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This Day in Liberal Judicial Activism—July 22



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2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.  

2013—Barely three weeks after the Supreme Court’s ruling in United States v. Windsor, federal district judge Timothy S. Black enters an order barring the state of Ohio from applying its laws that prohibit recognition of same-sex “marriages.” Contending that “This is not a complicated case,” Black simply ignores those parts of Windsor that recognize the broad authority of each state to define and regulate marriage within its borders.

Black’s one-sided reading of Windsor will quickly be repeated by other judges.

This Day in Liberal Judicial Activism—July 20



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Pregnancy and Disparate Impact



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The U.S. Equal Employment Opportunity Commission this week has issued new “Enforcement Guidance” on “Pregnancy Discrimination and Related Issues,” and it asserts that “disparate impact” causes of action may be brought in this area under federal law. I’d like to flag the fact that, once upon a time, the U.S. Department of Justice took a contrary position, as discussed in this Seventh Circuit majority opinion and dissent. The Supreme Court, to my knowledge, has not resolved this issue.

This Day In Liberal Judicial Activism—July 17



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2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

‘The Evangelical Origins of the Living Constitution’



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That’s the arresting title of what sounds like a provocative new book by John Compton, assistant professor of political science at Chapman University, reviewed here by George Leef.

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Chris Christie’s Abysmal Record on Judges



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The Judicial Crisis Network, my organization, has launched a project to highlight Governor Chris Christie’s awful record on judicial appointments.  Please visit the new website, share the links, and watch the video below.

The timing of the launch, just ahead of Governor Christie’s fundraising trip to Iowa, seems to have sparked additional interest from the press, leading Governor Christie’s spokesman, Mike DuHaime, to respond by spinning Christie’s record.  According to DuHaime:

Gov. Christie has nominated multiple conservatives to the Supreme Court but several have been blocked by the Democrat Senate. Yet, Governor Christie has still been able to get three Republicans on to the state’s highest court, making it more conservative.

By conservative, is Christie’s spokesman referring to the justices who in 2013 ruled unanimously in favor of same-sex marriage?  The justices who in 2013 unanimously voted to open the floodgates to trial lawyers seeking to attack companies under state law?

Is he referring to Bruce Harris, the failed nominee who equated marriage between a man and a woman with segregation and slavery and believed that opposition to same-sex marriage violates the “separation between the state and religion”?  Harris was rejected after admitting during his hearings that he had virtually no courtroom experience.

Or maybe Christie’s spokesman was referring to his most recent nominee, Lee Solomon, who local columnist Paul Mulshine says “has a history as a pro-choicer” and was once endorsed by New Jersey Right to Choose.

If these are Christie’s conservative nominees, then Christie’s definition of a conservative sounds an awful lot like a liberal.  

This Day in Liberal Judicial Activism—July 15



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2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination. 

Driving Right



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Pardon this personal indulgence as I get ready to head out the door on vacation.

It’s always a pleasure to run across Bench Memos readers, all the more so in unexpected situations. As I was wrapping up the purchase of a car on Saturday, the salesman Matt, taking note of my name, asked if I wrote for Bench Memos. It turns out that Matt is a dedicated reader of NRO and Bench Memos. Even better, he’s an Army veteran who served in Iraq—in the same platoon with David French (whose blogging on the Corner I especially enjoy). Thanks for reading, Matt, thanks for being so patient with me on Saturday, and special thanks for your service to our country.

As it happens, when I last went car-shopping—after Superstorm Sandy demolished our minivan—I had a similar experience. In the waiting room of the mechanic’s shop where I was having a used car inspected, I saw a fellow reading, of all things, Russell Kirk’s The Conservative Mind. We struck up a conversation, and I quickly discovered that he was a big fan of the Ethics and Public Policy Center (the think tank I run) and of NRO. Like Matt, he was also a military veteran.

Straining (admittedly) to connect this post to Bench Memos’ substantive portfolio, I’m reminded that driving is a skill that Justice Kagan “has not yet mastered.” I’m certainly not contending that there is any correlation between being a good judge and being a good driver, but I do marvel at the fact that someone like Kagan who has difficulty with the simple task of maneuvering a car shows no humility about her ability to re-engineer society around the latest progressive pieties. (Ditto for Justice Breyer and riding a bicycle.)

This Day in Liberal Judicial Activism—July 14



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1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.

This Day in Liberal Judicial Activism—July 12



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2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”? 

Senator Richard Durbin, D-Idiot?



