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This Day in Liberal Judicial Activism—February 24


2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

This Day in Liberal Judicial Activism—February 23


1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat, where she will help fill This Day annals until her retirement in September 2013. (For more on Barkett’s egregious record, see here.)

2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:

I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.


Judge Posner’s Dog Regurgitates


Predictably, given his uninformed and ill-mannered behavior in last week’s oral argument in Notre Dame v. Sebelius, Judge Richard Posner has now delivered himself of an ill-judged opinion in the case.  The first unfortunate feature of it is that it speaks for a majority of his three-judge panel of the Seventh Circuit; Judge David Hamilton, who seemed last week to at least comprehend the university’s arguments, joined him, while Judge Joel Flaum filed a cogent dissent.

The second unfortunate feature of Judge Posner’s opinion is that he appeared to learn nothing from the clear and skillful argument of Notre Dame’s counsel last week.  But then the judge was not truly interested in listening to him, as anyone who listens to the oral argument’s audio recording can discover for himself.

And this leads to the third unfortunate feature of Posner’s opinion, that he cannot even competently describe the contours of the case he is deciding.  Last week, Posner expressed the view that, no matter what Notre Dame did, whether or not it filled out the “self-certification” form the the government requires of religious organizations seeking an “accommodation,” its third-party health insurance administrators Meritain and Aetna (the university self-insures and these companies administer the employee and student plans, respectively) would provide contraceptive services to its employees and students anyway.  Hence there could be no “substantial burden” on Notre Dame in just filling out the form.  The university’s counsel pointed out that this was not so, and cited the relevant regulation, which “states that the self-certification will be treated as a designation of the third-party administrator as plan administrator and claims administrator for contraceptive benefits, pursuant to section 316, and shall supersede any earlier designation.”

This information silenced Posner for a while during the oral argument, but in his opinion he persists in his original error, which requires him to misread the relevant law.  Notre Dame, Posner said, claims

that by filling out the form and sending it to the companies it “triggers” their coverage of the contraception costs and students, and that this makes the university an accomplice in the provision of contraception, in violation of Catholic doctrine . . .

Posner asserts that this is erroneous, and writes:

Federal law, not the religious organization’s signing and mailing the form, requires health-care insurers, along with third-party administrators of self-insured health plans, to cover contraceptive services.  By refusing to fill out the form Notre Dame would subject itself to penalties, but Aetna and Meritain would still be required by federal law to provide the services to the university’s students and employees unless and until their contractual relation with Notre Dame terminated.

Suppose the situation were as Posner describes.  Then it would certainly pass all understanding why the government has a compelling interest in forcing Notre Dame to fill out a form that has absolutely no effect on the actions of its third-party administrator vis-à-vis its insured employees, dependents, and students.  And one wonders whether Posner has noticed that, according to his own account, Aetna and Meritainby virtue of their contract with Notre Dame, would be obliged to supply the contraception.  Not Kaiser, not Blue Cross, but Aetna and Meritain—“unless and until their contractual relation with Notre Dame terminated.”

Keep reading this post . . .

This Day in Liberal Judicial Activism—February 22


1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

Tweeting Away


When it comes to social media (and a lot of other technologies), I’m a late adopter, so the fact that I’m now actively tweeting may be a sign that Twitter is becoming passé. In any event, if you’re interested, my Twitter account is @EdWhelanEPPC. My Facebook page is

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere.  Just fill out the form below.  If you do sign up, you’ll receive an e-mail asking you to confirm. Please note that your e-mail address will not be visible to other folks on the list and that I will make no other use of your e-mail address.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

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“Worst Judge in America”?


In response to my recent post on Judge Richard Posner’s appalling performance at a recent oral argument, a conservative appellate lawyer has e-mailed this comment to me:

I’ve been singing this tune for years. Posner is, bar none, the worst judge in America. He’s totally unprepared, irrational, and abusive. 

I’ve noted before that “a number of appellate lawyers who follow the Seventh Circuit have conveyed to me their astonishment at how sloppy Posner is as a judge.” I’ve had a similar assessment of what I’ve read of his off-the-bench work.

DOJ’s Round-Two Brief in HHS Mandate Cases—Part 2


See Part 1 (on corporate exercise of religion)

Resuming my review of the Obama administration’s recently filed Supreme Court brief, I will address in this post DOJ’s remarkable argument that the HHS mandate does not substantially burden those employers who object on religious grounds to including potentially embryo-killing drugs and devices in their employee health-insurance plans. Once again, we see DOJ trying to smuggle into the threshold inquiry under RFRA the sorts of considerations that are fully taken into account when the Court applies strict scrutiny to the burden that that the HHS mandate imposes.

