Bench Memos

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More Mischief from Judge Reinhardt


On Tuesday, a liberal Ninth Circuit panel, in an opinion by arch-activist Stephen Reinhardt, ruled in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Judge Reinhardt construed the Supreme Court’s anti-DOMA decision last term in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles. Reinhardt’s ruling thus has obvious—and, I think it’s fair to infer, deliberately designed—implications for how the Ninth Circuit will review challenges to state marriage laws.

Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.

Reinhardt’s first dubious step is to argue that in construing Windsor he is bound by the approach that a previous Ninth Circuit panel used in its 2008 decision in Witt v. Department of the Air Force to construe what Lawrence v. Texas meant for the level of scrutiny to be used for due process claims regarding sexual orientation. That approach, Reinhardt says, requires him to analyze Windsor “‘by considering what the Court actually did’” and by looking to the same three factors that the Witt panel considered.

I’m skeptical that Witt (a ruling, incidentally, that the Obama Justice Department and then-Solicitor General Elena Kagan irresponsibly failed to seek Supreme Court review of) binds Reinhardt in the granular way he claims, and I doubt very much that he takes the same reading of circuit precedents when it doesn’t suit his purposes to do so. But the larger problem, or the bigger trick, is Reinhardt’s assumption that Windsor must be read to have implicitly adopted any general level of scrutiny for classifications based on sexual orientation.

The far better reading of what the Windsor majority “actually did,” I would submit, is that it found that DOMA “departs from [our] history and tradition of reliance on state law to define marriage” and instead “seeks to injure the very class [state law] seeks to protect.” That reasoning directed at the specifics of DOMA made it unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. (As I have made clear, I think that the Windsor majority’s reasoning is badly flawed, but those flaws are irrelevant here.) Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.

Disclosure: Abbott Laboratories, the losing party on appeal, was represented by the law firm of Munger, Tolles & Olson, which is also representing the Ethics and Public Policy Center, the think tank I head, as an amicus in the pending HHS mandate litigation in the Supreme Court.

This Day in Liberal Judicial Activism—January 24


1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit. In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement. Deploying his full arsenal of clichés, Teddy Kennedy rails against Souter’s Supreme Court nomination. His efforts, alas, prove unsuccessful. 


Human Rights Campaign Idiocy


Human Rights Campaign, the gay-advocacy organization, is criticizing Gene Schaerr, the outside lawyer Utah has hired to defend its marriage laws, for “citing his personal religious beliefs as the rationale behind his decision” to take on the assignment:

“It’s alarming that the reason Gene Schaerr gives for  taking this position has nothing to do with the U.S. Constitution or the legal issues at play,” said Fred Sainz, HRC Vice President of Communications. “Schaerr’s entire motivation for taking this anti-equality case is to impose a certain religious viewpoint on all Utahns – and that’s wrong. When you become an attorney, you take an oath to uphold the U.S. Constitution, not any particular religious doctrine.”

What a muddle of idiocy. It should hardly be a surprise that many religious people will make basic work decisions based on a sense of religious vocation or obligation. It doesn’t follow that they are thereby seeking “to impose a certain religious viewpoint” on others. Schaerr evidently believes in “the constitutionality of traditional marriage”—just as President Obama purported to do until very recently—and there is nothing remotely “wrong” about his “motivation” to work to advance that constitutional understanding.

Nor does the fact that Schaerr’s church supports the perennial understanding of marriage have any significance. Let’s say that a lawyer belongs to a church that supports redefining marriage to include same-sex couples. Does HRC really believe that that lawyer acts improperly if he volunteers to work for a client on a matter in order to help advance that cause?

Update: I’ve just run across Eugene Volokh’s earlier post, which I am pleased to recommend.

George Will’s Embrace of Judicial Activism


Matt Franck has previously discussed “the strange turn George F. Will has taken toward endorsing judicial activism—and the way in which his constitutional views today constitute an unacknowledged contradiction of arguments he has made many times before.” Will’s Washington Post column today (which the editors fairly title “Judicial activism isn’t a bad thing”) provides, alas, another stark example.   

I’m not surprised that Will writes very favorably of Clark Neily’s book Terms of Engagement (which I criticized last fall in a series of posts: see parts 1, 2, 3, 4, 5, and 6). Will, after all, provided the blurb on the front cover of the book, and Neily’s general argument is consistent with Will’s “strange turn.” But I am surprised by how weak Will’s argument against judicial restraint is:

1. Will contends that “a perverse conservative populism panders to two dubious notions—that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.” Really? Who is expressing such notions?

