Bench Memos

NRO’s home for judicial news and analysis.

Kiss of Death


Rough transcript from a Dem media availability today:

REID: …We have had approximately 10 members of the Supreme Court that come from the United States Senate over the years. And we’ve had about an additional eight or nine that have come from senators who have retired from the Senate.

There are people who serve in the Senate now who are Republicans who I think would be outstanding Supreme Court members. I think that — you want names, I’ll give you names. I think Mel Martinez is a good name. Mike DeWine, Mike Crapo, are three that come to my mind.

I also listened very closely when we went to lunch with the Supreme Court last week, where they suggested — and me not giving the name of the justices but I had at the table, there were four of the Supreme Court justices there — they said that they thought what would be a good idea is to start calling people from outside the judicial system.

I think that’s something that we should listen to. And I’ve conveyed this to anyone that will listen.


REID: I don’t have no names for outside the judicial system. None that I’m going to at least share with you.

QUESTION: When you mention senators, John Cornyn is the only sitting senator with appellate court experience. Do you think the president could also consider him, sir?

REID: I’ve told you the three that I think he should consider.

Supreme Silliness, Part Two


After the ridiculousness of Justice Souter’s adventures in interior decorating, consider the sublimity of Justice Stevens’ foray into the history of theology. In his dissent in the Van Orden case from Texas, Stevens warns darkly of the terrible consequences of choosing among different versions of the Ten Commandments: “There are many distinctive versions of the Decalogue, ascribed [sic] to by different religions and even different denominations within a particular faith; to a pious and learned observer, these differences may be of enormous religious significance.” Why does this matter for constitutional purposes? By permitting the display of one particular version of the Commandments, Stevens says, “Texas tells the observer that the State supports this side of the doctrinal religious debate.”

Horsefeathers. Texas was evincing no support for any “doctrinal” view whatever, when it merely permitted the Fraternal Order of Eagles to erect its monument on the capitol grounds. Were the Eagles–a nondenominational group interested in advancing a Biblically-based morality–choosing sides among Jews, Catholics, and various Protestants by selecting a particular text? Um, no. As Stevens himself admits, the text on display in Texas was a “product of a compromise” precisely intended to achieve a satisfactorily ecumenical effect.

As Justice Scalia points out (in his dissent in the Kentucky case), many Americans are probably not aware today of any age-old sectarian disputes over the text of the Ten Commandments. Scalia in fact declares that he himself had not been aware of it until now–and he probably knows more about theological matters than most of the justices. More importantly, most Americans who do know of these historic disputes don’t feel that they have a life-or-death stake in them. And I’d wager that among those Americans “pious and learned” enough to be up to speed on such a subject, the overwhelming majority are in favor of public displays of the Commandments. Tolerant discussion of how to read and interpret the Commandments is the order of the day in contemporary America–not seething resentments and barely suppressed urges to replay the Thirty Years’ War.

Leave it to Justice Stevens to assume the worst about Americans–and to present us with a perfect Catch-22, that if there is no perfect text of the Commandments on which all believers can agree, none at all can be displayed.


Supreme Silliness, Part One


In one respect the world is right-side-up today: the Washington Post editorial incoherently praises the incoherence in yesterday’s Ten Commandments rulings, while George Will has the goods on what went wrong in the Supreme Court’s religion-clause jurisprudence. (Last week I experienced the strange disorientation of disagreeing with Will while agreeing with the Post editorial on the eminent-domain ruling.) John Podhoretz too is rightly scathing about the Court’s rulings today, in the New York Post.

The lunacy of the Court’s behavior yesterday–anchored by Stephen “it depends on whether I’m in the mood” Breyer–is obvious to the meanest understanding. But it might be amusing to catalogue some of the more asinine things said by some of the justices yesterday.

Let’s start with David Souter, a lifelong bachelor who had the temerity to venture into the thicket of interior design in the McCreary County case from Kentucky (all of us married men know better than to offer opinions on this subject). The county had put the Ten Commandments on display in its courthouse, in the midst of other documents collectively making up an exhibit titled “Foundations of American Law and Government.” One of the other documents was the text of the Star-Spangled Banner, which prompted this snort of aesthetic disapproval from Souter: “it is at least odd to include a patriotic anthem, but to omit the Fourteenth Amendment, the most significant structural provision adopted since the original Framing.”

