Bench Memos

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Twelve Weeks and Counting: Analysis of the Arkansas ‘Heartbeat’ Ruling


Federal District Judge Susan Webber Wright last week struck down and declared unconstitutional the Arkansas “human heartbeat protection act,” which was passed in 2013 and would have prohibited abortion after twelve weeks. (Abortion would be prohibited under the Arkansas statute if “the heartbeat is detected and the gestational period is 12 weeks or more.” The prohibition did not apply to abortions for rape or incest or abortions performed in response to a medical emergency.)

This case has significance for those evaluating the wisdom of pursuing similar twelve-week limits or whether an approach that focuses on a mother-child strategy, limiting abortion later in pregnancy based on both the impact of abortion on women’s health and the pain felt by the unborn, should be considered instead.  

The judge granted summary judgment to the plaintiffs, which means she concluded that there was “no genuine issue of material fact” and that the plaintiffs were entitled to judgment as a matter of law. This means that no facts (other than the application of the prohibition at a point before viability, for which the judge relied on the affidavit of one physician) were relevant, in her judgment, to the constitutionality of the act, and that the law was clearly unconstitutional as a matter of law. 

The outcome of this hearing for summary judgment was foreshadowed by Judge Wright’s granting of a preliminary injunction against the twelve-week prohibition in May 2013 and her conclusion, at that time, that the plaintiffs were “likely to prevail” with their claim that the twelve-week abortion ban was unconstitutional. In fact, the state of Arkansas admitted to the court that it “recognize[d] the court’s determination that the prohibition of abortion after 12 weeks gestation… will be invalidated by the court.”

In the wake of the Ninth Circuit’s invalidation of the Arizona 20 week limit in 2013 in Horne v. Isaacson, and the Supreme Court’s refusal to hear that case in January, 2014, I was interested to see what Judge Wright’s reasoning would be, and what Supreme Court decisions, or other federal court decisions, the judge would quote or disregard. 

As it turns out, Judge Wright didn’t mention any Supreme Court abortion decisions (or any other federal court decisions including the Ninth Circuit’s 2012 decision in Horne v. Isaacson) except two: the Court’s 1992 decision in Planned Parenthood v. Casey and the Court’s 1976 decision in Planned Parenthood v. Danforth

Quoting the Court’s decision in Casey, 505 US 833, 845–846, Judge Wright concluded that “before viability ‘the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.’” The Court concluded that “the line between a woman’s interest in control over her destiny and body and the State’s interest in promoting the life or potential life of the unborn is drawn at viability” (summarizing Planned Parenthood v. Casey, 505 US 833, 845-846). 

Judge Wright concluded that “given plaintiff’s uncontroverted evidence, the court finds as a matter of law that the 12 week abortion ban included in Act 301 prohibits pre-viability abortions and thus impermissibly infringes a woman’s 14th amendment right to elect to terminate a pregnancy before viability.” In other words, as the judge viewed it, this was a “slam-dunk.” 

Judge Wright made no mention of Gonzales v. Carhart, did not apply the substantial obstacle standard, or the standard that I believe the Supreme Court established in 2007 in Gonzales v. Carhart: whether a prohibition is “a substantial obstacle to a safe abortion.” For Judge Wright, as for the Ninth Circuit in Horne v. Isaacson, the viability line of Roe v. Wade is a “per se” rule that does not permit any prohibition of any abortion before viability. In other words, there is no need to apply the substantial obstacle test to a prohibition before viability because the viability rule prohibits any prohibition before viability.   
However, the court upheld some of the rest of the Arkansas statute:  the heartbeat testing and the disclosure requirements, finding that they “are independently capable of furthering the stated purpose of act 301, to protect unborn children, and that they are severable from the unconstitutional 12 week ban.”

This matter isn’t over. 

The plaintiffs will likely appeal the judge’s upholding of the testing and disclosure provisions. It is not clear whether Arkansas will defend the twelve-week prohibition on appeal to the Eighth Circuit or whether they created an evidentiary record (on, for example, the state’s compelling interest in maternal health in the second trimester, or whether the act actually creates a substantial obstacle to a safe abortion) by which to defend the twelve-week prohibition.   

Whatever the outcome of this case, it is clear that legislators across the country have an interest in reining in an abortion industry that operates in the extreme. The U.S. is one of only four nations — along with North Korea, China, and Canada — that allows abortions through all nine months – for any reason at all and sometimes with taxpayer subsidies. Many Americans favor limits on abortion, and legislative efforts to reflect that view will continue to be on the rise. 