I think, instead, that proponents of judicial restraint reject, as the younger George Will did (Dec. 18, 1994), the proposition that imperfections in the democratic processes mean that “majority rule is immoral and rule by an enlightened judiciary is obligatory,” and that they see the “zest for judicial decrees to supplement or even supplant legislative policy-making, and [a] corollary contempt for representative institutions,” as a mark of “contemporary American authoritarianism.” They reject the notion that Will now embraces—that America has a single “defining value” of “individual liberty” that judges should unconstrainedly pursue.

I think that proponents of judicial restraint recognize that there is an inherent “tension between judicial review—the invalidation of laws enacted by elected representatives—and popular government” (Will, Sept. 3, 2005), and that it is praiseworthy (“Admirable Judicial Restraint,” as Will’s column title of Feb. 2, 1992, put it) for a court to have “the courage to let [an] injustice stand rather than resort to judicial overreaching …., the courage to be judicial and self-denying rather than political and self-indulgent.”

I think that proponents of judicial restraint lament, as George Will once did (May 26, 1996), that “many Americans rather like courts sparing them the rigors of democratic responsibility for social policies,” and decry that “judicial imperialism” means that “democracy is so debilitated that Americans no longer seem to find [rule by judges] irksome.”

2. Will contends, “Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained.” One could with at least as much merit respond: “Libertarians’ advocacy of judicial activism serves liberalism by leaving judicial power unrestrained.”

In any event, Will’s contention bears only on the question whether judicial restraint serves Will’s political goals, not whether it is jurisprudentially sound.

Most contemporary conservative proponents of judicial restraint are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question. These proponents of originalism and judicial restraint aim, in other words, to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution. I don’t see how any conservative could object to that approach (though I of course recognize that there is plenty of disagreement among originalists on what some provisions of the Constitution mean).

3. Will asserts: “The beginning of wisdom is recognizing the implications of this fact: Government is almost never disinterested.” Like Neily, Will somehow fails to apply that insight to those governmental actors known as judges, who have amply demonstrated their own “metabolic urge to enlarge [their] dominion.”

4. Will even recites with approval Neily’s silly statistical flim-flam on the percentage of laws and regulations that the courts strike down. As I’ve explained, Neily’s statistics

tell us nothing meaningful. They don’t tell us whether the Court was right or wrong in particular cases. They don’t tell us whether the Court should have struck down more or fewer laws (as there is no objective theoretical baseline for how often the Court should strike down laws). And they convey nothing about the magnitude and impact of any judicial errors.

Every time the Supreme Court wrongly invalidates a democratic enactment, it usurps and shrinks the realm of representative government. Further, some of those usurpations are far more significant than others. Take Roe v. Wade, for example. To reduce Roe to a simple statistical point in the calculus is to ignore how Roe has distorted and corrupted American politics for more than four decades—and how it has prevented the passage of countless laws. Ditto for the ongoing judicial assault on the fundamental institution of marriage and for numerous other instances of liberal judicial activism that, especially since the 1960s, have overridden the ability of American citizens to exercise their powers of self-governance on a broad range of issues.

This Day in Liberal Judicial Activism—January 23


1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene. After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”

Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that (as Justice Scalia’s dissent aptly summarizes it) forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.” (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)

1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct. Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence. Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.”

Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994. 


The Eighth Amendment and Sex-Reassignment Surgery


Last Friday, in Kosilek v. Spencer, a divided panel of the First Circuit affirmed a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name is now Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”

Medical testimony before the district court was divided on the question whether sex-reassignment surgery was medically necessary for Kosilek. Several of Kosilek’s medical experts testified that it was medically necessary, but the state’s expert, Dr. Schmidt, disagreed. The district judge then appointed his own expert, Dr. Levine. Dr. Levine opined that the conflicting medical positions “reflect the current polarities within psychiatry” and that Dr. Schmidt’s view was “within prudent professional community standards.” But he later provided testimony that the district judge construed as less favorable to Dr. Schmidt’s position. The district judge ended up holding that sex-reassignment surgery was necessary for Kosilek and that Dr. Schmidt’s recommended course of treatment did not meet prudent professional standards.