As Hobby Lobby spells out in its own brief, the affirmative case for the existence of a substantial burden is quite simple: “a fine imposed for adherence to religious beliefs is as direct and obvious a burden as one could imagine.” (Internal quotation marks omitted.) Hobby Lobby faces millions of dollars of fines for not complying with the HHS mandate. (The substantial burden in Wisconsin v. Yoder was a $5 fine.) Enough said.

What does DOJ have to say on this point? In astonishing gobbledygook that Hobby Lobby generously calls a “masterpiece of obfuscation,” DOJ (in both its opening brief in Hobby Lobby (p. 33) and its brief as respondent in Conestoga Wood (p. 37)) asserts that a court may find that a burden on religious exercise is not substantial

in cases where the nature of applicable legal regimes and societal expectations necessarily impose objective outer limits on when an individual can insist on modification of, or heightened justifications for, governmental programs that may offend his beliefs.

In supposed support for its unintelligible assertion, DOJ cites unrelated contexts in which “courts reject claims when a proffered injury is too attenuated or the independent actions of third parties are part of the chain of causation.” But there is nothing at all “attenuated” about a massive fine, and, as I discuss more fully here, the “independent actions of third parties” in a “chain of causation” are irrelevant to the substantial-burden inquiry. What Hobby Lobby and its owners object to is being pressured to engage in what they regard as improper complicity in immoral conduct, and Supreme Court precedent clearly establishes that the Court may not second-guess that judgment in the guise of declaring that a massive fine somehow isn’t a substantial burden.

DOJ weakly claims that the individual owners of an incorporated business “are a step further removed from the employees’ decision” to use the potentially embryo-killing drugs and devices. That claim is irrelevant to the substantial-burden inquiry for the same reasons. What matters for purposes of the substantial-burden inquiry for the individual owners is that the HHS mandate threatens their businesses with massive fines if they don’t direct those businesses, contrary to their own religious convictions, to comply with the mandate. (See Hobby Lobby brief at 30-32.)  

Congratulations to Andrew Brasher for Appointment as Solicitor General of Alabama


Alabama Attorney General Luther Strange recently announced the appointment of Andrew Brasher as solicitor general of Alabama. He has been deputy solicitor general since 2011. Brasher is a graduate of Harvard Law School and served as a law clerk to Judge William H. Pryor Jr. in the Eleventh Circuit. He is known as a strong supporter of limited constitutional government, and he joins a great group of like-minded SGs from all across the country.

We are pleased that Attorney General Luther Strange has recognized the importance of this office and empowered such an excellent candidate. We look forward to seeing the results of Brasher’s advocacy. 

Re: Judge Posner’s Dog Ate His Homework


I entirely concur in Matt’s assessment of Judge Posner’s appalling performance at oral argument last week on Notre Dame’s challenge to the HHS mandate. I’ll add that it was particularly outrageous that Posner told Notre Dame’s attorney, Matthew Kairis, to “stop babbling.” I think that anyone who listens to ten or so minutes of the audio (I listened to the first 45 or so) will recognize that Posner should have aimed that directive at himself.  

By contrast—especially in the face of Posner’s abusive conduct—Kairis’s presentation struck me as clear and concise and impressive.

Judge Posner’s Dog Ate His Homework


And while we are talking about wrestling with other people’s consciences (see below), let us consider the case of Judge Richard Posner of the Seventh Circuit.  Last week, presiding over oral argument in the Notre Dame v. Sebelius case over the HHS mandate, Judge Posner was on display to full advantage—full of himself, but devoid of understanding.  In a colloquy with Matthew Kairis (representing Notre Dame), Posner badgered, interrupted, and demanded yes-or-no answers to questions so badly framed that they had to be either evidence of Posner’s failure to grasp the issues in the case, or of his intention to trap counsel in a corner of some kind.  You can listen to the audio here, with things beginning to heat up around the 10:30 mark.

Here is a sample of Posner’s inability to perceive what is at stake in the case:

Posner: You have no objection to . . . a single-payer system under which all health providers are required to provide all these contraceptives free.

Kairis: If Notre Dame played no role in that system. . . .

