case and the arguments we raise in our amicus brief. Stay tuned. If you can’t wait to learn more, see this article by Bench Memos colleague Jonathan Adler, professor of law at Case Western Reserve University’s law school, and Michael Cannon, Director of Health Policy Studies at the Cato Institute, who is collecting additional resources about the case here

“Falling Down on the Job”


That’s the title of my essay in the new issue of the Weekly Standard on the failure of some state AGs to defend state marriage laws. Here are my concluding paragraphs:

In the long run, those on both sides of the marriage debate ought to recognize that much more is at stake than the battle over marriage. The very concept of the rule of law—of a realm of impartial decision-making according to neutral principles set forth in advance—depends on maintaining as distinct a line as possible between law and politics. To be sure, Supreme Court decisions of recent decades have done much to obscure that line. The indeterminate nature of the “living Constitution” approach that at least five justices apply means that intelligent lawyers can plausibly reach a broad range of legal conclusions on any open federal constitutional issue.

If state attorneys general come to believe, as Herring purports, that they have discretion to refuse to defend state constitutional provisions and statutes that conflict with their own subjective legal judgments, then state laws will survive only at their sufferance. The ensuing political pressure on state attorneys general to exercise that veto power will intensify. And the rule of law may fall beyond repair.

In his courageous 2011 letter immediately resigning his lucrative partnership in King & Spalding, Paul Clement offered some words of wisdom that Mark Herring and others reluctant to defend state marriage laws could learn from. The adversary system of justice and the rule of law, Clement explained, depend on lawyers not abandoning a client “because the client’s legal position is extremely unpopular in some quarters.” As for the desire to be “on the right side of history,” Clement observed, “When it comes to the lawyers, the surest way to be on the wrong side of history is to abandon a client in the face of hostile criticism.”

Re: Red Herrings


Some follow-up to my post last week explaining that Virginia attorney general Mark Herring has no plausible basis for his failure to defend his state’s marriage laws:

1. In preparing an article on the matter for the Weekly Standard (to be published in the next issue), I consulted with liberal law professor, and legal ethics expert, Stephen Gillers on a state attorney general’s ethical duties. Professor Gillers has kindly authorized me to state that he generally agrees with the following paragraphs (which, in slightly truncated form, appear in my Weekly Standard article):

Under well-settled principles of the American adversary system, a lawyer is ethically obligated to represent his client’s legal position zealously in court. That means, among other things, that if there are non-frivolous arguments that can be advanced in support of a client’s position, the lawyer should advocate that position when the lawyer determines that it is in the client’s strategic interest to do so. Under narrow circumstances, a lawyer may withdraw from representing a client in a matter. But he may never fail to advocate a defensible position that is in the client’s interest to assert simply because he personally believes it to be legally incorrect.

By virtue of his office, a state attorney general is the top lawyer for his client, the state. Except as to laws still on the books that are clearly invalid under existing judicial rulings, the only sensible legal position to impute to the state is that its laws—the provisions of the state constitution and the statutes consistent with those provisions—are valid and enforceable. The attorney general’s obligations as a lawyer therefore require him to vigorously defend any of those laws against challenge under federal law so long as there are reasonable (i.e., non-frivolous) grounds for doing so. If, however, for reasons of conscience the attorney general cannot do so in a particular case, a subordinate should be assigned.

2. With its usual obtuseness, Media Matters takes issue with my conclusion that Herring has violated his duties. Media Matters fails to grasp the underlying basis for the state attorney general’s duties and fails to confront (or even link to) my arguments disposing of the supposed precedents it invokes. Much like the inane Washington Post editorial, Media Matters seems to think that the fact that some lower courts are striking down marriage laws somehow excuses Herring from doing his duty.

This Day in Liberal Judicial Activism—February 6


1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton appoints Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

More Slate Follies on HHS Mandate Cases


In a very strange Slate essay, David H. Gans (of the Constitutional Accountability Center) imagines that the “near-total silence” of “corporate America” on the question whether for-profit corporations are capable of engaging in an exercise of religion somehow cuts against the claims of Hobby Lobby and Conestoga Wood for religious-liberty protection from the HHS mandate. Gans concludes: “As they look forward to argument in these challenges, the justices may want to remind themselves that this is one constitutional right that corporate America cannot and will not defend.”

A few quick observations:

1. How odd that anyone—much less someone on the Left—would suggest that Supreme Court justices should take their cues from “corporate America.”

