Bench Memos

NRO’s home for judicial news and analysis.

Supreme Court to Ninth Circuit: Respond to Mandamus Petition


On Monday, the Supreme Court took the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s pending petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in a capital habeas case.

The procedural background is long and complicated, so please pardon this oversimplification:

Graham Henry was convicted of capital murder in 1987 and was sentenced to death, first in 1988 and then on resentencing in 1995. His 12-year-long saga of federal habeas corpus proceedings appeared to come to an end when the Supreme Court denied his certiorari petition in June 2014. But the Ninth Circuit, instead of issuing the mandate to terminate the case, voted to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

Judge Richard Tallman, joined by Judges O’Scannlain, Callahan, Bea, and Ikuta, publicly dissented from the grant of rehearing en banc. (See link above beginning at p. 19.) Here’s the memorable opening to Tallman’s dissent:

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.

The Ninth Circuit’s response is due January 7, 2015.

No Momentum for Reinstating Judicial Filibuster


Senate sources are being remarkably tight-lipped about yesterday’s meeting of Senate Republicans to discuss the terrible idea of reinstating the judicial filibuster, but early accounts from Roll Call and The Hill strongly indicate that there is nowhere near the consensus that would be needed to take that step. Instead, it appears that there is greater support for just leaving things as they are or even seeking to amend the Standing Rules to incorporate the abolition of the judicial filibuster. (I’m fine on the latter alternative but doubt that it is doable.)

Let’s hope that Senate Republicans will now direct their attention to more important matters.


Ninth Circuit Off to A Bad Start This Supreme Court Term (Again)


It doesn’t bode well for the U.S. Court of Appeals for the Ninth Circuit that as of today, half of the Supreme Court’s merits opinions this term have been reversals of Ninth Circuit decisions. Of the court’s four per curiam opinions thus far this term, two were wholesale reversals of the Ninth Circuit with no recorded dissenting votes. In one per curiam opinion last month, the Supreme Court even rejected the Ninth Circuit’s reasoning in a single word: “No.”

In the two merits opinions issued from the bench today, the Supreme Court continued the Ninth Circuit’s stranglehold on the high court’s attention, unanimously reversing the Ninth Circuit in one case and unanimously affirming the Eighth Circuit in another.

At this point last year, by contrast, the Ninth Circuit had garnered only one reversal and was tied with the Fifth Circuit for second place, behind two reversals for the Sixth Circuit.

Things could still turn around in the eleven other Ninth Circuit cases under review this term. But Supreme Court commentators often say that the Court generally doesn’t take cases to affirm them, so purely on the odds, things are looking dark for the Ninth Circuit’s win percentage.

But since it’s Christmastime, let’s think happy thoughts: The Ninth Circuit currently has a 100 percent reversal rate, so even a single affirmance would be improvement.

A Feeble Case in Favor of Reinstating the Judicial Filibuster


Well, finally—more than a month after I and others made the case against the terrible idea of reinstating the judicial filibuster and on the same day that the Republican conference is set to meet to discuss the proposal—someone has written a piece in support of the idea. Michael Hammond’s RedState post is a doozy—a stew of confusions, distortions, and evasions.

Let’s try to work our way through the screed:

1. Let’s start with Hammond’s wildly revisionist history.

a. Here’s his lead sentence:

Back in 2005, a gaggle of so-called conservative lawyers were hatching a Senate parliamentary “con game” called the “nuclear option,” in order to confirm President George Bush’s judicial nominees.

In fact, as this AP article discusses, Republican senators (including institutionalists like Ted Stevens and Trent Lott) began exploring the so-called “nuclear option” in 2003. As a then-member of the Senate leadership has confirmed for me, the effort was driven by Republican members, not by some “gaggle of so-called conservative lawyers,” though it certainly drew support from lots of conservatives, lawyers included. (My own involvement, for what it’s worth, was limited to some blogging in support of cloture reform right at the inception of Bench Memos in May 2005.) By May 2005, it had the support of nearly all Republican senators.

b. Notably missing from Hammond’s discussion is any explicit mention of the unprecedented campaign of partisan filibusters that Democrats launched against President Bush’s judicial nominees in 2003. That omission enables Hammond to obscure the fact that it was the partisan judicial filibuster that flouted Senate tradition and that cloture reform would have respected that tradition.