— Clarke Forsythe is Senior Counsel for AUL and author of Abuse of Discretion: The Inside Story of Roe v. Wade.

DOJ’s Reply Brief in Hobby Lobby—Part 1


In advance of next Tuesday’s oral argument in the HHS mandate cases, let’s consider the reply brief that the Obama administration filed last week in Hobby Lobby.

In my two posts on DOJ’s Round 2 brief in Conestoga Wood, I’ve already critiqued DOJ’s arguments that closely held for-profit corporations are categorically incapable of engaging in exercises of religion and that the HHS mandate does not substantially burden religious objectors. I see nothing new in DOJ’s reply brief on these threshold issues, so I’ll rest on what I’ve written.

Once we’re past these threshold issues, RFRA’s strict-scrutiny test applies. Under that test, the federal government “may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” (Emphasis added.)

DOJ spends nearly all of the second half of its reply brief arguing that the HHS mandate furthers a compelling governmental interest. I’ll explain in my Part 2 post why I think its argument is deeply flawed. But for purposes of deciding the Hobby Lobby and Conestoga Wood cases, the Supreme Court has a simple path available to it that does not require it to sort through the competing arguments on compelling interest.

Specifically: It is clear that the HHS mandate is not the least restrictive means of furthering any compelling interest that might be assumed to exist, as the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a less restrictive means that, it says, “strike[s] the appropriate balance between respecting the religious considerations raised by non-profit religious organizations and increasing access to important preventive services for women.” RFRA therefore requires, at a minimum, that the Obama administration also make the accommodation arrangement available to others who object to the HHS mandate on religious grounds.

Nothing in this argument, as I see it, requires that an objector agree that the accommodation rule would eliminate his objections. It ought to be enough that the objector finds the accommodation even marginally less objectionable or less burdensome than the HHS mandate. (Hobby Lobby’s brief—pp. 5-6, 58—indicates that that is its position.) In other words, in challenges to the HHS mandate, the accommodation qualifies as a less restrictive means under RFRA whether or not the accommodation itself would survive a RFRA challenge. (Whether the accommodation satisfies RFRA is being litigated in the challenges brought by the Little Sisters of the Poor and other religious nonprofits.)


Slate Violates Limits of Corporate Personhood?


In a Slate essay, UCLA law professor Adam Winkler argues that “Hobby Lobby should only have the rights of legal personhood that are essential for its operations.” From which of his ears he has extracted that proposition is unclear. (It certainly doesn’t follow from the passage he quotes from Chief Justice Marshall’s famous 1819 Dartmouth College opinion.)

Insofar as Winkler purports to be describing the rights that Hobby Lobby actually has pursuant to its incorporation in Oklahoma, his analysis is oddly bereft of any reference to Oklahoma law. Ditto for rights under RFRA.

Insofar as Winkler is prescribing the rights that he thinks corporations “should” have, perhaps Slate—which (we learn at the bottom of the page) “is published by The Slate Group, a Graham Holdings Company”—should have followed his views. Winkler might grudgingly (“Perhaps”) allow corporations “some limited speech rights, as we ordinarily expect firms to advertise and communicate with employees and customers.” But, under Winkler’s theorizing, it surely isn’t “essential for [a corporation’s] operations” that it publish op-eds.

This Day in Liberal Judicial Activism—March 18


1963— As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day.

In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.

Regulatory ‘I’ve Got a Secret’: CFPB’s Disparate-Impact Guidance


How can you comply with a law when you don’t know what it prohibits?

That’s a question that lenders continue to ask about the Consumer Financial Protection Bureau (CFPB), an agency created by the 2010 Dodd-Frank legislation, which refuses to explain how it determines whether certain lenders are engaging in racially discriminatory behavior.

CFPB regulations generally prohibit lenders from discriminating based on race, gender, or ethnicity. To make sure that discrimination can’t happen in the back office, it prohibits lenders from even collecting information about an applicant’s race, gender, or ethnicity. Buttressing these legal requirements, economic self-interest discourages lenders from offering noncompetitive loans to potential borrowers. But as Ammon Simon has previously explained, under CFPB regulations, a lender can be held responsible for racially biased lending based on controversial “disparate impact” statistical analysis even if not a single instance of intentional discrimination exists.