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Democratic senator Richard Durbin contends that the Hobby Lobby ruling violates the “fundamental premise” of Griswold v. Connecticut (1965), which held that a constitutional right of privacy protects the use of contraceptives by married persons (and which was extended some years later to unmarried persons). Durbin complains that Chief Justice Roberts and Justice Alito, as members of the Hobby Lobby majority, failed to live up to their statements in their confirmation hearings in which (per Durbin’s paraphrase) “they both said they stood by the Griswold decision.”

Senator Durbin is either a fool or a demagogue (or both). The constitutional right set forth in Griswold is a right against governmental interference, not a right to force a private employer to pay for your contraception. That explains why neither the Obama administration in its Hobby Lobby brief nor even Justice Ginsburg in her histrionic dissent even mentions Griswold.

As it happens, one opinion in Hobby Lobby does mention Griswold. That is Justice Alito’s majority opinion, which, as part of its tentative exploration whether the HHS mandate serves a compelling governmental interest, cites Griswold for the proposition that “Under our cases, women (and men) have a constitutional right to obtain contraceptives” (p. 39). Thus, beyond the fact that Hobby Lobby does not conflict at all with Griswold, Alito and Roberts expressly “stood by the Griswold decision” in Hobby Lobby.

Sotomayor to Wheaton’s Religious Beliefs: Drop Dead



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I’m finally reviewing the Supreme Court’s order granting Wheaton College an injunction against the government, which relieves the Christian college from the obligation of filing an HHS-mandated form instructing the college’s third-party administrator to provide emergency contraceptives under the college’s insurance plan. (Ed Whelan has previously discussed the case here.)

As Justice Sotomayor’s dissent recognizes, Wheaton believes that filling out HHS’s Form 700, which instructs its third-party administrator to provide all of the regulation-ordered contraceptives, makes it complicit in potentially killing a human being. (Several of the required contraceptives may prevent implantation of a fertilized egg, thus causing the death of a human embryo.) This is Wheaton’s religious belief, and Justice Sotomayor doesn’t question the college’s sincerity or beliefs, at least not in those terms.

Instead she does it in a more roundabout way. For instance, Justice Sotomayor says that complicity in taking a human life is not a “substantial burden” within the meaning of RFRA with these familiar introductory words (link added, of course): 

Let me be absolutely clear: I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs. But thinking one’s religious beliefs are substantially burdened—no matter how sincere or genuine that belief may be—does not make it so. 

But as Justice Sotomayor recognizes, Wheaton thinks that by filling out the form and instructing its administrator to provide the potential abortifacients, it will be committing a “grave moral evil.” One imagines that whatever the technical standard for “substantial burden,” complicity with unjustified homicide would fit within it.

Onward and upward, goes the dissent, declaring that “Wheaton’s complicity theory cannot be legally sound.” It then goes on to quote a particularly egregious passage from Judge Richard Posner’s decision in the Notre Dame contraceptive mandate case that second-guesses the moral reasoning of a Quaker who objects to armed service. (If you have not had a chance to read Judge Posner’s shining example of how not to think about religious freedom, you can read more about it here.)

But wait a minute – why is Justice Sotomayor (or Judge Posner, for that matter) delving into the significance of hypothetical chains of causation? One might expect that it’s unintentional. Not so, as it turns out: “The filing of the self-certification form merely indicates to the third-party administrator that a religious nonprofit has chosen to invoke the religious accommodation” (emphasis added). “Merely” is the key word: The dissent is downplaying the moral significance of filling out the form, even when that’s exactly what courts must not do when the religious belief is sincere.

The fault line clearly marks a disturbing substantive disagreement about how religious liberty is supposed to work. Like Judge Posner, Justice Sotomayor and the two other dissenters find it irresistible to second-guess the religious beliefs of the litigants before them. And that’s a problem.

[UPDATE 3:32 P.M.: Eugene Volokh discusses this issue in an excellent, highly detailed blog post here.]

There She Goes Again



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Last I checked, former Supreme Court justice Sandra Day O’Connor maintained (rightly or wrongly) that she had retired only from regular active service and remains a federal judge eligible to sit on lower-court cases. That somehow hasn’t stopped her from engaging in crass politicking on state judicial-selection methods and in other fishy and inappropriate activity.

From a tweet from New York Times reporter Adam Liptak, I’ve learned that O’Connor has recently authored—or, rather, signed her name to—a report (available here) setting forth a model for state judicial selection. She modestly titles that model the “O’Connor Judicial Selection Plan,” and she is working to promote it in states across the country. As Liptak highlighted in his tweet, her report includes a “Dear Reader” letter from O’Connor on Supreme Court stationery.

