Bench Memos

NRO’s home for judicial news and analysis.

New Biography of Justice Thomas


Reviews of a new biography of Justice Clarence Thomas—Supreme Discomfort:  The Divided Soul of Clarence Thomas, by Washington Post reporters Kevin Merida and Michael Fletcher—are now coming out.  My own review of the book will appear in the next issue of National Review (bearing a cover date of May 14 and being mailed out later this week).  For now, I will say only that although the book is interesting in a number of respects, it suffers from some serious flaws.

Tags: Whelan

Judicial Restraint and “Facial” Challenges


On NRO today is my essay “The Face-Off Over Partial-Birth Abortion”.  As I explain there: 

Underlying the divide between Justice Kennedy’s majority opinion and Justice Ginsburg’s dissent are two very different approaches to assessing so-called “facial” challenges to abortion regulations. The difference between these approaches reveals the enormous gap between the majority’s sound exercise of judicial restraint and the dissent’s aggressive judicial activism. 

The bottom line is that even if there are special circumstances in which the partial-birth abortion ban would pose a genuine threat to a mother’s health (and even if one assumes that the application of the ban in those circumstances would be unconstitutional), that would provide no basis for striking down the entire law.  On the facial challenge to the partial-birth abortion ban, the majority position upholding the ban should have been a unanimous slam-dunk winner.

Tags: Whelan


This Week in Liberal Judicial Activism—Week of April 23


Apr. 25      1906—William J. Brennan, Jr., is born in Newark, New Jersey.  (For more on Brennan, see This Week entries for March 19 and March 22.)


                  1996—More Newark:  The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego.  A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.” 

Six weeks later, Judge Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton.  In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign.  (How could anyone withstand Bob Dole’s withering criticisms?)  In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.  (Both letters are here.  See This Week entries for Feb. 6 and Feb. 14 for more on This Week all-star Sarokin.)


Apr. 26      1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods.  There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter.  Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist.  Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors.  But after Brewington stabs Majors, Middlebrooks does so as well.  Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death.  On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence.  In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution.  (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.)   Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally:  “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.”  Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit.  Meanwhile, on remand, Middlebrooks is again sentenced to death.  In 1999—twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence. 


Apr. 29      1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson.  Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.


For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism

The Perennial Publius, part 63


The Senate’s small numbers and long terms will make it, Madison says in Federalist No. 63, the “select and stable member of the government.”  And a large part of democracy’s problem of instability–and of injustice itself–lies in the people themselves:

[S]uch an institution may be sometimes necessary, as a defence to the people against their own temporary errors and delusions.  As the cool and deliberate sense of the community ought in all governments, and actually will in all free governments ultimately prevail over the views of its rulers; so there are particular moments in public affairs, when the people stimulated by some irregular passion, or some illicit advantage, or misled by the artful representations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.  In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice and truth, can regain their authority over the public mind?

It is a fair question whether the Senate still performs this function as it was designed to do.  Senators are now popularly elected, and in many respects Senate elections are more competitive than House elections, where careerist incumbents win reelection at astonishing rates–making the House look like the more “stable” chamber in some respects.  And the Senate’s claim to be the “world’s greatest deliberative body,” as its members and admirers like to call it, is pretty thin in an age when staffers do increasing amounts of the legislative work, and when the action on the floor looks like a simulacrum of debate rather than the real thing.  Byrd’s retort to McConnell isn’t exactly Webster’s reply to Hayne.

Still, the two houses of Congress differ so markedly in their character that they serve one of the functions of bicameralism noted by Publius–the division of lawmaking between two institutions that are structured differently, respond to different impulses and incentives, and have developed different habits and customs.  They filter public opinion differently–but one important thing is that they do filter it.  After a review of ancient republics showing the benefits of stabilizing assemblies such as he hopes the Senate will be, Madison makes this very interesting remark:

[T]he principle of representation was neither unknown to the antients, nor wholly overlooked in their political consitutions.  The true distinction between these and the American governments lies in the total exclusion of the people in their collective capacity from any share in the latter, and not in the total exclusion of the representatives of the people, from the adminstration of the former. (Madison’s italics)

Yes, that’s a confusing sentence.  Madison’s point is that in the ancient republics, representative assemblies were used, but as supplements to the primary means of legislating, which was the assembly of all the citizens in a direct democracy.  The Americans, says Madison, have wisely eliminated that imprudent way of governing, totally excluding “the people in their collective capacity” from any regular governing function other than the election of those who will actually make laws and policies.

No direct democracy for Madison, in other words.  This wisdom of his would be rejected by the “reformers” of the early twentieth century, who invented the folly known as the referendum.

(For explanation of this recurring feature, see here.)