Posner: . . . [I]f Notre Dame hadn’t sent copies of the certification form to Aetna and Meritaine [third-party administrators of its health plan], but had simply written a letter to the government, you know to the Internal Revenue Service saying we’re a religious organization, and so we’re just not going to pay for any of these contraceptionves, would you have any quarrel with that?

Kairis: Well, you’re asking me to make . . .

Posner: No, no, answer my question, don’t fence with me.  You answer my question.

Kairis: I’m attempting to, Your Honor.  And you’re asking me to make a religious determination.

Posner: You answer, my question is extremely clear.  Would you have any objection simply to writing a letter to the government saying Notre Dame is a religious university, a Catholic university, and it will not make any financial contribution to contraception?

Kairis: It depends on the context and consequences of that act. . . .

Kairis is exactly right.  First of all, Posner was sketching a scenario that the law does not even allow—“writing a letter to the government” such as he describes—so what was the point of his question?  His persistence in asserting the relevance of it strongly suggested that he thought the law’s requirements amount to no more than such a letter, or could be assimilated to it.  But the HHS mandate requires an institution such as Notre Dame to fill out a form certifying its religious claim to an “accommodation,” and designating an insurer or third-party administrator (for self-insurers such as the university) to provide the contraception.  It can’t just “write a letter” and be finished with this business.  Moreover, Posner never supplied the “context and consequences” of his imaginary scenario involving such a letter, and yet he persisted in rudely demanding that Kairis answer his question yes or no.  Sorry, sometimes “it depends” is the right answer. 

Keep reading this post . . .

Garrett Epps’s Topsy-Turvy Misunderstanding of Religious-Liberty Precedents


In a badly confused essay, the Atlantic’s Garrett Epps contends that Supreme Court precedent compels the conclusion that Hobby Lobby and its owners (and other for-profit businesses challenging the HHS mandate) “have not suffered any injury worthy of redress under the Constitution.” But Epps mistakenly invokes inapplicable precedents and ignores those that plainly govern.

Epps recites Hobby Lobby’s position that it “object[s] to being forced to facilitate abortion by providing abortifacients, and that objection does not turn on the independent decisions of their employees.” But he asserts that the Court “has repeatedly declared this ‘facilitate’ argument categorically false.”

Unfortunately, Epps confuses his categories. Epps is correct that the Court has (soundly) held in the Establishment Clause context that, as Chief Justice Rehnquist put it in the landmark school-choice decision in Zelman v. Simmons-Harris (2002), “our decisions have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of private individuals.” (Citations omitted.) But although Epps slides from recognizing that this is an Establishment Clause principle to claiming that it is a principle that ought to govern the “religious rights of citizens” more broadly, he fails to justify that slide.

The pertinent legal question under the federal Religious Freedom Restoration Act and the Free Exercise Clause is whether the massive fines that an employer faces for providing an employee health plan that does not comply with the HHS mandate substantially burden the employer’s exercise of religion. As Hobby Lobby spells out (pp. 34-44 of its brief), the answer to that question is clearly “yes” under the Court’s precedents. Indeed, “‘a fine imposed for adherence to religious beliefs is as direct and obvious a burden as one could imagine.” (Brief at 36-37.)

Epps evidently imagines that he escapes these precedents (which he doesn’t even acknowledge, much less place in intelligible context for his readers) by pointing out that any decision to use the potentially embryo-killing drugs and devices that Hobby Lobby objects to is the employee’s “independent choice.” His point is irrelevant to the substantial-burden inquiry. What Hobby Lobby and its owners object to is being pressured to engage in what they regard as improper complicity in immoral conduct.

On the question of religious-liberty protection against improper complicity, Supreme Court precedent is entirely against Epps. As Eugene Volokh has spelled out:

[F]or purposes of RFRA, the question isn’t whether a judge or jury agrees with a person’s claim that a law [that] requires him to engage in behavior is sinful — it is whether the person sincerely believes that the behavior is sinful. Likewise, when the person believes that complicity itself is sinful, the question is not whether our secular legal system thinks that he has drawn the right line as to complicity; it is whether he sincerely believes that the complicity is sinful.…

Thomas v. Review Board (1981) is the classic illustration of this. Thomas had been working at a machinery company, and was transferred to a department that produced tank turrets. Thomas refused to work on such military production, and was fired. Under the Court’s Free Exercise Clause jurisprudence, whether Thomas could claim unemployment compensation turns on whether his refusal to work on war production was an exercise of his religion.…

Thomas wasn’t, of course, being required to kill anyone using a tank, to fire a tank gun, to ride in a tank helping the gunner, or to assemble a completed tank. But he thought that the religious prohibition went further than that. Even making tank turrets — though not making steel that would go into a tank — was, he thought, itself sinful complicity with sin.

