Bench Memos

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Senate Hearing on Roe


Having made its ugly entrance on the American scene 32 years ago, Roe v. Wade continues to roil American politics, especially the selection and confirmation of Supreme Court justices.

I testified last Thursday before the Constitution subcommittee of the Senate Judiciary Committee in a hearing titled “The Consequences of Roe v. Wade and Doe v. Bolton“. Kudos to Chairman Sam Brownback of Kansas for holding the hearing (which featured pro-life witnesses Norma McCorvey and Sandra Cano, the actual, but unwilling, pseudonymous plaintiffs Roe and Doe).

Among other things, I observed that Roe is a “frightening” and “lousy opinion,” “a verbal smokescreen” that “borders on the indefensible” and “provides essentially no reasoning in support of its holding.” But those weren’t my words. They’re the words of liberal scholars and thinkers who strongly support abortion.

My modest bottom-line point was that all Americans, no matter what their policy views on abortion, ought to recognize that the regime imposed by the Supreme Court in Roe should be dismantled and that the issue of abortion should be returned to its rightful place in the democratic political process.

It was discouraging, but not surprising, to see how pro-Roe advocates continue to engage in lies and distortions.

The full written testimony that I submitted is available here.

Go Ahead, Take the Day Off, Court Watchers


Rehnquist isn’t going anywhere. Subtle signals: He wore a Nike hat to court yesterday. Message? He’s in good shape and will keep running.

Just reading what we have…

Anyone see what Sandra D was wearing?


Wait and See


Novak on Gonzales


Bob Novak reports on speculation about a possible Gonzales appointment, especially if Justice O’Connor retires. If O’Connor goes, Novak suggests, it’s either Gonzales or some other non-white-male nominee. Perhaps Judge Emilio Garza or Edith Brown Clement.



Tuesday morning at 8:15 ET, I am scheduled to debate the Ten Commandments cases on Fox TV.


Ten Commandments plus Fifth Amendment


Scrappleface succeeds in putting today’s cases together with last week’s Takings case:

Court Allows 10 Commandments on Seized Land
by Scott Ott

(2005-06-27) — In a pair of rulings on the constitutionality of the 10 Commandments on government property, the Supreme Court today said the commandments may be displayed on public land if that property has been seized from private owners for ‘public purposes’ under eminent domain.

The 5-4 decision comes on the heels of this week’s court declaration that so-called “private” property is actually government land temporarily under private management until its eventual seizure.

In a second ruling handed down today, the Supreme Court banned the 10 commandments from appearing in courtrooms unless the following disclaimer is included: “Display of this historically-significant collection of laws shall not be construed as an endorsement of the God who may, or may not, have spoken them, nor of the existence of such a God, nor of the legality of the laws. Citizens may observe and obey these commandments at their own risk. Please consult your family attorney before embarking on any law-abiding regimen.”

We can at least take small comfort in the fact that the Court is not entirely beyond parody.

Preventing Theocracy?


Justice Souter and his four colleagues who joined his majority opinion in the Kentucky Ten Commandments case evidently get their understanding of this country from the New York Times op-ed page. Consider this bizarre closing to an argument section that aims to refute Justice Scalia’s dissent:

“[P]ublic discourse at the present time certainly raises no doubt about the value of the interpretative approach invoked for 60 years now. We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable. This is no time to deny the prudence of understanding the Establishment Clause to require the Government to stay neutral on religious belief . . . .”

If the Court is going to rest its ruling in part on prudential (i.e., policy) reasons like this, it would be helpful if it would tell us what the dickens its references to “public discourse” and “the divisiveness of religion in current public life” are supposed to mean. Is the Court giving anti-religious forces the equivalent of a heckler’s veto? Or does it seriously believe that we are in even the remotest danger of a modern-day St. Bartholomew’s Day massacre?

Clarence Thomas as Chief Justice


Jude Wanniski had a memo Saturday arguing that the best response to Thursday’s eminent domain decision is to elevate Clarence Thomas to Chief Justice.

