Bench Memos

NRO’s home for judicial news and analysis.

C. Boyden Gray on the D.C. Circuit.


C. Boyden Gray has a great op-ed on President Obama’s D.C. Circuit Court packing plan. I thought Gray’s argument that it will hurt collegiality on the court was particularly insightful:

Even worse, the president’s recent nomination spree risks politicizing an institution that is — and should be — above politics. More than any other court, the D.C. Circuit considers petitions for review of federal agency rules and orders — some of the most important and least glamorous cases in the federal judiciary. To its credit, the court has, for the past two decades at least, fulfilled this important role thoughtfully, quietly, and with collegiality, a trait that manifests itself, [former D.C. Circuit Chief] Judge Harry Edwards has written, when “judges have a common interest … in getting the law right,” and as a result, “are willing to listen, persuade and be persuaded, all in an atmosphere of civility and respect.” . . .

That collegiality would likely be lost if the Senate were to confirm three more unneeded judges. First, judges appointed to prop up the president’s regulatory agenda historically end up actually doing so out of misplaced loyalty. In his early years on the court, Judge Edwards “witnessed occasions when ideology took over and effectively destroyed collegiality, because the confirmation process ‘promoted’ ideological commitment.” As proponents of the current nominations have noted, it is no accident that Mr. Obama’s recent nomination barrage followed his promise that “if Congress won’t act” on climate change, “I will.”

But more fundamentally, bloating the bench would undermine the close working relationship that contributes to collegiality. “[S]maller courts,” Judge Edwards has noted, “tend to be more collegial.” Absent a growing caseload, it is hard to justify the risk of factionalism inherent in larger courts, like the famously dysfunctional Sixth Circuit with its 28 active and senior judges. It would be a tragedy to lose the D.C. Circuit’s collegiality and objectivity that have served our country so well since Judge Edwards‘ reforms two decades ago.

Read the whole piece

Reply to Gerald Early


A few weeks ago, I objected to Washington University professor Gerald Early’s “ugly and outrageous assertion of a ‘common conservative belief that blacks are inherently dysfunctional.’” Here is Early’s fuller passage (from his review of Randall Kennedy’s For Discrimination):

Moreover, even if the common conservative belief that blacks are inherently dysfunctional is true, how would that fact make them immune to being wronged or damaged? Here, the conservatives seem simply to be retreading “the prostitute cannot be raped” argument as a defense for the hatred that affirmative action is meant to defang.

As Roger Clegg observed in his follow-on post, “it’s hard for me to understand these two sentences as saying anything except: ‘Conservatives are racist.’”

In the second half of this essay, Professor Early states that my objection “puzzles [him] greatly,” and he proceeds to explain why he chose the words he did. I don’t find his explanation satisfactory. A few comments:

1. Early states, “I purposely did not use the phrase ‘innately inferior’ or ‘innately dysfunctional’ because I did not want to wrongly ascribe to conservatives the idea that they believe that blacks are biologically inferior nor did I want to accuse them of racism.” I do not see how the phrase “inherently dysfunctional” is meaningfully different from either of the phrases that Early chose not to use.

2. Early shifts to a “general characterization of black culture by conservatives.” Had he originally written of a “common conservative belief that black culture is inherently dysfunctional,” I think that he still would have swept too broadly, as I don’t know that many conservatives believe that there is a single and uniform black culture. That said, I wouldn’t dispute that there is a common conservative belief that there is a black subculture (what some might call the inner-city black culture) that is dysfunctional. For what it’s worth, there is also a common conservative belief that there are white subcultures that are dysfunctional in similar ways. (Early mentions Charles Murray; Murray’s Fishtown illustrates my last point.)

3. Early ends by asserting that he “accused conservatives of believing something they surely must believe if their political position is going to make any sense at all.” I confess that I don’t understand his point at all. In his review, Early writes:

The right is opposed to affirmative action on the grounds that it denies or perverts merit; that it emphasizes the group over the individual; that it generates reverse discrimination, which is pernicious; that it insists on equal results instead of equal opportunity, a goal that is patently un-American and can be realized only through egregious social engineering; and that it intensifies racial consciousness by creating a compensatory racial caste system as a form of bourgeois patronage.

I don’t see how any of these objections to racial preferences depends on any assessment that there exists a black culture that is dysfunctional. (Nor, contrary to Early’s second sentence in the objectionable passage, do I see how they involve a “defense” of “hatred.”)


Quota Quibbling?


This New York Times article contains this surprising passage:

The Congressional Black Caucus has been critical of Republicans in Congress who are holding up judicial nominations, including for a number of black judges. The group said that out of 787 federal positions, only 95 are held by black judges.

Insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim. For the sake of argument, let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of blacks who are lawyers lawyers who are black—apparently in the four to five percent range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience**).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of federal judgeships. That would suggest a trivial disparity (again, even using a very favorable benchmark). Indeed, if the number of black judges grows by a mere four or five, blacks would be “overrepresented” on the federal judiciary.*

Live by the quota, die by the quota?

* Addendum: I now gather that the “787 federal positions” that the Congressional Black Caucus is counting do not include existing vacancies. The vacancies provide some additional headroom for more black judges before the percentage-of-population quota target would be surpassed.

** 9/26: Oops. In re-reading this, I see that I misworded things. In addition to deleting the struck-through words, I have added the italicized words.


Professor Barron Nominated, Hughes Confirmed


This afternoon President Obama nominated Harvard Law School Professor David Barron to a seat on the U.S. Court of Appeals for the First Circuit.  Barron previously served in the Obama Administration as the Acting Assistant Attorney General for the Office of Legal Counsel.  In other judicial confirmination news, the Senate unanimoulsy confirmed Justice Department career attorney Todd Hughes to the U.S. Court of Appeals for the Federal Circuit.

Judge Richard Roberts’s Troubling Confusion


Is political terrorism wrong because it is an ineffective means of pursuing a legitimate political goal? Or, in a free society, is it always wrong? From the extraordinary comments that he made last week, it would appear that Richard W. Roberts, the chief judge of the federal district court in Washington, D.C., strongly inclines towards the former position.

Judge Roberts’s comments came at the sentencing hearing for Floyd Lee Corkins II, who in August 2012 attacked the Family Research Council office in Washington, D.C. As this Washington Post article sums it up, Corkins “had plotted to kill ‘as many people as possible’ at conservative organizations that he viewed as anti-gay.” Corkins’s rampage was cut short by the heroic actions of Leonardo Johnson, the Family Research Council guard who was shot by Corkins but who nonetheless managed to subdue him.

Corkins pled guilty to three counts, including a charge under District of Columbia municipal law of committing an act of terrorism while armed. In the course of sentencing Corkins to 25 years in prison, Judge Roberts addressed these comments to Corkins:

You are not alone in criticizing those who oppose gay rights, but a man killing opponents does not change the opponents’ minds. It does not open their hearts. It does not bring about gay rights. If anything, it makes opponents more entrenched. If anything, it feeds whatever moral arsenal they perceive to fight against gay rights. Many indications show the opponents losing favor, but it has not been because of anyone killing them.

When a president thoughtfully spoke up, it shook loose many of the entrenched opponents in his faith community. When some women and men highly revered in America chose to come out, that added far more support for gay rights than murder ever will. That’s how we affect positive change in this country, not by shootings. [Transcript, 43:13-44:1]

Roberts’s comments strike me as grossly ill-conceived in two respects.

First, Roberts somehow thinks it proper to volunteer that he shares Corkins’s political outlook on “gay rights.” (If the first paragraph left any doubt about Roberts’s views, his references in the second paragraph to how “a president thoughtfully spoke up” and to “positive change” ought to eliminate that doubt.) Roberts is of course entitled to hold whatever views he wants, on this or any other issue, in his personal capacity. But what legitimate purpose is there to highlight his views (one way or the other) on the very matter that motivated Corkins’s terrorism? The only effect is to invite suspicion that Roberts rejected the federal government’s Department of Justice’s) recommended sentence of 45 years because he sympathizes with Corkins’s cause.

If you’re unpersuaded, consider this analogous hypothetical: A judge sentencing an anti-abortion protester for acts of violence volunteers that he is pro-life and then imposes a sentence that is barely half that proposed by prosecutors.

Second, the argument that Roberts offers against pro-gay terrorism is remarkably weak and dependent on his own contestable assessments about how to “affect positive change.” Someone who is contemplating terrorism (in support of whatever cause) may be more interested in intimidating or punishing opponents than in persuading them. And if he’s not the president or someone else “highly revered,” he may well conclude that he needs to use the tools at his disposal. Why not just say flatly that resorting to violence to pursue a political goal is always wrong (irrespective whether it’s effective)?