And the Court held that it was for him, not for the secular courts, to figure out where he thought God wanted him to draw a line. The “substantial burden” requirement didn’t require that the connection be “substantial” enough in the secular legal system’s understanding of complicity.…

Likewise, the Hobby Lobby owners drew a line: Providing health insurance — including through their closely held corporation — that covers what they see as tools for homicide is sinful complicity with sin. Providing salaries that employees may use to buy the same tools, or hiring employees who use those tools, is not.

Many of us might draw the line elsewhere (even if we agreed with the judgment that the potentially implantation-preventing contraceptives are sinful). But it is for the owners of Hobby Lobby to draw the line, and not for the courts to second-guess it. Perhaps there is a compelling interest that justifies the substantial burden that the law imposes on the owners … but courts cannot say that the burden is insubstantial simply because they think the complicity is too attenuated.

It did not matter to the substantial-burden inquiry under Eddie Thomas’s Free Exercise claim that it would be someone else’s “independent choice” to engage in an objectionable military use of the tank turrets he was making. Likewise, it is simply irrelevant to the substantial-burden inquiry under Hobby Lobby’s claim that the actual decision to use embryo-killing drugs or devices would be the “independent choice” of the employee (or of other insured family members).

In other words, Zelman and other cases establish only that, for purposes of the Establishment Clause, the government is not responsible when a private individual chooses to direct money to a religious school. They do not speak at all to the entirely different question, under RFRA and the Free Exercise Clause, of the range of permissible religious beliefs about what constitutes improper complicity in immoral conduct. As the Court made clear in Thomas, that is not a question “within the judicial function and judicial competence.”

In an odd twist near the end, Epps claims that Hobby Lobby is “assert[ing] a right to control employees’ private choice.” But a victory for Hobby Lobby will not change the fact that the decision whether or not to use embryo-killing drugs or devices will remain entirely with the employees. What it will mean is that employers will not be dragooned to be complicit in conduct that violates their religious consciences.  

Wading Into Other People’s Consciences


Yesterday, the latest column by Kirsten Powers at USA Today made quite a splash.  Commenting on a proposed law protecting religious freedom, which was passed by the lower house of the Kansas legislature but killed by the upper house, Powers goes straightaway to hypebole.  This would be like reviving Jim Crow for gay people!  Never mind, as Ryan Anderson pointed out yesterday, that Jim Crow laws coerced businesses to segregate the races and deal with them separarately, while the proposed Kansas law would free businesses and others from state coercion.  Powers mostly directed her fire at those people who, for religious reasons, would prefer not to participate in the “wedding” ceremonies of same-sex couples, as bakers, florists, or photographers, for instance. 

She wrote: “Whether Christians have the legal right to discriminate should be a moot point because Christianity doesn’t prohibit serving a gay couple getting married.”  And she enlisted a couple of Christian pastors who feel about this as she does.  Fine.  But as Ramesh Ponnuru noted, “the key point . . . is that whether the state should compel someone to violate his conscience or protect him in his exercise of it cannot turn on the contents of that conscience.”  And the contents of Kirsten Powers’ conscience, or of her favorite pastors’ consciences, are evidently very different from the consciences of other religious people. 

Andrew Walker met Powers’ argument at First Thoughts yesterday, squarely on the ground Powers herself chose, of the meaning of Christian principles.  And if Christians and others want to argue with one another’s consciences, that’s fine.  (Conscience, after all, isn’t what your “gut” tells you, but what your reason tells you about the application of your most considered moral and religious principles.)

But the government cannot rightly participate in that conversation, about what a Christian (or any other religious) conscience requires of anyone.  As I argued last week at Canon & Culture, when the government “does theology,” as it does whenever it makes a judgment that someone’s sincere claim of conscience is not to be credited as a genuine stand on a religious principle, it violates the freedom of religion.  So, in the HHS mandate cases, when the government argues that the mandate imposes no “substantial burden” on employers who object on religious grounds to providing contraceptives and abortifacients to their employees, and when judges say (as one judge did in November) that the mandate doesn’t require anyone “to do anything that violates the Catholic Church’s disapproval of contraception,” in the very moment when they decide that no one’s religious freedom has been violated, they’ve violated it.