So what can a law-abiding lender do to avoid the large fines and ugly publicity that come with accusations of discrimination? Normally, this would be fairly simple: determine the legal standard, design a business practice that complies with it, and make sure it’s followed internally. However, this strategy doesn’t work if the government won’t tell you how to determine if your business practices have a “disparate impact.” Unlike the CFPB, which can simply discontinue an internal evaluation program that has a “disparate impact” on its minority employees, lenders lose business when they discontinue lending. And because lenders aren’t even allowed to collect information about the race, gender, or ethnicity of loan applicants, they have no way of knowing whether their programs create a “disparate impact.”

The CFPB has played its methods so close to the chest that it has refused to articulate anything more than generalities despite bipartisan requests from both houses of Congress, reports the Wall Street Journal. Perhaps the agency isn’t just making it up as it goes along and really does know what it means by “disparate impact.” But it is hard to see justice in a scheme where the government writes the rules, enforces the rules, and won’t tell anyone what the rules mean.


This Day in Liberal Judicial Activism—March 17


1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”

2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”!

This Day in Liberal Judicial Activism—March 15


1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

Tomorrow: Event on State AGs’ Dereliction of Duty


As Ed noted last week, the Heritage Foundation will be holding an event at noon tomorrow, March 14, entitled “Dereliction of Duty: State Attorneys General Failing to Defend Marriage Laws in Court.” The keynote address will be by Ken Cuccinelli, former AG of Virginia, followed by a panel with Ed and myself. Registration is here.

Ninth Circuit Leading the Pack for ‘Most Reversed’


Last week, the Supreme Court released this term’s fifth third opinion unanimously reversing the Ninth Circuit (the third first and fourth second were released the preceding week). This gives the Ninth Circuit an early lead in the race for the title of “Most Reversed.”

[UPDATE: 3/13/2014 at 5:28 PM: An observant reader draws my attention to two previous unanimous reversals this term, one in December and one in February, giving the Ninth Circuit an even bigger lead with 5 unanimous reversals in a row.]

The Supreme Court rarely takes cases where a lower court was simply incorrect. There usually must be some other reason for the Supreme Court to take the case, such as to correct a difference in opinion between the courts of appeals, to resolve a question that has confused or misled lower courts, or sometimes just because the case is too important to ignore. Within these boundaries, it is generally easier to convince the Supreme Court that it should take a case when the court of appeals got it wrong. That means that in general, we ought to expect the Supreme Court to reverse more often than it affirms. But as Court-watchers know, even with these qualifications, the Ninth Circuit has a reputation as a magnet for the high court’s negative attention.

Although recent years have seen other circuits competing with the Ninth Circuit for the title of “Most Reversed,” the Ninth still appears to hold the unquestioned title. The Ninth Circuit’s best showing in recent years was October Term 2009, with a 60 percent reversal rate in the 15 cases on which certiorari was granted. The Sixth Circuit got the prize for highest reversal rate that year, with seven cases resulting in seven reversals, while the Seven Circuit came in a close second (91 percent reversal rate in eleven cases).  

But in 2010, perhaps seeking to reclaim its position at the top of the heap, the Ninth Circuit was reversed a startling 19 times (79 percent), three times as many reversals as most circuits had cases before the Supreme Court. The same pattern continued in the 2011 (71 percent) and 2012 terms (86 percent), when the Ninth Circuit was reversed more than twice as many times as most circuits had cases before the Court.

The Court is done releasing opinions for this week, but will resume again next week. What will next week hold? We shall see.

(Hat tip to SCOTUSblog for the statistics.)

This Day in Liberal Judicial Activism—March 13


1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”  

Judge Batchelder to Step Down as Chief


The Sixth Circuit Appellate Blog reports that Judge Alice Batchelder will step down as Chief Judge of the U.S. Court of Appeals for the Sixth Circuit in August.  She will be followed in that position by Judge Guy Cole.

McHugh Confirmed to Tenth Circuit


This morning the Senate unanimously confirmed Utah Appeals Court Judge Carolyn McHugh to a seat on the U.S. Court of Appeals for the Tenth Circuit.  Senator Hatch, who actively supported the nomination, comments on her confirmation here.

For a list of all of the judicial nominees confirmed in the 113th Congress (2013-14), see here.

West Virginia AG Gets National Bipartisan Support for Opposing Corrupt Patronage System


When Patrick Morrisey became attorney general of West Virginia in 2013, he was the first Republican to hold that office since 1933. A lot of Democrats and trial lawyers who had benefited from the gravy train established by Morrisey’s ​predecessors suddenly found themselves without a patron. So instead of finding honest work, they launched a mudslinging campaign to discredit and undermine Morrisey’s office.  