In fairness to Roberts, I will note that a paragraph later he did state: “Political activism is civic engagement. Killing human beings is not political activism, it is criminal behavior.” But even that statement neglects the distinctive harm that political terrorism inflicts, a harm that the federal prosecutors spelled out. As one prosecutor put it:

[Corkins’s] purpose was not just to attack individuals and kill them, he was attacking an institution, an entity that was involved in free and open political discourse at the core of our society, and he was going to attack that entity in the nation’s capital, and that is the definition of terror. [12:20-25]

In the words of the other prosecutor:

The core of the political system and the law here is to protect the right to engage in free speech and open debate about political views without fear of violence, and the defendant showed the ultimate disrespect for the law here when he chose not to engage in debate in a peaceful manner, but rather take a shortcut and resort straight to violence in order to intimidate others.… [26:19-25]

Indeed, Corkins himself, in his brief statement, declared that “I also realize that it’s not okay to result [sic] to violence to gain a political end.”  [42:16-18] What a shame that Roberts doesn’t see, or at least didn’t state, the matter as clearly.


This Day in Liberal Judicial Activism—September 24


1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit. 

This Day in Liberal Judicial Activism—September 22


2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

This Day in Liberal Judicial Activism—September 20


1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional. Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”  

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.” 

Pillard Nomination Reported to Senate Floor


As this BLT post details, the Senate Judiciary Committee today, by a straight party-line vote of 10-8, favorably reported to the full Senate President Obama’s nomination of Georgetown law professor Cornelia Pillard to a D.C. Circuit vacancy. (My case against the Pillard nomination can be found in various links in this post; see also NRO’s editorial today against the nomination.)

This Day in Liberal Judicial Activism—September 19


1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

Sloppy Sixth Circuit Ruling Rejects Challenge to HHS Mandate


As I’ve discussed, the litigation over the HHS mandate has already generated a conflict between the Third Circuit and the Tenth Circuit over whether for-profit corporations have the capacity to engage in religious exercise for purposes of protections under the federal Religious Freedom Restoration Act and the First Amendment. In a muddled ruling yesterday (in Autocam Corp. v. Sebelius), a Sixth Circuit panel sided with the Third Circuit, albeit on different grounds: Whereas the Third Circuit had ruled that “a for-profit, secular corporation cannot engage in the exercise of religion” (and therefore did not address the question “whether such a corporation is a ‘person’ under the RFRA”), the Sixth Circuit ruled that “corporations primarily organized for secular, profit-seeking purposes” are not “persons” under RFRA.

The Sixth Circuit panel’s reasoning, in an opinion by Judge Julia Smith Gibbons (a Bush 43 appointee), is incoherent. As Gibbons recognizes, the Dictionary Act (1 U.S.C. § 1) provides that the word “person” includes corporations “unless the context indicates otherwise.” Gibbons further recognizes that “many religious groups organized under the corporate form have made successful Free Exercise Clause or RFRA claims,” and she purports “not [to] question those decisions” (which include Supreme Court decisions). But those decisions mean that the word “person” does include corporations under RFRA, and there is no textual basis for reading the Dictionary Act to say that “person” includes some corporations but not others. (That presumably is why the Third Circuit instead jumped to the logically subsequent argument that business corporations cannot exercise religion within the meaning of RFRA.)

Gibbons’s conclusion that the members of the Kennedy family who own the shares of the corporations and who operate as its directors and officers lack standing to challenge the HHS mandate is also sloppy. The fact that the law imposes fiduciary duties on directors and officers to operate the corporation in accordance with governing law ought to cut in favor of the family members’ standing in those capacities, not against.

To illustrate the absurdity of the Sixth Circuit’s holdings, consider this hypothetical: A family-owned corporation, consistent with the family members’ religious beliefs, owns and operates a deli that abides by kosher rules. An HHS pork mandate requires all food providers to serve pork. Under the Sixth Circuit’s analysis, the corporation would have no RFRA claim because it is not a “person,” and the family members wouldn’t have standing to invoke any protections under RFRA even though the HHS pork mandate requires them to violate their religious beliefs in operating their deli.

When, as seems likely, the Supreme Court grants review on the question whether a for-profit corporation has rights under RFRA, it should also address the intertwined question whether the individuals who own the shares of a closely held corporation, who sit on its board of directors (or who similarly exercise ultimate policymaking authority for the corporation), or who act as its officers have rights under RFRA by virtue of any of those roles.

Young Professionals for Mark Obenshain, Va. Candidate for Attorney General


This Thursday evening a group of young professionals will be co-hosting a happy hour for Mark Obenshain, candidate for attorney general of Virginia.

You have probably heard a lot less about this race than the race for governor, but in some ways this race is even more important. As Fred Barnes detailed in a recent Weekly Standard cover story, the current set of conservative and libertarian attorneys general “have done more than Republicans in Congress, statehouses, or anywhere else to block, cripple, undermine, or weaken Obama’s initiatives.”