Still More on: “Painfully Awkward”? No, Just Plain Stupid


From Geoff Stone’s opening paragraph:

Gonzales reversed an earlier decision, Stenberg v. Carhart, in which the Court had held a virtually identical state law unconstitutional, primarily because it failed to include an exception to protect the health of the woman.  In the majority’s view, the critical difference was that in enacting the federal law Congress made several findings to support the legislation. The majority accepted  those findings even though, as Justice Ginsburg observed in an unusually scathing dissent, those findings were nothing more than political nonsense.  

This is a laughably incompetent account of the case:  Apart from the fact that Gonzales did not “reverse[]” Stenberg, the statement of the majority’s use of the findings is flatly wrong.  A prospective law student who summarized the case this way should be encouraged to pursue another profession.  The fact that a highly respected professor at one of the best law schools in the country could produce this account is stunning.

Tags: Whelan


Re: Intellectually Bankrupt


Thanks, Ed, for the postings (beginning here) about the intentionally offensive and unintentionally hilarious Geoffrey Stone.  It would follow from Stone’s argument, if he were right about what drives the five justices in the Carhart majority, that adherence to the Catholic faith (at least in what Stone would likely call its “conservative” form) would be a guarantee that one understands the Constitution properly.  But I don’t think that is what he meant to argue.

More on: “Painfully Awkward”? No, Just Plain Stupid


It seems highly likely that Geoff Stone has not even read the majority opinion.  He clearly believes that the majority accepted and relied on the congressional findings that he finds so objectionable.  But in fact the majority states that some of the findings “are factually inaccurate” (whether because they were inaccurate at the time or have been superseded).  Indeed, the majority specifically notes (slip op. at 35-36, Professor Stone, in case you care to read the opinion) that some medical schools do teach intact D&E and that there is not a medical consensus that intact D&E is never medically necessary.

Tags: Whelan

Intellectually Bankrupt


This isn’t the first time that Geoffrey Stone has been the poster boy for intellectual bankruptcy.  See here and here.

Tags: Whelan

Re: “Painfully Awkward”? No, Just Plain Stupid


A sign of the care that Geoffrey Stone put into his eruption is his assertion that “many laws [sic] schools … teach intact D & E.”  I know that the pro-abortion pressure is overwhelming at elite law schools, but not even I believe that students are now being taught how to do abortions.

Tags: Whelan

“Painfully Awkward”? No, Just Plain Stupid


Professor Geoffrey Stone of the University of Chicago Law School has just posted his profoundly confused thoughts on the partial-birth abortion case.  Stone first misrepresents the ruling in the case.  If indeed there are exceptional circumstances in which partial-birth abortion is the safest method of abortion (the point, contrary to what Stone asserts, is hotly contested and, given the remarkable series of lies that opponents of the legislation have offered, their credibility is highly suspect), it is open to those so believing to show that and to carve out exceptions.  Those attacking the law tried to use a facial challenge to invalidate the law in its entirety. 


Stone then asks what explains the decision.  His answer:  The “painfully awkward observation” that “[a]ll five justices in the majority are Catholic” and “have failed to respect the fundamental difference between religious belief and morality.”  His charge is as offensive as it is baseless.  Consider:


1.  The five justices in the majority were not imposing their own religious beliefs.  They were deferring to the entirely reasonable moral judgments of the American people, manifested through bipartisan majorities in Congress.  Justice Kennedy’s majority opinion explains that the law serves the proper governmental objective of expressing respect for the dignity of human life and of protecting the integrity of the medical profession.  Stone may well disagree with those objectives, and he may well disagree that the law serves them, but it is absurd for him to contend that the five justices are imposing their own religious views when they let the democratically enacted law take effect.


2.  It is the four justices in dissent who have a consistent record of misconstruing the Constitution to impose their own substantive policy preferences.  Stone claims that the dissenters “all voted in accord with settled precedent” but that precedent is neither settled nor faithful to the Constitution.


3.  Stone presents his former boss, Justice Brennan, as a model of a Catholic justice

“separat[ing] his personal religious views from his views as a justice.”  From Stone’s account, one would think that Brennan reluctantly joined Roe v. Wade because the Constitution compelled him to.  That account is ridiculous at many levels.  Whatever Brennan’s “personal religious views,” he plainly favored abortion as a matter of policy, and it’s clear that he was the moving force behind the ludicrous Roe opinion.


Tags: Whelan

Weber Grilled


Like Ed Whelan, I recommend Walter Weber’s essay here at NRO today on the Gonzales v. Carhart ruling.  I have just one quibble, where Mr. Weber is more certain about something than I would be.  He suggests that a sea change has occurred in abortion jurisprudence, with Justice Kennedy’s opinion placing the Court on record against future “facial” challenges to abortion statutes, leaving only “as applied” challenges available to plaintiffs claiming infringement of their rights.  Weber writes as follows (interpolation in brackets his, not mine): that “the Court said such ‘facial’ challenges ‘should not [be] entertained in the first instance.’ Rather, an ‘as-applied challenge’ is the ‘proper means’ to address concerns about particular circumstances that may threaten harm to some women.”