The Nominee Game


If there is a vacancy announcement this week (and it is about even money on no vacancies versus one vacancy, and even then it’s hard to guess whether Rehnquist or O’Connor step down), be ready for the flood of handicapping on the nominees. Liberal activist groups, like NARAL, People for the American Way (or if John Edwards were involved, People for the Two American Ways) are going to be ready whoever the nominee is with “Judge X is anti-environment or Judge Y is against women’s rights or Judge Z is a wife beating dog hater). This is precisely how they hope to deceive the public, by characterizing a nominee’s judicial (or lawyering) record as a political matter. But keep in mind that, more often than not, the decisions that are being characterized have little, if anything, to do with politics, and are a matter of construction of an act of Congress or a constitutional provision. So when NARAL attacks Judge Mike Luttig as anti-women’s rights as a result of his opinion in Brzonkala, which struck down the violence against women act (and was eventually upheld by the Supreme Court), the truth of the matter is that Judge Luttig said little to nothing in his opinion about the problem of violence against women in our society, but instead ruled that Congress lacks the authority to legislate in what is essentially a purely local, non-commmercial matter. Judge Bill Pryor was attacked for filing a Supreme Court brief in the same case; interest groups called him hostile to women’s rights. But then Alabama AG Bill Pryor made very clear in filing his brief that the issue was one for his state to address and that Congress really had no business legislating under the Commerce Clause. More often than not, the real explanation of a decision lies in the details. But the liberal interest groups hell bent on destroying whatever nominee comes down the pike will seek to distort the opinion by playing on the politics of the decision. And that’s just the point–they want judges who will play to their politics interests, rather than interpret the law. So politicizing individual decisions is one part of that arsenal.

Breyer’s “Exercise of Legal Judgment”


So what explains the different results in the Kentucky and Texas cases involving the Ten Commandments? Justice Breyer provided the decisive 5th vote in each case, so we must consult his opinion concurring in the judgment in the Texas case (beginning at page 23) for the answer.

For “difficult borderline cases” that are “fact-intensive,” there is Breyer tells us, “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.”

The particular factor that Breyer finds “determinative” in this case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”

In short, it would seem, under Breyer’s view, American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage.

“The Dictatorship of a Shifting Supreme Court Majority”


Here’s a quick cut and paste job from that dissent, for a taste.

Another Classic Scalia Dissent


In the Kentucky 10 Commandments case, Justice Scalia wrote a dissent joined in whole by Rehnquist and Thomas and in part by Kennedy. Scalia read from the bench a summary of Part I of his dissent (the part that Kennedy did not join). Be sure to read it. Here are the key points:

1. The history of this country demonstrates that the majority’s proposition that the government cannot favor religion over irreligion is plainly false.

2. “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.” The majority flunks that test.

3. “If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all.” “Historical practices . . . demonstrate that there is a distance between the acknkowledgment of a single Creator and the establishment of a religion.”

Opinions In


Some accessible here.

Life Is Too Long


Stuart Taylor wants shorter tenures for judges.

Texas 10 Commandments Case


The Chief issued a plurality opinion. Breyer concurred in the judgment. Four dissenters included O’Connor.

(I haven’t seen opinion yet. All of this is based on conversation with someone who was in courtroom.)

“I Thought He Sounded Awful”


Jeffrey Toobin on Rehnquist on CNN a few ago.

I give you what we’ve got.

Explaining the Split


For those that are curious about the doctrinal reason for the split over the Ten Commandments cases, it appears that it’s okay to have a Ten Commandments display on government land, just not in a government courthouse.

Cops Can’t Be Sued for Restraining Orders



The Supreme Court ruled Monday that police cannot be sued for how they enforce restraining orders, ending a lawsuit by a Colorado woman who claimed police did not do enough to prevent her estranged husband from killing her three young daughters.

SCOTUSBlog Roundup


Lyle Denniston rounds up the decisions, including the split over the 10 Commandments, here.

RE: Split


The split decisions ensure that this will remain a live, contentious issue for years to come, and that constitutional law scholars have plenty to write about, as they try to figure out what sorts of displays satisfy Justice O’Connor’s . . . oops, I mean the Constitution’s requirements.


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