c. Hammond oddly contends that “many of us warned [in 2005] that the nuclear option was unnecessary to confirm John Roberts and Samuel Alito,” and he somehow claims vindication in the fact that “Roberts and Alito were confirmed without it.” But the effort at cloture reform was a response to the filibuster of lower-court nominations, and that effort concluded before the vacancies for Roberts and Alito even arose, so it would have been very odd for anyone to have been discussing Roberts and Alito as part of the debate. Further, it’s no surprise that the filibuster is a more difficult tool to deploy on Supreme Court nominations, which receive vastly more public attention than lower-court nominations. (That of course didn’t stop Senate Democrats from trying to filibuster the Alito nomination.)

d. Hammond’s confusions set up his charge that “some of the same lawyers who discredited their own judgment in 2005 by creating this mess are opining that we should leave the nuclear option and its consequences in place.” (Emphasis added.)

This charge is at least triply confused. For starters (as noted in 1.a), it confuses some imaginary “gaggle of so-called conservative lawyers” in 2005 with the Senate Republican caucus. Second, whatever one thinks of the Gang of 14 Agreement that ended the battle for cloture reform in May 2005, that agreement, and the confirmations that followed from it, would never have occurred if Republican senators hadn’t pursued cloture reform. Third, does Hammond seriously maintain that Democratic leader Harry Reid and other Democrats wouldn’t have pursued the idea of abolishing the filibuster for lower-court and executive-branch nominees last year if Republican senators hadn’t explored it ten years ago?

2. Hammond’s condemnation of the “nuclear option” as the “equivalent” of “lies, frauds, bribes, and moral corruption” shows that he simply doesn’t understand what the Senate’s constitutional power to “determine the Rules of its Proceedings” means. That power is necessarily a plenary power that a majority of the Senate may exercise at any time to add to or to revise its rules.

I won’t try to offer an extended argument here, but consider this hypothetical: Let’s say that the original Senate had adopted a rule (whether unanimously or by a single-vote margin) that provided that no bill shall be deemed passed by the Senate unless it wins a unanimous vote and that no change to that rule shall be made other than by a unanimous vote. Would that rule have bound the Senate going forward? Of course not. It is simply impossible, as a formal legal matter, for the Senate to adopt and entrench rules against a change by a later majority.

Senate rules that limit the immediate realization of majority sentiment exist and thrive not because of any legal impediment that prevents a majority from changing the rules but because senators perceive the rules to have long-term value that exceeds the short-term benefit of overriding them. (Yes, I realize that some senators and staffers will profess shock at this elementary reality.)

3. Hammond provides no answer to this question that I’ve posed repeatedly:

What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes? 

4. Without bothering to try to provide supporting links, Hammond attributes to opponents of filibuster-reinstatement all sorts of straw-man positions. E.g.:

They argue that the Senate is irreparably destroyed as anything other than a majoritarian institution governed by mob rule whenever it matters.  They also contend that the courts are more important than the preservation of the Senate as an institution….

[They] don’t care whether the confirmation of Supreme Court nominees or the passage of legislation are in line to be “nuked” into non-debatable, unamendable majority votes. [Emphasis added.]

As I’ve explained before, it’s the proponents of reinstating the judicial filibuster who present a far greater long-term threat to the legislative filibuster, as they wrongly maintain that some abstract principle, completely disconnected from Senate practice and history, requires that the legislative filibuster and the judicial filibuster stand or fall together.   

5. As for Hammond’s implication that his position is the real “conservative” position and that anyone who disagrees with him is a “so-called” conservative: Please tell that to all the conservative Republican senators who supported cloture reform in 2005 (including, to cite just a couple of examples, Jim DeMint and Tom Coburn). Please tell that to the more than two dozen conservative leaders who oppose reinstating the judicial filibuster.

To be sure, I could play this “more conservative than thou” game against Hammond by pointing out who some of the folks who share his position are. But this is a very stupid game and shouldn’t detract from a careful assessment of the merits of a proposal.

Silver Leef


A district judge has ruled against the private coinage of silver, and George Leef calls it a constitutional meltdown.


This Day in Liberal Judicial Activism—December 9


1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft. In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

Department of Transportation v. Association of American Railroads: Nondelegation Doctrine, Due Process, or Rebirth of Lochner?