If your phone rings and awakens you in the middle of the night, don’t be alarmed. It will probably just be another robocall from O’Connor seeking your support for a ballot initiative that adopts the O’Connor Judicial Selection Plan.

“Affirmative Action” and “Diversity”



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It was during freshman week in college, I believe, that I endured a longwinded speech by Harvard president Derek Bok on the wondrous virtues of diversity. “He keeps talking about ‘diversity,’ but he never explains what he means by the term,” I complained.

More than 35 years later, not much has changed. As Yale law professor Peter Schuck observes in an excellent essay for National Affairs (the outstanding quarterly journal founded and edited by my EPPC colleague Yuval Levin), “few discussions of diversity and the diversity rationale for affirmative action even address what diversity actually means, much less explain which groups and which kinds of attributes create diversity value.” In twenty crisp pages, Schuck explores the evasions and contradictions that plague defenses of so-called “affirmative action.” 

Schuck laments that the Supreme Court seems not to have learned the lesson that “universities that are keen to implement race-based affirmative action … will figure out a way to do so unless the Court emphatically and clearly prohibits it.” As Schuck points out—and as this City Journal review, by Mark Pulliam, of Tim Groseclose’s Cheating: An Insider’s Report on the Use of Race in Admissions at UCLA discusses more fully—even when state law does clearly bar racial preferences, universities will resort to subterfuges to evade the law.

Schuck concludes:

The public opposition to race-based affirmative-action programs on campus is amply justified. Affirmative action defies — indeed flouts — equal protection and other liberal values. It rests upon a diversity rationale that is theoretically incoherent and in fact produces little if any of the diversity value that alone might justify it (and then only under a dubious rationale). It cannot satisfy the constitutional tests that the Court has laid down and reaffirmed as recently as last year. It has failed to increase its political support in the nation after four decades of energetic advocacy. It fosters corrosive racial stereotypes, poisons race relations, and encourages opacity, dissimulation, and even evasion by its administrators and advocates.

And if that were not enough, affirmative action seems to grievously harm many of its supposed beneficiaries — not to mention the non-preferred groups who are disadvantaged by the practice.

The Anti-Hobby Lobby Bill



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On the Corner, I explain that under the guise of “protect[ing] women’s health from corporate interference,” the bill that Senate Democrats are proposing in response to the Hobby Lobby ruling would deprive religious entities of all religious-liberty protections against having the HHS mandate directly imposed on them. 

Whither Law Schools?



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George Leef answers this question by arguing, “Wither, law schools.”

Law Professor: Court Packing Will Do the Trick in Halbig v. Sebelius



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According to Washington and Lee law professor Timothy Jost, court-packing works. In an op-ed reciting the IRS’s arguments in Halbig v. Sebelius and a related Fourth Circuit case, he concludes with this observation about what happens if the plaintiffs succeed in the D.C. Circuit:

If that happens, their success will be short-lived. The U. S. Court of Appeals for the 4th Circuit seems poised to uphold the IRS rule in an identical challenge, and the entire D.C. Circuit is likely to reverse the three-judge panel if it issues such an outlier ruling. There is no secret bomb in the ACA, as the courts have told us and will tell us, and the imaginary bomb will not destroy the law.

In other words, now that President Obama has packed the D.C. Circuit, we can count on it to uphold the administration’s interpretation of Obamacare no matter what the statute actually says.

This Day in Liberal Judicial Activism—July 10



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2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says.

But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling. 

Fact-Checking Harry Reid



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The gloves are off over the Hobby Lobby decision. Come to think of it, they came off in the Hobby Lobby decision. The principal dissent by Justice Ginsburg was more than caustic. It was a declaration of war — upon the majority which, in turn and according to Ginsburg, had declared war on women. Justice Sotomayor rattled the saber some more three days later, in her nearly hysterical dissent — for herself and Justices Kagan and Ginsburg — from the Court’s grant of emergency protection for Wheaton College.

Justice Alito’s majority opinion in Hobby Lobby was actually sturdy, solid, and courageous. Some would even say that it was “manly”. 

Harry Reid would. In fact, Harry Reid did — yesterday, in the nation’s Capitol, when he declared his party’s support for a bill which would overrule Hobby Lobby. Reid’s stated rationale was belligerent, too. As quoted in today’s New York Times: “The one thing we’re going to do during this work period, sooner rather than later, is to ensure that women’s lives are not determined by virtue of five white men”. 

That will be news to Clarence Thomas.

George Leef on Hobby Lobby and Harris v. Quinn



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I was on vacation last week when the Supreme Court handed down Hobby Lobby and Harris v. Quinn. Moral: I should go on vacation more often. Here’s George Leef’s take on the two decisions.

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