The panel majority (opinion by O. Rogeriee Thompson, joined by William Kayatta—both Obama appointees) and Reagan appointee Juan Torruella’s dissent differ on several points, including the appropriate standard of review of the district court’s conclusion that sex-reassignment surgery was the only appropriate treatment for Kosilek. The panel majority reviewed the conclusion only to determine whether it was “clearly erroneous” and, given the “diametrically opposed opinions,” found that it was not. Judge Torruella, by contrast, undertook a “more searching” and “holistic” review, credited the initial report by the court-appointed expert, Dr. Levine, and faulted the district judge’s assertion that Dr. Levine had later changed his opinion. (Please note that I’m summarizing 118 pages of opinions in three paragraphs.)

If the bottom-line ruling strikes you (as it strikes me) as crazy, there are multiple possible sources of the craziness. It might, indeed, come from the district judge’s failure to accord enough deference to the prison officials, together with the panel majority’s according too much deference to the district judge. Or it might come from current medical opinion’s apparent acceptance of sex-reassignment surgery as a legitimate treatment. (According to this Boston Globe article, though, “no surgeon in Massachusetts [has] expressed a willingness to take on the task.”). Or it might come from the Supreme Court’s broader Eighth Amendment standards for medical care for prisoners. Or perhaps a mix of all of the above.

My Senate Testimony on Roe v. Wade


On the sad occasion of this 41st anniversary of Roe v. Wade, permit me to highlight my Senate testimony from June 2005. Here’s an excerpt from near the beginning:

Roe is the Dred Scott of our age.

Like few other Supreme Court cases in our nation’s history, Roe is not merely patently wrong but also fundamentally hostile to core precepts of American government and citizenship.

Roe is a lawless power grab by the Supreme Court, an unconstitutional act of aggression by the Court against the political branches and the American people.

Roe prevents all Americans from working together, through an ongoing process of peaceful and vigorous persuasion, to establish and revise the policies on abortion governing our respective states.

Roe imposes on all Americans a radical regime of unrestricted abortion for any reason all the way up to viability—and, under the predominant reading of sloppy language in Roe’s companion case, Doe v. Bolton, essentially unrestricted even in the period from viability until birth.

Roe fuels endless litigation in which pro-abortion extremists challenge modest abortion-related measures that state legislators have enacted and that are overwhelmingly favored by the public—provisions, for example, seeking to ensure informed consent and parental involvement for minors and barring atrocities like partial-birth abortion.

Roe disenfranchises the millions and millions of patriotic American citizens who believe that the self-evident truth proclaimed in the Declaration of Independence—that all men are created equal and are endowed by their Creator with an unalienable right to life—warrants significant governmental protection of the lives of unborn human beings.

Part 2 includes sharp criticisms of Roe from liberals who support legal abortion. Part 4 exposes myths about Roe. And part 5 discusses the Court’s 1992 decision in Planned Parenthood v. Casey, in which “Justices O’Connor, Kennedy, and Souter combined to produce a joint majority opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the sterile incoherence of Blackmun’s opinion in Roe.”

This Day in Liberal Judicial Activism—January 22


1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

1996—Federal district judge Harold Baer rules (in United States v. Bayless) that New York City police officers did not have reasonable suspicion that criminal activity was afoot when they observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four males cross the street in single file and, without speaking with the driver, deposit duffle bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them. Dismissing this last fact, Baer opines that publicity about the prosecution of a corrupt police officer in that neighborhood eliminated any inference that the men were engaged in evasive conduct. Indeed, “had the men not run when the cops began to stare at them, it would have been unusual.” Finding that the investigatory stop by the police violated the Fourth Amendment, Baer orders suppression of the evidence of the 34 kilograms of cocaine and two kilograms of heroin found in the duffle bags in the trunk.

Amidst the ensuing public outcry over Baer’s ruling—including comments by President Clinton that he might try to get his own appointee to resign—Baer reverses himself two months later and laments the “hyperbole (dicta) in my initial decision [that] regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”

Judge Boyce Martin’s Disgrace


Well, well.

Last summer, I noted in passing the welcome news that Sixth Circuit judge Boyce F. Martin Jr., a Carter appointee who had long been one of the nation’s zaniest judges, had decided to retire.