This morning the Supreme Court heard argument in Department of Transportation v. Association of American Railroads (transcript here), a fascinating case about the contours of the nondelegation doctrine, which theoretically places limits on what kinds of responsibility Congress can delegate. Although it was difficult to read the Justices today, they were clearly deeply engaged with the issue. Their engagement is a very good thing because the Supreme Court’s decision will likely have enormous implications for the Constitution’s fundamental structure and the limitations (if any) on the growth of the administrative state.

This case questions the viability of restrictions on the delegation of power to private entities. A 2008 statute instructs the Federal Railroad Administration (FRA) and Amtrak to “jointly” develop what the statute calls “metrics and standards” for Amtrak’s performance. If they fail to agree, FRA appoints an arbitrator to “assist” the parties in resolving their disagreement.

Once the “metrics and standards” are in place, the law requires Amtrak and the freight railroads (who own almost all the track that Amtrak uses) to incorporate them into their operating contracts. If Amtrak fails to meet certain of these standards, the Surface Transportation Board (STB) can investigate and ultimately award damages and other relief against a freight railroad if Amtrak’s problems were “attributable” to that freight railroad.

It’s a fairly convoluted system that is designed to create the appearance of agreement and consent between the actors, even though the government always holds the whip hand. It’s also clear that Amtrak is the chief beneficiary of this regulatory game.

But the requirement that FRA and Amtrak “jointly” develop the standards creates a problem: Although it has a federal charter, Amtrak is a separate corporation and by law is required to be run as a for-profit entity. Even if the purpose of the statute is to give Amtrak and FRA extra bargaining power against freight railroads (who must, under federal law, grant preference to Amtrak trains), the statute also gives Amtrak power over FRA. After all, Amtrak can withhold consent in an attempt to extract concessions from FRA. Thus, the statute gives Amtrak—a private or governmental entity, depending on how you look at it—the shared power to write legally effective rules with FRA.

This power runs squarely into a New Deal–era case called Carter v. Carter Coal Co. (1936), in which the Supreme Court struck down a statute that required a cartel of coal companies to set wage and hour limitations and then gave those limitations the force of law. In striking down the statute, the Supreme Court concluded that the law was both an unlawful delegation and a violation of substantive due process:

The power conferred upon the majority is, in effect, the power to regulate the affairs of an unwilling minority. This is legislative delegation in its most obnoxious form; for it is not even delegation to an official or an official body, presumptively disinterested, but to private persons whose interests may be and often are adverse to the interests of others in the same business. . . . And a statute which attempts to confer such power undertakes an intolerable and unconstitutional interference with personal liberty and private property.

The plaintiffs argue that Carter Coal is still good law. The D.C. Circuit, with Judge Janice Rogers Brown writing for the unanimous panel, agreed with the plaintiffs and struck down the statute. The government then sought review by the Supreme Court.

The government’s oral argument was mostly uneventful. Early discussion centered around the legal significance of whether Amtrak was governmental or private (which is a close question). Justice Kennedy pointed out that in cases such as Marsh v. Alabama (1946) (state municipal corporation and private corporation owning “company town” subject to same constitutional limitations under First and Fourteenth Amendments), the Supreme Court didn’t seem to care about that distinction. Justice Alito asked why, if Amtrak was to be considered governmental for purposes of the nondelegation doctrine, it shouldn’t also be subject to the Appointments Clause, a line of discussion that Justice Scalia picked up later.

Justice Sotomayor, perhaps sensing that the other justices had laid a foundation for deciding the case without resolving Amtrak’s ambiguous situation, suggested that the case could also be decided by concluding that the “metrics and standards” were not regulatory in nature. But the Chief Justice countered, getting the government lawyer to confirm that the new “metrics and standards” had an enormous effect on Amtrak’s performance. Thus, the new standards must have had some regulatory effect. Both sides agreed that the metrics created such an effect through the meaningful threat of regulatory action against freight railroads. Even Justice Kagan espoused this view, pointing out that violations of the “metrics and standards” could result in damage awards against the freight railroads. This was clearly a blow to the government, which had been at pains to emphasize in its briefs that the “metrics and standards” only applied squarely to Amtrak.

Justice Breyer asked then whether upholding the plaintiffs’ position would “wreak havoc” on various regulatory schemes. This line of attack seemed to surprise the government’s lawyer, who responded that everything depended on the breadth of the Court’s holding.