Kirsten Powers has spoken out on behalf of the Little Sisters of the Poor, and rightly so.  But Hobby Lobby and other for-profit employers are in an indistinguishable situation.  And small business owners threatened with the destruction of their livelihoods by a government forcing them to do business in ways that violate their religious beliefs about the sanctity of marriage are in exactly the same position too.  The proposed Kansas legislation was a good-faith attempt to protect the consciences of religious believers.  If such a bill needs improvement, then improve it.  But the liberal reaction to it, as though it were the second coming of Jim Crow, is wildly out of proportion.  And the claim that such beleaguered Christians don’t have to be respected because “that’s not how I would behave as a Christian,” is a substitution of your conscience for theirs, and a license for the invasion of religious freedom by the government.


This Day in Liberal Judicial Activism—February 20


1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)

Dennis Prager on “Redefining Marriage”


The usual clear thinking from Dennis Prager on NRO’s home page today. Some excerpts:

Proponents of same-sex marriage regularly label opponents “radical” and “extremist.” However, given that no society in thousands of years has allowed same-sex marriage, it is, by definition, the proponents of same-sex marriage whose position is radical and extreme. You cannot redefine marriage in a more radical way than allowing members of the same sex to marry. You can argue that this is the moral thing to do. But you cannot argue that it is it not radical.

All these judges have a hubris that is simply breathtaking.… That it is conceit rather than legal reasoning is easily shown when one peruses the opinions of these judges….

“Animal Rights Come Before Religion”


In discussing the HHS mandate, I’ve often used hypotheticals involving kosher delis to illustrate the absurdity of the Obama administration’s position that businesses and their owners lose their religious-liberty rights when they incorporate. If recent news from Denmark is any indication, such hypotheticals might be more real than I imagined.

According to this article, Denmark now bans the religious slaughter of animals for the production of kosher and halal meat. A Danish minister defended the ban on the ground that “animal rights come before religion.” (Never mind that Denmark’s supposed concern for animal rights did not prevent the Copenhagen Zoo from killing a healthy young giraffe zebra and feeding it to the lions in front of a crowd of children.)

Under the Obama administration’s position, corporations and their owners have no cognizable religious-liberty rights, under either the federal Religious Freedom Restoration Act or the Free Exercise Clause, against restrictions imposed directly on the corporations. Thus, if that position were correct, a corporation that sold kosher or halal meats for religious uses could be barred by the federal government from engaging in the religious slaughter of animals central to its business.

Update: According to this comprehensive post by law professor Robert J. Delahunty on the matter, “several other western European nations, including Norway, Sweden, Iceland, Poland and Switzerland,” also ban ritual slaughter. Pointing out that various Nordic countries are exploring a ban on ritual circumcision, Delahunty suggests that these bans are motivated by an “underlying desire to purge Nordic and other European societies of unwelcome Jewish and Muslim populations.”

Update #2: A reader calls to my attention the excellent amicus brief submitted by Nathan Lewin on behalf of the National Jewish Commission on Law and Public Affairs, which more fully develops the points in my closing paragraph.

Patrick Deneen on the Strong Versus the Ordinary


Over the weekend, I ran across this very interesting essay from a month ago by Notre Dame political theorist Patrick J. Deneen. Reflecting on my Ethics and Public Policy Center colleague Yuval Levin’s highly acclaimed new book The Great Debate: Edmund Burke, Thomas Paine, and the Birth of Right and Left, Deneen argues that the “ascendant intellectual figure of our time” is neither Burke nor Paine but John Stuart Mill.

Deneen explains in particular that Burke and Mill were fundamentally opposed on the matter of “Custom”—i.e., “ordinary everyday morality”—with Burke praising it as essential for society and Mill condemning it as the “enemy of human liberty.” A key excerpt:

Society today has been organized around the Millian principle that “everything is allowed.” It is a society organized for the benefit of the strong, as Mill recognized. By contrast, a Burkean society is organized for the benefit of the ordinary—most people who benefit from societal norms that the Great and the Ordinary alike are expected to follow. A society can be shaped for the benefit of most people by emphasizing mainly informal norms and customs that secures the path to flourishing for most human beings; or it can be shaped for the benefit of the extraordinary and powerful by liberating all from the constraint of Custom, mainly through the obliteration of Custom. Our society was once shaped on the basis of the benefit for the many Ordinary; today it is shaped largely for the benefit of the few Strong.