It’s now evident that Martin retired in order to forestall a Judicial Council investigation into $138,500 of* “questionable travel reimbursement requests” that Martin made over a period of 4-1/2 years. Martin submitted his retirement on May 14, 2013—three weeks after a special Judicial Council committee invited him to testify under oath on May 30 and one week after the committee sent him a notice of matters he’d be asked to testify about.

By his retirement, Martin succeeded in obtaining a dismissal of the complaint proceeding against him. But he didn’t succeed in his effort to bury news of the allegations against him. Misconduct proceedings are generally confidential, but commentary to the rules states that disclosure of the identity of the judge may be in the public interest, “particularly if a judicial officer resigns in the course of an investigation.” Applying this exception, the Judicial Council decided to disclose the charges against Martin.

Even worse for Martin, in an action that federal judicial expert Arthur Hellman calls “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.

Martin appealed both the Judicial Council’s decision to disclose the charges against him and its referral of the matter to the Justice Department, but in a decision last week the Judicial Conference’s Committee on Judicial Conduct denied his appeal.

* A spokeswoman for Judge Martin tells me that the $138,500 amount that I initially cited ​“represents the total of all [of Martin’s reimbursed] travel expenses” during the period—and the amount he has agreed to repay—not the amount of reimbursement expenses that were the subject of the misconduct complaint. The spokeswoman contends that the amount in dispute was much smaller, but she has declined my requests to provide even a ballpark figure of that amount, so I don’t see why I should believe her. (I also don’t understand why Martin would repay more than the amount in dispute, unless he hoped that he was thereby purchasing a stay-out-of-jail card.)​


This Day in Liberal Judicial Activism—January 20


1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy. 

This Day in Liberal Judicial Activism—January 19


1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.

1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

District Court: Obamacare Tax Subsidy Is ‘Clear’ and ‘Unambiguous’


On Wednesday morning, federal district judge Paul L. Friedman (a Clinton appointee) concluded that somewhere in the thousands of pages of the Affordable Care Act (ACA), one “clear” and “unambiguous” provision means the opposite of what it says.

The case is Halbig v. Sebelius, a lawsuit challenging Internal Revenue Service (IRS) regulations that permit—without statutory authorization—tax subsidies to residents of the 26 states that are refusing to capitulate to Obamacare’s demand for state-run health-insurance exchanges. Unfortunately, Judge Friedman granted the government’s motion for summary judgment against the plaintiffs, ending the case at the trial-court level and setting it up for appeal to the newly appointed Obama loyalists at the D.C. Circuit.

Judge Friedman’s opinion is a fascinating example of loop-the-loop statutory interpretation. The key question is whether the phrase “an Exchange established by the State” means “an Exchange established by the State,” or whether it actually means “an Exchange established by the State or HHS.” He acknowledges that the “plain language . . . viewed in isolation” appears to support the challengers’ contention that “by the State” refers to a state, not to HHS, that the definitions of all of the relevant statutory terms match the plaintiffs’ interpretation of the law, and that the ACA repeatedly refers to a tax subsidy for plans on an exchange “established by a State.” (Slip op. at 26–28). But Judge Friedman is not content with statutory definitions and intra-textual uniformity. No, to spring the interpretive lock, he accepts the IRS’s explanation of how the statute works and in light of that explanation, concludes that the statute is “unambiguous.” (Slip op. at 28–29). He goes on to cast the net wider to find “context” for this interpretation in the rest of the Obamacare statute. (Slip op. at 29–35).

There are several important flaws in this analysis. To begin with, Judge Friedman holds that the statute is unambiguous, so he doesn’t have to defer to the IRS interpretation. But he also doesn’t explain why the statute is textually unambiguous. He asks: Why would Congress have said that the credit applies to exchanges “established by the State” if it intended to mean “Exchanges created by a state or by HHS?”

Good question. That’s why the plaintiffs sued.

To answer the question, however, Judge Friedman accepts without qualification the government’s self-serving explanation of how the statute is supposed to work, then claims that any other interpretation of the statute would create “anomalies.” (Never mind that these “anomalies” actually make clear that Congress knew how to distinguish between provisions that apply only to State exchanges and repeatedly did so.) But that issue is actually the whole case, and Judge Friedman just accepts the IRS’s say-so without significant analysis. In other words, the statute is so “unambiguous” and “clear” that it can only mean something completely different from what it says. Got that?