Obeinshain has the capacity to join those AGs in the fight for limited, constitutional government, but getting there won’t be a cakewalk. The 2005 race was decided by around 300 votes, out of nearly 2,000,000 cast, and this is shaping up to be a challenging year for Republicans in Virginia

So, if you are a young professional with any interest in legal-policy matters, I encourage you to attend the event and help spread the word about Virginia’s next AG. The hosts are asking $25 per person / $250 host committee / $500 sponsor.

“Nation’s Judges Appeal to Obama for Help in Budget Fight”


So reports this National Law Journal article. Didn’t the judges learn anything about President Obama’s “help” from the Syria debacle? Perhaps they’d be better off enlisting Vladimir Putin’s assistance.

The Oklahoma Abortion Case


In June, the Supreme Court granted review of an Oklahoma supreme court ruling that struck down a state law that prohibited the non-FDA-approved use of abortion-inducing drugs. At the same time, the Court certified to the Oklahoma supreme court two questions about the scope of the state law. Whether the Court decides the merits of the case in the upcoming term will depend on how quickly the Oklahoma supreme court answers those questions and on how it answers them.

As the first contribution to a SCOTUSblog symposium on the case (Cline v. Oklahoma Coalition for Reproductive Justice), Notre Dame law professor Carter Snead powerfully argues that the case “can be resolved squarely within the principles set forth by Justice Kennedy in Gonzales [v. Carhart],” the 2007 ruling holding that the federal partial-birth abortion law is constitutionally permissible. (Among his many roles, I’m very pleased to have Carter as a colleague of mine at the Ethics and Public Policy Center.) Carter also concludes that “only the most implausible and tortured reading of the challenged statute” by the Oklahoma supreme court would yield answers to the certified questions that would undercut the case for Supreme Court review. Here is his closing paragraph:

Assuming that the Oklahoma Court adopts the most reasonable interpretation of the challenged law, and assuming further that the U.S. Supreme Court decides Cline on the merits, a straightforward application of Gonzales would require reversal. Oklahoma, like any state, is entitled to regulate the practice of medicine — including abortion — for the purpose of safeguarding the health of the people within its borders. This is a fortiori true when the state legislature’s judgment is supported by substantial (albeit contested) medical authority — including the research relied on by the FDA in the first instance. The case for sustaining the law is clearer still where, as here, its effect is merely to close a two-week window (fifty to sixty-three days’ gestation) during which abortion-inducing drugs may be used, and equally safe (arguably safer) options are available. Failure to reverse the Oklahoma Supreme Court here would reinstate the “abortionist’s veto” that Justice Kennedy rightly rejected in Gonzales and constrict the state’s authority to pursue laws meant to promote the health and welfare of its people.

(Last week on Bench Memos, Carrie Severino discussed Linda Greenhouse’s column about this case.)

This Day in Liberal Judicial Activism—September 17


A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed. 

First Amendment Rights at Stake in McCullen v. Coakley


My organization, the Judicial Education Project, has filed a Supreme Court amicae curiae brief supporting the petitioners in McCullen v. Coakley. The case involves petitioners’ challenge of a Massachusetts statute that establishes a 35-foot fixed buffer zone around abortion clinics. The viewpoint-discriminatory statute violates the First Amendment by prohibiting communications within the buffer zone, while exempting abortion clinic employees and agents. JEP filed the brief on behalf of twelve women who regret their decisions to have an abortion and were misled by abortion-clinic staff members about abortion’s consequences.

Read the whole brief

“A 5-4 Conservative Majority”???


No matter how many momentous losses conservatives suffer in the Supreme Court, liberal commentators somehow persist in asserting, as Garrett Epps does in this essay, that “we have a Court with a 5–4 conservative majority.”

What we instead have, alas, is a Court on which, in 5-4 cases, Justice Anthony Kennedy is most often the decisive vote. Kennedy sometimes joins with the liberals and sometimes with the conservatives, but (as I discuss here and here) it is ludicrous to describe his general jurisprudential approach as conservative. In short, we have a very divided 4-1-4 Court.

This Day in Liberal Judicial Activism—September 15


2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

This Day in Liberal Judicial Activism—September 12


2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.” 

Relieving the Heavy Federal Judicial Caseload


According to this article, the Senate Judiciary Committee held a hearing yesterday at which federal judges “spoke about the thankless grind of overwhelming caseloads.” Senator Christopher Coons’s proposed remedy is to add 91 new federal judgeships.

Adding new judges would be one way to relieve the caseload. But, given our country’s long-term fiscal problems, I’d suggest that a better way is to reduce the number of cases in the federal system by eliminating federal causes of action (especially those that are duplicative of state causes of action) and possibly by restricting jurisdiction. I wish that Congress would give some careful thought to this alternative.


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