The results of this civilizational transformation are accumulating everywhere we look. The Strong are flourishing: congregating in the wealthy counties around Washington D.C., New York, Boston, Los Angeles, and the like, they participate merrily in a society that disassembles all the old Customs, while their growing wealth insulates them against the ravages of our new economy shorn of the old ways. Beyond their vision, in the “fly-over” country, their countrymen are sinking in the quicksand of their new liberties. Pre-marital sex, abortion, out of wedlock birth, an epidemic of fatherless children, the incapacity to hold down secure employment in a globalized and increasingly automated economy—these and a host of other social ills are the fruits of their liberty. Experiments in living will lead to a few successes and many failures; the latter are part of the price of success for the Strong.

Like Deneen (and Levin), I don’t see how a culture that undermines the lives of ordinary citizens can long survive.

This Day in Liberal Judicial Activism—February 18


1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

A Backgrounder on HHS Mandate and Hobby Lobby


Over the weekend, my friend Professor Anthony Gill (a political scientist at the University of Washington, Seattle) interviewed me for his weekly podcast Research on Religion, supported by Baylor University’s Institute for Studies of Religion.  For about an hour we discussed the religious freedom issues at stake in the Hobby Lobby case that will be argued in the Supreme Court next month, going over the background in First Amendment jurisprudence, the passage of the Religious Freedom Restoration Act, the manner in which the HHS contraception-abortifacient mandate came about, and the prospects ahead in the decision of this important case.  Many readers of this blog will already be familiar with the case and the issues it involves.  But if not–or if you have friends who ask you “what’s that all about?”–this should be a useful primer.  Tony Gill is a terrific interviewer, and we covered a lot of ground.  You can find the podcast here.


This Day in Liberal Judicial Activism—February 15


2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

Ninth Circuit Confirms a 2nd Amendment Right to Carry


As I reported here and here, federal appellate judges around the nation have been inconsistent on the matter of carrying firearms outside the home. Most states in the U.S. have a “shall issue” policy, which means they will issue a permit for carrying a firearm to law-abiding applicants who have cleared a background check and passed a safety course. Some jurisdictions, however, opt for “may issue” policy, which allows them to pick which citizens will enjoy their Second Amendment rights and which will not.

You can add the U.S. Court of Appeals for the Ninth Circuit into the mix, which ruled yesterday that San Diego County could refuse to establish a “shall issue” open-carry policy or a “shall issue” concealed-carry policy, but not both.

In short, the ruling reminds San Diego County that there is a Second Amendment, and that it applies to citizens regardless if they are inside their home or away from it. The three-judge panel noted (internal citations omitted and hyperlink added):

Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.” For one thing, the very risk occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v. Madigan. One needn’t point to statistics to recognize that the prospect of conflict—at least, the sort of conflict for which one would wish to be “armed and ready”—is just as menacing (and likely more so) beyond the front porch as it is in the living room. For that reason, “[t]o speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage.” Id. To be sure, the idea of carrying a gun “in the clothing or in a pocket, for the purpose . . . of being armed and ready,” does not exactly conjure up images of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to start the morning’s coffee, or mother concealing a handgun in her coat before stepping outside to retrieve the mail. Instead, it brings to mind scenes such as a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.

In D.C. v. Heller, the U.S. Supreme Court held that “the inherent right of self-defense has been central to the Second Amendment right.” Here, the Ninth Circuit panel reasoned that the “most acute” need for the Second Amendment described in Heller implies that there is a less acute need outside the home, but a need nonetheless protected by our Constitution.

The Ninth Circuit notes the very relevant holding in Moore, namely that “to confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald [v City of Chicago].

Many of the courts that have not upheld this right fail to give much of a substantive basis for their ruling. In 2011, for example, the Fourth Circuit sidestepped the question entirely in U.S. v. Masciandaro, stating, “We think it prudent to await direction” from the Supreme Court.

The Ninth Circuit panel also noted that, because Heller and McDonald focus on the self-defense aspect of the Second Amendment, their decision yesterday is cabined to the self-defense issue before them and is not to be used to suggest the outer limit of this Constitutional right. Readers may be interested to know that, in a dissent when the Ninth Circuit rejected an en banc hearing to review Silveria v. Lockyer, Judge Alex Kozinski offered a possible answer to the outer limit of the Second Amendment:

The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed—where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.

I will keep Bench Memos readers up to date on developments on this case, as further appeals seem likely. In the meantime, readers can bookmark this excellent rundown over at the Volokh Conspiracy on how different courts have ruled on the matter of firearms outside the home. As for yesterday’s decision, you can read the whole 127-page ruling here


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