And then it happened: Justice Breyer looked right at Justice Scalia and asked whether deciding the case for the plaintiffs would take us all back to Lochner v. New York (1905), the first in a pre–New Deal line of cases that used substantive due process principles in defense of economic liberty. Lochner has long been invoked in legal discussions as a reductio ad absurdum: What you’re proposing would take us back to the Lochner era, so you must be wrong. (If you are familiar with Godwin’s Law for Internet discussions, substitute “Lochner” for “Nazis” and you’ve basically got the idea.) But interestingly, Justice Breyer’s concerns didn’t seem to garner much sympathy from the other justices.

When it was Respondents’ turn, attorney Thomas H. Dupree, Jr. argued without notes and with what must be a photographic memory. Justice Sotomayor expressed skepticism about the thin line between this case and the set of cases where the Court approved statutes that allowed businesses to veto regulations. Dupree responded that the government, not the businesses, wrote those regulations.

Justices Ginsburg and Kagan delved into the dispute about whether Amtrak is governmental or private, highlighting the oddness of Amtrak’s position. Here, the public proclamations of congressional statutes and Amtrak’s management—all of which emphasize Amtrak’s independence—are directly at odds with the actual mechanisms of control that the government maintains over Amtrak. Although Dupree steadfastly maintained the view that Amtrak was legally a private entity, Justice Scalia reminded Dupree that Amtrak’s status wouldn’t matter to due process analysis.

The closing minutes of Respondents’ argument and the government’s rebuttal were devoted to the government’s strongest argument: There’s no delegation in the first place because the government controls the outcome of the process. Sure, the statute says FRA and Amtrak have to “jointly” agree on the metrics and standards, but if they can’t agree, then the government can appoint its own arbitrator with none of the usual due process protections that usually apply to government arbitrations. As a result, the government argued, the government always wins. There’s a certain cold logic to this argument, but it’s a bit odd to see the government defending a federal statute on the grounds that the process is a sham.

Although the justices were engaged, an unusual number of justices played their cards close to the chest. Justice Breyer was clearly worried about the implications of striking down the statute under any theory. Justice Sotomayor was looking for a way to dispose of the case without addressing the constitutional issue. Former administrative law professor Justice Scalia seemed very receptive to deciding the case on substantive due process grounds, as did Justice Kennedy. Justice Alito seemed unsympathetic to the government, but didn’t give away much else. Justices Roberts, Ginsburg, and Kagan were cautious, but seemed somewhat amenable to striking down the statute on narrow nondelegation grounds. We shall see.

Senator Hatch: Don’t Reinstate the Judicial Filibuster


According to Politico’s report last week, Republican senators are set to meet tomorrow to discuss the terrible idea of reinstating the judicial filibuster. In Politico today, Senator Orrin Hatch (for whom I worked two decades ago) weighs in strongly and soundly against reinstatement. Some excerpts:

[R]eturning to the pre-nuclear option filibuster rule would serve neither the interests of the Senate as an institution, nor constitutionally limited government more broadly.


While the legislative filibuster has been critical to the Senate’s deliberative lawmaking for more than two centuries, use of filibusters to defeat nominees who have majority support is a decidedly recent phenomenon. In fact, the first such nomination filibuster occurred in 2003—hardly an historic practice.…


A temporary return to the 60-vote threshold would last only until the next Democratic majority found abolishing the rule in its political interest.…


[A]n immediate return to the prior nominations standard under Republican control would only reward Democrats for their misdeed and—since they have reaped the benefits but borne none of the costs—Democrats would have further incentive to engage in procedural abuses. Such a return would do nothing to prevent the same cycle of abuse from repeating itself in the future. To safeguard the Senate’s core procedural protections—including the indispensible and truly historic legislative filibuster—Democrats must live with the consequences of such abuses when voters return them to the minority.


As important as the institutional harm to the Senate is the significant damage done to the federal judiciary. Democrats used the nuclear option to pack important courts like the D.C. Circuit with far-left judges, some of whom have already begun to ratify President Obama’s executive lawlessness in health care, environmental regulation, and elsewhere. The next Republican administration will have to work hard to restore balance to the federal courts.