Their latest plan is to pass legislation designed to cripple Morrisey’s office by disqualifying him from an enormous number of cases and basically prohibiting him from getting involved in litigation that challenges overreach by federal agencies like the EPA. Morrisey’s opponents have apparently concluded that if he won’t go along in treating the AGs office as the servant of a corrupt patronage system, then the best course is to gut his office and distribute its authority to more reliable lawyers.

Fortunately, attorneys general from both parties are coming to Morrisey’s defense against this offensive and unprecedented legislation. According to a story in the Parkersburg News and Sentinel:

In the continuing debate over HB 4490, the National Association of Attorneys General, along with a bipartisan group of attorneys general representing 36 states, districts and territories, sent a letter to the leadership of the West Virginia Legislature Friday outlining its concerns on the bill. . . .

“We are not aware of any statute that imposes such a broadly sweeping prohibition on an attorney general’s office-at the state or federal levels,” the attorneys general wrote to leaders of the West Virginia Senate and House of Delegates. “Nor are we aware of any state’s high court – which traditionally regulates the practice of law – having imposed such a principle of disqualification either through rules of practice or judicial opinion. The absence of such a prohibition is unsurprising, as it would plainly discourage experienced attorneys from seeking the office of attorney general.

New York Times v. Sullivan: Fifty Years of a Press Free from Responsibility


On March 9, 1964, the United States Supreme Court decided New York Times v. Sullivan, a case that radically expanded first-amendment protection for the press. Naturally, the fiftieth anniversary of this decision is being ecstatically celebrated throughout all media and legal academia.

However, for those committed to the text and history of the Constitution, and a judiciary tethered to them, there is nothing at all to celebrate. Even by the imperial-judiciary standards of the Warren Court, this case stands out as something of a classic effusion in that Court’s project of remaking American society to conform with its far-Left preferences. There is no question that the case is a watershed: Before New York Times v. Sullivan, the first amendment protected a free press that was responsible in law for its errors; after and because of this case, the press has anything-goes immunity from almost any mistakes, no matter how damaging. As a policy matter, this may or may not be a prudent development. Constitutionally, the decision is an infamous failure and a disgrace to the judicial role.

The case arose out of the early period of the civil-rights struggle. Sullivan was an elected official in Montgomery, Ala. He brought a libel action against the New York Times and four individuals because of an advertisement that appeared in that newspaper criticizing in part police action against civil-rights demonstrators. Sullivan won a jury verdict of $500,000, which was later upheld by the Supreme Court of Alabama.

The U.S. Supreme Court unanimously reversed the award and imported into our constitutional law an entirely new regime under the first amendment, relying not on James Madison but expressly invoking the very different views of John Stuart Mill. In an opinion written by Justice William Brennan Jr., who was the heart and soul of the Warren Court’s constitutional revolution, the Court emoted that “we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks of government and public officials.”

And then the Court imposed an extraconstitutional standard based on its own libertarian reading of the First Amendment: “The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Thus was the established balance between responsible speech and reputation — a Madisonian balance — utterly subverted. The Founders had carefully crafted constitutionally protected speech rights against the backdrop of state libel laws. For nearly two centuries, this arrangement has proved perfectly workable; no one ever claimed that the country did not enjoy a free press. What Justice Brennan did was recklessly free the press from responsibility for its mistakes. In the Warren Court way, liberty became license.

Of course, Justice Brennan’s actual-malice standard looks like a model of interpretive discipline when compared to the antihistorical, no-law-means-no-law first-amendment literalism of Justice Hugo Black in his concurring opinion. Though he was perhaps the best legal mind on the Court at that time, Justice Black in this case descended to adolescent literalism and would have wiped out all libel laws under his slipshod approach.

To be fair, within its own policy-driven, libertarian universe, the majority opinion in New York Times v. Sullivan has at least a modicum of coherence. If one elevates robust debate — which may contain errors that damage reputations — through a free press about public officials and affairs above any other values, then the actual-malice standard is logical if nothing else. But even this limit was abandoned when the actual-malice requirement was mindlessly extended to all public figures within the next few years. Along with constitutional text and history, basic reason had been discarded.

Justice Antonin Scalia has denounced New York Times v. Sullivan as an offense against original understanding and noted in public remarks that the decision should be overturned and libel law returned exclusively to the states. That would be the only proper constitutional approach to the issue and something really worth celebrating.