Moreover, Judge Friedman drops a footnote on the second-to-last page of his opinion saying that even if the statute were ambiguous, the IRS interpretation would be upheld as a reasonable construction of the statute. (Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, when a statute is ambiguous, courts defer to the administrative agency’s reasonable interpretation of the statute.) But this, too, elides the central issue in the case: The IRS says the statute means something it doesn’t say. This means that the ACA is not ambiguous and the government’s interpretation is unreasonable.

Although summary judgment in the district court is a setback, appeal seems likely. For in-depth discussion of the ACA subsidies, Case Western Reserve law professor Jonathan Adler and Cato Institute scholar Michael Cannon published a scholarly article about these issues. In addition, Michael Cannon maintains a list of resources about the case at Forbes.


This Day in Liberal Judicial Activism—January 17


2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.

Re: Buffer-Zone/Free Speech Case


On top of Carrie Severino’s more thorough discussion of yesterday’s oral argument in McCullen v. Coakley, I’ll highlight one passage of the oral-argument transcript that particularly struck me.

Before enacting in 2007 its 35-foot zone that pro-life sidewalk counselors can’t enter, Massachusetts had in place a law that created an 18-foot zone inside which speakers were prohibited from approaching within six feet of a potential listener. Asked by Justice Breyer of the evidence under the old law that the Massachusetts legislature relied on in adopting the 2007 law, the lawyer for Massachusetts answered:

Experience showed that there had to be a certain amount of space around the [abortion] facilities. What we had, for example, were pro choice advocates swearing and screaming at pro life advocates within the buffer zone. That’s at Joint Appendix 26 through 28. You had the Pink Group, which is a pro choice organization, pushing and shoving and jockeying for position. [Transcript, 31:13-20 (emphasis added).]

I’m not contending that the lawyer’s answer provides a comprehensive account of the evidence, and the lawyer elsewhere refers to problems caused by pro-life individuals (though it’s not clear that these amounted to anything more than things like “pacing across … driveways” and “stopping and standing and refusing to move”—see Transcript at 43). But it’s remarkable that the primary evidence that the state’s lawyer cites for a law that has the predominant effect of barring peaceful pro-life expression on public sidewalks within 35 feet of an abortion clinic is hostile behavior by “pro choice advocates.”

Busy Judiciary Approves Raft of Nominees


The Senate Judiciary Committee is wasting no time in moving President Obama’s judicial nominees. This morning it reported out five appellate nominees and over twenty district court nominees.  Three of the appellate nominees were approved by a voice vote.  These were Carolyn McHugh and Nancy Moritz, both nominated to the U.S. Court of Appeals for the Tenth Circuit, and John Owens, nominated to the U.S. Court of Appeals for the Ninth Circuit.  Michelle Friedland, nominated to the U.S. Court of Appeals for the Ninth Circuit, was approved 14-3, and David Barron, nominated to the U.S. Court of Appeals for the First Circuit, was approved 10-8.

Can We Expect a 5–4 Decision in McCullen v. Coakley?


Yesterday the Supreme Court heard arguments in McCullen v. Coakley, which will be one of this term’s major First Amendment cases.  It asks whether the First Amendment is violated by a Massachusetts law creating a 35-foot fixed buffer zone around abortion clinics, in which individuals may not remain except if they are (1) headed toward the clinic or (2) representatives of the clinic. After the arguments, I predict the Massachusetts law is not long for this world, with a likely five justices who would find it to be content-based or insufficiently tailored to the state interest, and possibly more justices who would accept the law with some tweaks to the width or duration of the buffer zone.

One major theme of the arguments was whether the law was narrowly tailored to a content-neutral purpose of preventing congestion around clinic entrances.  All four liberal justices seemed to accept the congestion rationale and were sympathetic to the Commonwealth’s claim that it was too hard to police alternative laws. This was because of the difficulty in predicting when a large group might assemble and obstruct an entrance, proving intent to obstruct, or discerning when conversations were consensual.