But Mr. Weber’s “[be]” is a change of verb tense that makes a difference.  Here is Kennedy in the original (but with my italics):

The considerations we have discussed support our further determination that these facial attacks should not have been entertained in the first instance. In these circumstances the proper means to consider exceptions is by as-applied challenge.

I wish Weber were right about the sweeping elimination of all future facial challenges to abortion laws.  But looking at Kennedy’s words for myself, I don’t think I can say that.  In this case, regarding this kind of statute, the facial challenge “should not have been entertained.”  This does not foreclose all such attacks in future on different kinds of abortion statutes in different circumstances.  When they might be appropriate is admittedly hard to say.  But they are not, I think, out of the question entirely.

Me and Dr. Bennett


I neglected to mention here last night or early this morning that I would be on Bill Bennett’s “Morning in America” program today.  Lucky for me and both of my fans, and thanks to Bill and Seth and Jeff, my interview is featured for a little while on the homepage of the show here.  Look in the center of the page under “Interview Highlights” and you can click on my name.  We talked about Wednesday’s partial birth abortion ruling, and about events in nearby Blacksburg.

Re: Biased Wall Street Journal Article on Partial-Birth Ruling


A couple corrections/clarifications regarding my post earlier today:


1.  I stated that the WSJ article never explains to the reader what partial-birth abortion is.  At the end of its 15th paragraph, the article states that the federal law was more specific than the Nebraska law that was struck down in 2000, as it defines the “procedure … as one in which a fetus is killed after being partially extracted from the uterus.”  I’m not sure how much this conveys to the reader, but it is more than nothing.


2.  I stated that the article’s assertion that “the court’s majority embraced much of the vocabulary of the antiabortion movement” is “straight from Ginsburg’s dissent.”  While the assertion is similar to what Ginsburg says, I shouldn’t have alleged that it came from her dissent.  I believe that the assertion is overstated, but it is one that any number of readers of the opinion would plausibly arrive at on their own.


More generally, while I stand by my position that the article is slanted and misleading, I do not mean to call the reporter’s good faith into question.  Among other things, writing on deadline on a topic on which neutral ground is difficult to find is not an easy or enviable task.

Tags: Whelan

More on PBA ruling


On NRO today, experienced pro-life litigator Walter Weber has an excellent essay that explains in lay terms some of the key aspects of the partial-birth ruling, including the facial vs. as-applied point I raised in a recent post.

Tags: Whelan

Biased Wall Street Journal Article on Partial-Birth Ruling


Especially when abortion is involved, I fully expect biased articles in places like the New York Times.  But I’m still surprised to find how widespread the bias is.


This article by Jess Bravin in yesterday’s Wall Street Journal is a prime example.  Beyond the fact that the article somehow never explains to the reader what “so-called partial-birth abortions” are, it falsely suggests that the partial-birth law had only partisan Republican support and it grossly exaggerates the bearing of the case on the broader question of Roe v. Wade.  Consider some of the article’s assertions:


1.  The law “was signed by President Bush in 2003,” and the “ruling marks a rare victory for the administration.”  No mention of the significant support in Congress from Democrats and/or usual supporters of abortion, including, for example, former Democratic leader Tom Daschle, current Democratic leader Harry Reid, and Senate Judiciary Committee chairman Pat Leahy. 


2.  “Senate Majority Leader Harry Reid, a Nevada Democrat who personally opposes abortion rights, said the decision shows why ‘a lot of us wish that Alito weren’t there and O’Connor were there.’”  The innocent reader is given the false impression that Reid must have opposed the law (which must have been so extreme that usual pro-lifers didn’t even support it).  An accurate accounting would instead have raised serious questions about the intellect and integrity of Harry Reid.


3.  “[T]he court’s majority embraced much of the vocabulary of the antiabortion movement.”  This charge is straight from Ginsburg’s dissent (and presumably relies on her same mistaken characterization of the term “abortion doctor”).


4.  The court “stopped short of overruling Roe v. Wade.”  Yes, about 10,000 miles short.


5.  “Justice Kennedy … has never challenged the core holding of Roe.”  That’s quite an understatement, as he has done exactly the opposite, embracing in Planned Parenthood v. Casey what he and others described as the “essential holding” of Roe.  The innocent reader would have no clue of this.


The Wall Street Journal’s readers are entitled to better than this.