— Gregory J. Sullivan is a lawyer who practices in New Jersey.

This Day in Liberal Judicial Activism—March 9


1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan.

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas).

Corporate Personhood: For Me But Not for Thee?


On Thursday, a Fourth Circuit panel unanimously concluded that Title VI of the Civil Rights Act of 1964 allows minority-owned corporations to challenge racial discrimination in contracting on behalf of their owners. The court rejected the corporate defendants’ spurious argument—asserted by the government in some recent cases—that because the plaintiff is a corporation, it cannot be a “person” that is protected by federal laws.

This is an increasingly popular argument on the left, sometimes articulated as the notion that because a corporation can’t pray, therefore it can’t have religious rights, and because a corporation can’t vote, it doesn’t have freedom of speech. The solicitor general has made this argument explicitly, arguing in Hobby Lobby and Conestoga Wood Specialties that corporations don’t have religious freedoms under federal law in the first instance, and even if they do, they lose those freedoms if they engage in for-profit activities (as if real religious exercise stops once synagogue, church, or Friday prayers are over).

But as Fourth Circuit judge Barbara Keenan (an Obama appointee) pointed out in a footnote, federal statute generally defines “person” to include corporations, and Title VI does not contain its own definition to override the Dictionary Act. The Fourth Circuit adopted a line of cases from the Ninth Circuit saying that a corporate entity can assert the racial identity of its owners in an anti-discrimination claim. All that the plaintiff corporation had to show was that it was minority-owned and certified to be so.

This conclusion makes sense: A corporation may not have an independent racial identity, but its shareholders and managers do. The law does not ask courts to pretend that corporations are robots because corporations are owned and operated by people

Judge Keenan’s opinion also shows what is at stake in affording such protections to the corporate form. Although anticorporate special interests typically don’t want to admit how broadly their argument would sweep, if the Fourth Circuit had come to the opposite conclusion, antidiscrimination law would not extend to minority-owned businesses organized as corporations. This would effectively force minority business owners either to abandon financial protections available to all other businesses or abandon legal protections against discrimination. That sort of Hobson’s choice should never be imposed on any constitutionally protected class, whether racial, religious, or otherwise.

This Day in Liberal Judicial Activism—March 8


1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.

Can a For-Profit Corporation Have a Racial Identity?


Yes, says a unanimous Fourth Circuit panel in a ruling (written by an Obama appointee) yesterday: “We hold that a corporation can acquire a racial identity and establish standing to seek a remedy for alleged race discrimination under Title VI.” Among other things, the panel cites seven other circuit courts that “have concluded that corporations have standing to assert race discrimination claims,” and it quotes with approval the observation by one of those courts that it is

hard to believe that the Supreme Court would deny standing to the corporation because it “has no racial identity and cannot be the direct target” of the discrimination, while at the same time it would be obliged to deny standing to the stockholders on the sound ground that the injury was suffered by the corporation and not by them.

If that “hard to believe” proposition sounds familiar, that’s because the Obama administration is arguing in the HHS mandate cases that closely held, for-profit corporations aren’t persons capable of exercising religion under RFRA and that the corporate owners also don’t have any RFRA claims because the HHS mandate applies directly only against the corporations.

Will those who (wrongly) think that for-profit corporations are incapable of exercising religion for purposes of RFRA object as vigorously to the concept that for-profit corporations can have a racial identity for purposes of Title VI? If not, why not?

Heritage Event on State AGs’ Failure to Defend Marriage Laws


Next Friday, March 14, the Heritage Foundation will be hosting an event titled “Dereliction of Duty: State Attorneys General Failing to Defend Marriage Laws in Court.” Former Virginia attorney general Ken Cuccinelli will provide the keynote address, and Carrie Severino and I will then offer our own comments. More information on the noontime event is available here.  

Georgia Bar Symposium


Next Thursday, March 13, I’ll be at the State Bar of Georgia’s Constitutional Symposium to join law professors Jack Balkin and Eugene Volokh in a panel session titled “Expanding the Constitutional Conversation: A Discussion with Leading Legal Bloggers.” Robert Schapiro, dean of Emory University’s law school, is moderating the panel.

The symposium, which offers CLE credit, features a long list of judges, law professors, and other distinguished speakers, topped off by Justice Antonin Scalia and historian David McCullough. Unfortunately for anyone who is just learning about it and interested in attending, I gather that it’s sold out.


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