Petitioners suggested numerous less-restrictive options, such as injunctions against bad actors, limiting buffer zones to the few busy times like Saturday mornings, or relying on the police to disperse crowds.  They also pointed out the Commonwealth’s failure to take advantage of state and federal laws already prohibiting blocking clinic entrances, intimidation, and assault.  Even Justice Kagan, who generally defended the law, asked why it couldn’t be limited in time or narrowed in space.  Justice Alito offered a host of hypotheticals, ranging from slaughterhouses to businesses under strike, and probed the government to determine what type of history of incidents at a hotly-contested location might justify a ban on speech there.  He never seemed satisfied with the answers, unsurprisingly, given his role at the forefront of the Court’s defense of free speech.

In response to comments from the U.S. Deputy Solicitor General (arguing as an amicus in favor of Massachusetts) suggesting that proving intent would be difficult, Justice Kennedy was incredulous, responding: “Even a dog knows the difference between being stumbled over and being kicked.”  He could not credit the argument that federal prosecutors couldn’t discern intent, in one of many statements suggesting that he will vote to strike down the law.

A second theme was content neutrality, given the law’s exception for clinic workers and volunteers acting in the course of their employment.  Justices Alito, Kennedy, and Scalia all prodded the respondents and the Deputy Solicitor General on this point.  Justice Alito observed that the law would allow a clinic worker to say, “Good morning, this is a safe clinic,” while prohibiting anyone from stating the opposite – a clear content-based distinction. The lawyer for the Commonwealth attempted to frame that contrast as simply an incidental effect of the law, but Justice Kennedy underscored that the consequences of the law were precisely what the Court had to consider. 

Finally, the court explored the degree of burden on speech created by the law.  Justice Scalia highlighted the fact that the petitioners did not want the right to protest, which presumably they could do from 35 feet away, but rather the right to quietly and peacefully converse with women entering the clinic. The Commonwealth’s attorney attempted to protect her argument about the availability of alternatives by saying that the First Amendment does not guarantee you the right to speak in the manner you choose.  That line of argument only seemed to aggravate Justice Kennedy, who viewed “the right to speak on an issue of public importance on a public sidewalk” as central to free speech and pointed out the Commonwealth’s duty to protect lawful speech while addressing its concerns about clinic access.

Given Justice Kennedy’s clear concerns about the Massachusetts law, it seems safe to expect at least a 5-4 decision overturning it.  But there is an outside chance that Justice Kagan could either concur in the judgment to strike down the law on far more limited grounds or that even the Chief Justice, who remained uncharacteristically silent, could attempt to cobble together a coalition to strike down the law in a very limited way.  If that happens, I fear he would sacrifice legal principle and logic for absolute numbers of votes, and would further muddy the waters of First Amendment law.  The more likely outcome, however, is a solid decision that will become the new leading case in this area of law and another reason fans of the First Amendment should love the Roberts Court.

This Day in Liberal Judicial Activism—January 16


2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake. When various religious groups sponsored an advertising campaign offering “healing for homosexuals”, the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.


In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

Irrational “Rational Basis” Review


Just a few quick words on yesterday’s federal district court decision holding that Oklahoma’s definition of marriage in its state constitution violates the federal Constitution.

Federal district judge Terence C. Kern purports to apply rational-basis review (see slip op. at 51)—as Tenth Circuit precedent requires—but his actual analysis bears no conceivable relationship to that highly deferential standard. (I discuss here a ruling by one of the few judges who has properly applied rational-basis review to marriage laws.)

Kern displays his cheerleading earlier in his opinion when, in the course of ruling that a request by two of the plaintiffs (the “Barton couple”) for prospective relief against section 3 of DOMA is moot, he somehow sees fit to pronounce:

Although other plaintiffs received the penultimate [sic] judgment finding DOMA’s definition of marriage unconstitutional, the Barton couple and their counsel are commended for their foresight, courage, and perseverance. [Slip op. at 26 (emphasis added).]

Professor Feldman Doubles Down on Folly


When I blogged here yesterday about Prof. Noah Feldman’s confused assertions that corporations cannot be protected by the freedom of speech and free exercise of religion clauses of the First Amendment, I then immediately tweeted a link to my post and included Prof. Feldman’s Twitter handle.  He of course saw it and—not unexpectedly—responded.  Our exchange unfolded yesterday evening on Twitter in an astonishing fashion.  Here it is, making allowances for the asymmetry of our responses to each other and fleshing out Twitter-style abbreviations (my handle is @MatthewJFranck and his is @NoahRFeldman, if you want to see our exchange on Twitter):

Feldman:  Matt in 900 word essay one doesn’t repeat the arguments of one’s 300 page book in church and state. But I wrote one.