Tags: Whelan

The Perennial Publius, part 62


Of the four great governing institutions called into being by the Constitution–the two houses of Congress and the other two branches of government–the one to which the fewest Federalist essays are devoted is the Senate.  There are just five such essays, Nos. 62 to 66.  Although its democratic credentials are more open to question than those of the House of Representatives, the Senate seems to have occasioned less criticism and concern on the part of the Constitution’s opponents.  Probably that is because the equality of representation for every state, and the (original) method of state legislatures electing senators, tracked with prior experience under the Articles of Confederation.  A reader of the new Constitution who went looking for where it honors the traditional understanding of federalism and state sovereignty would find it in the Senate.  In that respect, the Senate needs the least defending.

If there are just five essays on the Senate, however, what essays they are!  All three authors–Madison, Hamilton, even Jay–contribute their thoughts on this institution (the only one of which that is true).  And the character of the argument, particularly in the first two essays, by Madison, is remarkable.  He bluntly calls the readers’ attention in No. 62 to the shortcomings of representative institutions in their own experience:

A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained.  Some governments are deficient in both these qualities: Most governments are deficient in the first.  I scruple not to assert that in the American governments [i.e., the states], too little attention has been paid to the last.  The federal constitution avoids this error . . .

The Senate, Madison argues, makes a signal contribution to the attainment of good government, and it does so precisely by being constituted to maintain some distance from the “sudden and violent passions” that can characterize the most democratic institutions.  The contribution of the Senate is variously described by Madison as “wisdom and stability” and as “order and stability.”  The evil it seeks to remedy is “mutable government,” a pattern of chaotic and inconsistent policymaking that we can expect when public opinion has too much power and immediacy.

By various means the Senate is structured to overcome this problem and achieve stable government.  The chief means are the longer term of office and the smaller number of members, when compared to the House.  Madison continues on this theme, and has still sharper words for unmediated democracy, in his next essay.

(For explanation of this recurring feature, see here.)

Harry Reid and Partial-Birth Abortion


Jonathan:  I think that your condemnation of Senate Democratic leader Harry Reid gives him too much credit in suggesting that he might have actually believed that the federal partial-birth law that he voted for was unconstitutional.  It seems far more likely—especially in light of the serious ethics charges (Abramoff-related and otherwise) that have been raised against him—that Reid is cravenly doing whatever is necessary to hold onto his leadership position.

Tags: Whelan

Ginsburg and “Abortion Doctors”


A follow-up to Matt’s second point here:  Justice Ginsburg imagines that Justice Kennedy’s use of “the pejorative label ‘abortion doctor’” reveals his supposed hostility to abortion.  (Never mind his endorsement of a constitutional right to abortion in Casey.)  In fact, “abortion doctor” is a euphemism that pro-abortion groups developed and use as an alternative to the term “abortionist” (a word that earned its stigma and that, as I pointed out here, some abortionists use to describe themselves).  See here for an example of NARAL Pro-Choice America’s use of “abortion doctor”. 


Real doctors don’t deliberately kill human beings in the course of their medical practice.  Indeed, the Hippocratic Oath proscribes abortion.

Tags: Whelan

Carhart Reax Roundup


At the New York Times editorial page, they’re reaching for the smelling salts, in an editorial that reads like it was written by one of Justice Ginsburg’s clerks.  At the more moderate Washington Post, they’re not panicking yet, but they’re worried.  And as though it were a profound criticism, the Post points out that yesterday’s “result is most easily explained by a change in the court’s membership.”  Yes, a change from a justice who believes in the rule of judges (O’Connor) to one who believes in the rule of law (Alito). In contrast to the Times and the Post, the Wall Street Journal’s editors have a balanced perspective on the implications of the ruling.

Most entertaining of all, perhaps, is Slate’s Dahlia Lithwick, who smacks Justice Kennedy pretty hard for what she detects as the sentimental paternalism lurking in his opinion for the Court.  Lithwick has sharply criticized Kennedy’s flights of pseudo-poetry before even when she likes his results, and it must be said that there are obiter dicta aplenty in his Carhart opinion, including this line (much reviled in left-wing commentary I’ve seen): “Respect for human life finds an ultimate expression in the bond of love the mother has for her child.”  But here’s the most jaw-dropping line in Lithwick’s article: “It’s hard to fathom why Kennedy has so much more sympathy for the women who changed their minds about abortions than for those who did not.”

Lithwick imagines she can tell that Kennedy is more sympathetic to the one group than the other.  I can’t fathom why she thinks she knows that.  But suppose she is right.  Maybe it’s because Justice Kennedy is beginning to remember where babies come from, and what they are.

Reid Supported Ban, Laments Ruling


Senate Majority Leader Harry Reid voted in favor of the federal partial-birth abortion ban, but yesterday he lamented that Justice Alito was on the Court to case a deciding vote rather than Justice O’Connor.  I have details here .


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