2. The unsurprising fact that “corporate America” has no interest in the question is simply further demonstration that the government’s parade of horribles—about the consequences of recognizing that for-profit corporations can engage in an exercise of religion—is illusory. As the amicus brief submitted by my organization, the Ethics and Public Policy Center, points out, only corpora­tions that could demonstrate (1) a corporate adherence (2) to a religious belief (3) that is sincerely held can engage in an exercise of religion. Few if any publicly traded corporations would ever satisfy those requirements. So why would anyone expect them to be filing amicus briefs?

3. Gans repeatedly biases his presentation by asserting that the question involves whether “secular” corporations can exercise religion. But his assumption that all for-profit corporations should be deemed “secular” makes no sense. A nonprofit “religious organization” can operate the same sort of “secular” businesses that a for-profit corporation can operate. Like the Obama administration, Gans can’t explain how it is that a nonprofit religious corporation can exercise religion when it operates a business but that a closely held family corporation operated in accordance with the family’s religious commitments can’t exercise religion when it does the very same thing.

4. Rather than draw the wrong inference from briefs that haven’t been filed, Gans ought to try addressing the compelling arguments for corporate exercise of religion made in amicus briefs like the ones filed by EPPC, by Michael McConnell (on behalf of various booksellers), and by Douglas Laycock (on behalf of religious and civil-liberties organizations).  

Salt Lake City Event


Next Thursday, February 13, I will be in Salt Lake City to discuss the HHS mandate litigation at a lunchtime event sponsored by the Salt Lake City lawyers chapter of the Federalist Society. CLE credit is available.

This Day in Liberal Judicial Activism—February 5


1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for judges to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process.” The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of [the] liberal ideology of Clinton judicial appointments and [of the] American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges. 

Sunstein Phones It In


Cass Sunstein is proof that you can reach the pinnacle of the legal professoriate without ever taking your intellectual adversaries seriously enough to learn something about what they actually argue.  In a Bloomberg column, Sunstein attacks originalism with the hoariest old discredited arguments that one is ever likely to see, and his favorite ploy is the straw man.

Writing of Justices Scalia and Thomas (who might evidence some interesting differences if one looked at their opinions closely), Sunstein allows that they believe “the job of the judges is to go into a kind of time machine and learn what history tells them about the ‘expected applications’ of these provisions.”  This is at best a crude distortion, and at worst plainly false.  Originalists try to discern the Constitution’s original meaning in order to discern its principles, and the logic of their reach and application.  Nothing about originalism tethers its practitioners tightly to the narrow “expected applications” demonstrably in the minds of any framers or ratifiers.

Sunstein may have in mind, by “expected applications,” something along the lines of another fault he imagines, when he asserts that originalism is oblivious to “changed circumstances,” writing:

In prohibiting unreasonable searches and seizures, the ratifiers of the Fourth Amendment couldn’t have anticipated wiretapping, much less the Internet. But it would be absurd to think that the government has unlimited power to tap our phones and monitor our e-mails.

Wow, is there a more tired anti-originalist argument than this?  And is there a single originalist anywhere who would be guilty of Sunstein’s imaginary faux pas of believing the Fourth Amendment doesn’t apply to wiretapping because there were no wires to tap in 1791?  No, and no.

But my favorite, in the too-clever-by-half department, is when Sunstein writes:

Did those who ratified the Constitution embrace originalism? If not, originalism turns out to be self-contradictory, because the original understanding rejected originalism as Scalia and Thomas understand it.

This founders-rejected-originalism-so-we-should-too argument was most prominently on display some years ago in Jack Rakove’s book Original Meanings.  At book length, the argument was clever, but not convincing.  Everything we know about the legal mind of the eighteenth century suggests that it was steeped in premises and interpretive methods we would identify today as originalism (a term that did not need to be used and hadn’t been invented when everyone thought this way).

But even if Sunstein’s assertion—or Rakove’s book—were correct, it would not follow that originalism is “self-contradictory,” discredited, or wrong, at least not for Sunstein.  For on Sunstein’s own premises, a method of judging is chosen for its fitness with the judicial task of producing intelligible legal outcomes that are both principled and consistent with our form of government.  From a Sunsteinian perspective, therefore, an absence of evidence that the founders were originalist—or even evidence that they were not—could not possibly discredit the judicial choice to be an originalist.

This was Sunstein’s best argument.  And it turns out to be his worst.

This Day in Liberal Judicial Activism—February 4


2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as between a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, reverses this ruling.