Me: Both things true. But I still wait for an argument that states a recognizable legal principle.

Feldman: Artificial persons indeed. Artificial is the key word. I challenge you to name 1 Framer who favored corporate rights.

Me: Wrong question, as I pointed out in my post @NRO. On what principled basis does corporation have e.g. property rights but not religious liberty?

Feldman: I care about original meaning of Religion clauses!

Me: Me too. Question: Does Bloomberg [Feldman’s publisher] have free press rights? It’s a corporation!

Feldman: No. The individual writers do though.

Me: Therefore New York Times should have lost Sullivan [libel] & Pentagon papers [national security] cases? That follows from your view.

Feldman: [Now answering my question about property rights vs. religious liberty above:] Corporation can hold property but shouldn’t have 14th Amendment or 5th Amendment rights

Me: Hence no due process for corporations? No just compensation under eminent domain? That follows from your view.

What is astonishing is, well, the logical but foolish consistency of Feldman’s responses.  I had said yesterday in my original post that I was “sure Feldman would say” that an “artificial person” such as a corporation “was owed due process under the Fifth Amendment before its property was taken.”  But this appears to be just what he denies!  I say “appears” because Feldman’s last words in our exchanges last night were to deny that incorporated publishers have any First Amendment protection under freedom of the press, and that corporations generally can own property but have no protection of that property under the Fifth and Fourteenth Amendments.  When I pressed him on whether he really meant what would obviously follow from these bald assertions of his—assertions both historically and textually insupportable—he offered no replies.  He still hasn’t.  I expect that even in the liberal legal academy, these are decidedly idiosyncratic views.  Until seeing these tweets of his, I was sure he would have some more “creative” response about why religious freedom can’t be claimed by a corporation, or why some corporations but not others can make such claims, or the claim to freedom of speech.  But no, Professor Feldman went all-in on some pretty outlandish positions.  So if he would like to retract these preposterosities, I am all eyes. . . .

Court Ruling Invites Scathing Criticism?


Today’s Supreme Court ruling in Daimler AG v. Bauman has ingredients that would seem likely to trigger hostile editorials in the liberal media: The majority slams the door shut on plaintiffs who are trying to seek redress for human-rights violations that Daimler’s Argentinian subsidiary allegedly collaborated in during Argentina’s “Dirty War” from 1976 to 1983. Worse, it does so, Justice Sotomayor’s dissenting analysis charges, “on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief, and “it adopts a new rule of constitutional law that is unmoored from decades of precedent.” The end result, according to Sotomayor, is a huge victory for multinational corporations at the expense of the individuals harmed by their actions.

Surely, the author of the majority opinion should prepare for some scathing criticism in the press.

Or perhaps not.

It turns out that the author of the majority opinion is Justice Ginsburg, that all the other justices but Sotomayor join her opinion, and that what I have accurately labeled Sotomayor’s dissenting analysis comes in an opinion concurring in the judgment.

Justice Ginsburg’s opinion reads like a primer on the doctrine of personal jurisdiction. For those readers not interested in studying this basic doctrine, what might be of greater interest is Ginsburg’s manifest impatience with what she evidently regards as Sotomayor’s utter cluelessness. Among Ginsburg’s comments:

“Remarkably, Justice Sotomayor treats specific jurisdiction as though it were barely there” (i.e., barely existed) and “overlooks [a part of] the very passage … on which she relies.”  (14 n. 10.)

Sotomayor “[s]electively refer[s]” to the trial-court record in a case even though “[o]n another day” she recognizes the point she now disputes. (11 n. 8.)

Sotomayor “favors a resolution fit for this day and case only.” (21 n. 20.)

Sotomayor’s assertion that the majority has “strayed from the question on which we granted certiorari to decide an issue not argued below …. is doubly flawed” (as the issue is “fairly encompassed” within the question granted and was argued below). (18 n. 16.)

Sotomayor, I will add, fires back. On my limited review so far, I’m not in a position to assess who has the better of the argument.

What is less surprising is that the Court overturns a Ninth Circuit ruling by Judge Stephen Reinhardt, a ruling that the Ninth Circuit, over the dissent of Judge O’Scannlain and seven of his colleagues, refused to reconsider en banc.

[I’ve slightly expanded the original version of this post.]


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