This is a very strange bit of obiter dictum (Latin for “I have professional typesetters in the basement and can say what I damned well please”). Some might nominate other amendments (any bids for the 16th? 17th? 19th? 22nd?) as the most significant additions to the Constitution “since the original Framing.” And if we’re going to be strict about what was in the “original Framing,” how about the Bill of Rights, which was literally an afterthought? (The county had already included the Bill of Rights in its exhibit, but that didn’t give Souter pause.)

But Souter’s comment here was really an unintended revelation of the extent to which the Court relies on the Fourteenth Amendment as the purported basis of its constitutional rulings–probably for more than half of them. Of course that amendment is “the most significant” to Souter: it keeps him in business. For one thing, its due process clause is the vehicle for the fraudulent “incorporation” doctrine that made it possible for the Court to interfere yesterday in the internal affairs of Texas and Kentucky.

But McCreary County was not posting a law-school curriculum on its courthouse walls. It was reminding citizens of milestone documents of historic and symbolic importance in the American story of law and politics, patriotism and morality, whether they embodied judicially enforceable texts or not. In that light the Star Spangled Banner is a perfectly natural choice–and only a lawyerly nerd would instead choose the Fourteenth Amendment. The national anthem is hard enough to sing at ball games. Anyone care to try putting section 4 of the amendment to music? “The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned . . .”

But Souter wasn’t finished yet with his lecture in the higher criticism. He went on to profess himself “puzzled” by the county’s statement that the influence of the Ten Commandments may be “clearly seen” in the Declaration of Independence (also a part of the exhibit). What? What? There’s no God in that there Declaration, he opined: “the Commandments are sanctioned as divine imperatives, while the Declaration of Independence holds that the authority of government to enforce the law derives ‘from the consent of the governed.’”

Who sabotaged Justice Souter’s copy of the Declaration? In my copy, the first paragraph justifies the independence of America under “the Laws of Nature and of Nature’s God.” Three other references to God appear in the Declaration: as “Creator,” as “Supreme Judge of the World” (take that, you robed ninnies), and as “divine Providence.”

From what source does Souter think the people derive their authority over their government, via that “consent of the governed” of which he makes so much? They get it from the fact that they were created equal, as bearers of natural rights antecedent to all human laws and government. In other words, in the view of the signers of the Declaration, all political authority is grounded in principles for which God is responsible as our Creator.

Perhaps we can schedule a tutorial in American political principles for Justice Souter, conducted by the folks responsible for decorating the courthouse in McCreary County, Kentucky.

Scotus Names


Frist and Reid have talked.

Establishment Clause vs. “Wall of Separation”


The New York Times’s predictably gaseous editorial on the Ten Commandments cases ends with the observation: “As with so much else, the founders, who came up with the idea of a clear wall of separation between church and state, had it right.”

Let’s set aside the NY Times’s implicit appeal to the same originalist principles (i.e., the Constitution should be construed consistent with its original meaning) that it usually decries. Does the NY Times seriously contend that the clause “Congress shall make no law respecting an establishment of religion” was the Framers’ way of embodying “the idea of a clear wall of separation between church and state”? Does it think its readers are so dimwitted or brainwashed to believe this?

The phrase “wall of separation between church and state” derives, of course, not from the Constitution but from President Jefferson’s 1802 letter to the Danbury Baptist Association. As Professor Philip Hamburger of the University of Chicago Law School explains in his magisterial work Separation of Church and State (Harvard University Press 2002)—buy it and read it if you haven’t already done so—”the idea of separation of church and state was very different from the religious liberty desired by the religious dissenters whose demands shaped the First Amendment” (p. 9), and “the constitutional authority for separation is without historical foundation” (p. 481).

Indeed, “the idea of separation did not become popular until the mid-nineteenth century,” when nativist “opponents of Catholicism” combined with “anti-Christian ’secularists’” to demand a federal constitutional amendment guaranteeing separation. “Only when their movement for an amendment failed did they abandon their argument that the U.S. Constitution had not already guaranteed separation.” (p. 10)

Professor Hamburger shows in exhaustive detail that “modern suppositions about the wisdom and influence of Jefferson’s words regarding separation have developed largely as a twentieth-century myth—an account that has become popular precisely because it has seemed to provide constitutional authority for separation.”

There’s much, much more in this outstanding book that ought to reshape the Court’s–and, perhaps, even the New York Times’–understanding of the Establishment Clause.




Here’s National Review’s official NO.

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.


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