Judge O’Scannlain on Joseph Story, Natural Law, and Modern Confusion


The Heritage Foundation has posted the text of Ninth Circuit judge Diarmuid F. O’Scannlain’s recent Joseph Story Distinguished Lecture, which I was pleased to attend.

In his excellent lecture, Judge O’Scannlain explores Story’s understanding of natural law, including its foundation in man’s inherent and unchangeable nature. He contrasts Story’s understanding with the “fundamental philosophical premise” of Planned Parenthood v. Casey and other recent rulings—namely, that the law “cannot assume that human nature has an objective reality.” As O’Scannlain explains, Story would recognize that “the Court’s recent jurisprudence is at war with itself: It purports to protect universal principles of justice, yet its assumptions undercut the very idea of universal principles.”

It is, of course, one thing to say that judges, in deciding cases, shouldn’t engage in doctrinal inventions that contradict natural law. It would be quite another to say that judges may freely indulge their understandings of natural law to override positive law. O’Scannlain emphasizes that Story “recognized that the judicial office placed limits on his ability to apply natural law”—limited, I gather, to those legal provisions that incorporate natural-law principles—so the reader should understand Story’s belief that (as O’Scannlain puts it) “positive law must conform to natural law” as a philosophical conviction, not as a judicial doctrine.

Politicizing the Role of the Attorney General


As Ed just mentioned, today’s Washington Post features an op-ed by Colorado’s attorney general, John W. Suthers, criticizing three state attorneys general for refusing to defend democratically enacted state laws. The net effect of such politicization, Suthers says, “corrodes our system of checks and balances.” Which makes sense: These AGs are basically ignoring their responsibility to the state that elected them, and are instead acting on behalf of left-wing special interests.

In the three states Suthers identifies, California, Virginia, and Pennsylvania, traditional marriage was affirmed by voters in 2008, 2006, and 1996. If the elected officials of those states think the people have changed their minds since then, maybe they should let them say so through the ballot box.

Read the whole thing here.



Hobby Lobby’s Family Owners Speak for Themselves


The Green family–the owners of Hobby Lobby, whose religious freedom the Obama administration is so desperate to violate that it is taking them all the way to the Supreme Court–speak their own minds about the issues in the case in this video.  It’s good to be reminded of the human beings the government wants to coerce, and of the human costs we will all bear if the government wins.


Excellent WaPo Op-Ed on Duty of State Attorneys General


After its inane house editorial last week defending Virginia AG Mark Herring’s irresponsible refusal to defend his state’s marriage laws, I’m pleased to see that the Washington Post today published an excellent op-ed on the broader topic by Colorado attorney general John W. Suthers. An excerpt:

I fear that refusing to defend unpopular or politically distasteful laws will ultimately weaken the legal and moral authority that attorneys general have earned and depend on. We will become viewed as simply one more player in a political system rather than as legal authorities in a legal system. The courts, the governments we represent and, most important, the people we serve will treat our pronouncements and arguments with skepticism and cynicism. One must be cynical when an attorney general refuses to defend a controversial law as “clearly unconstitutional” when there is no binding precedent and it is apparent to most knowledgeable people that the U.S. Supreme Court is likely to decide the case on a 5-4 vote.

I’ll add that I’ve just submitted an article to a print magazine on the same topic and expect it to be published in a week or so.

This Day in Liberal Judicial Activism—February 3


1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraces an aggressive view of judicial power. While he sometimes deploys that power towards conservative ends, his misdeeds of liberal judicial activism are far more momentous—and are often masked by grandiose rhetorical diversions. To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Roper v. Simmons (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Lawrence v. Texas (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Ashcroft v. Free Speech Coalition (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography.

2010—In Perry v. Schwarzenegger—the case challenging California’s Proposition 8 and traditional marriage—the ACLU Foundation of Southern California continues its involvement in the case by filing a post-trial amicus brief on behalf of its national affiliate, the American Civil Liberties Union.

Ramona Ripston, the wife of Ninth Circuit judge Stephen Reinhardt, is the executive director of the ACLU Foundation of Southern California and (per its website) is “responsible for all phases of the organization’s programs, including litigation.” In addition to leading the political opposition to Proposition 8, Ripston engaged in confidential discussions with the lawyers for the Perry plaintiffs about whether they should file the case. And months later, she will publicly celebrate Judge Vaughn Walker’s decision striking down Proposition 8.

Yet when the wonders of random selection assign arch-activist Reinhardt to the Ninth Circuit panel to review Walker’s decision in this very case, Reinhardt somehow will decline to recuse himself. 

This Day in Liberal Judicial Activism—February 2


2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary. 


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