Reinstating the 60-vote threshold for nominees would make this task impossible and serve to perpetuate the imbalance. Republicans would need 60 votes to confirm their nominees, while Democrats needed only 51 votes to confirm their own picks. Such a partisan double standard makes no sense and would cause irreparable harm to our third branch of government. To restore the prior nominations threshold would be to cede the federal judiciary to liberal activists.

This Week’s Supreme Court Highlight: How Much Can Congress Delegate?


With one significant exception (which I’ll discuss in a moment), this week’s Supreme Court oral arguments concern important but mostly mundane matters. The high court will hear arguments about taxes twice, appellate subject matter jurisdiction once, and equitable tolling of statutes of limitations under the Federal Tort Claims Act twice.

The one case having truly profound implications for the Constitution’s separation of powers will be heard late this morning, in Department of Transportation v. American Association of Railroads. The issue, in a nutshell, is this: Does the Constitution permit Congress to delegate regulatory authority to a private actor?

In 2008, Congress passed the Passenger Rail Investment and Improvement Act, which required the Federal Railroad Administration and Amtrak, an aspirationally for-profit corporation with a federal charter, to jointly develop performance standards for freight railroads. Under federal law, you see, Amtrak gets preferential treatment over freight transport in the use of railways. The PRIIA thus allows Amtrak and the FRA to gang up on freight railways by creating standards for determining whether the freight railroads have given Amtrak appropriate preferential treatment. If FRA and Amtrak can’t agree on criteria within 180 days, the FRA’s Surface Transportation Board appoints an arbitrator who will “assist the parties in resolving their disputes through binding arbitration.” (As you can see, “assisting” the parties in making regulations through “binding arbitration” is a euphemism for “writing the regulations” at least some of the time.)

The D.C. Circuit, in a unanimous opinion written by Judge Janice Rogers Brown, concluded that the statute was unconstitutional because it delegated regulatory power to a private entity, namely, Amtrak. In the Supreme Court, the Department of Transportation is arguing basically two things: (1) Congress has the power to allow private parties to develop regulations (relying on the absence of Supreme Court case law striking down legislation under Carter v. Carter Coal Co. (1936)); and (2) Amtrak is not a “private” entity for nondelegation purposes so Carter cannot apply. The respondents argue: (1) Carter bars this as an unconstitutional delegation of regulatory power to a private party; (2) Amtrak is not a federal agency for the purposes of nondelegation analysis and therefore Carter applies; and (3) the arbitration provision violates the Due Process Clause.

Will the Supreme Court find an unconstitutional delegation and reaffirm Carter? Or will it reverse Carter and stick another knife into the nondelegation principle? Or will it say Amtrak is not a private entity?

While we wait to find out, read the briefs filed in the case on SCOTUSblog’s case page here.

This Day in Liberal Judicial Activism—December 8


1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.

In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”

Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

This Day in Liberal Judicial Activism—December 5


1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider future-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona. Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge. Under an express exception (“(b)(1)”) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.” But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling. “The language of (b)(1),” it concludes, “is without ambiguity…. Clearer language than this is difficult to envisage. Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them. In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms. Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear.”

Dissenting months later from the denial of rehearing en banc, Judge Alex Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.… But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Andrew Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.” “The military meaning,” Kleinfeld acknowledges, “is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’ But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’” And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.” Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices reject Reinhardt’s position (even as they split 5-4 on the scope of the individual Second Amendment right).

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

Becket Fund Now Accepting Resumes


If you’ve been following religious-liberty issues in recent years, you’re familiar with The Becket Fund, a religious-liberty law firm that defends people of all faiths. Here’s an announcement from their website welcoming applications for a full-time Legal Counsel position:

The Becket Fund for Religious Liberty seeks an attorney to join its team of legal counsel advocating for religious liberty for people of all faiths. The ideal candidate will have the following qualifications: (a) one to three years of active litigation experience, preferably in federal court; (b) excellent research, writing, and oral advocacy skills; and (c) a federal or state appellate clerkship.

Applicants should send a cover letter, resume, and two writing samples to Elizabeth Dobak at [email protected].

Senate Republicans “Unlikely” to Reinstate Judicial Filibuster


That welcome news comes from this Politico article. Some highlights:

[A] number of senior GOP senators like Orrin Hatch of Utah and even junior Republicans like Ted Cruz of Texas are signaling privately and publicly that they want to stay at the 50-vote threshold set by Reid’s Democratic Senate majority.

Kentucky Sen. Mitch McConnell, the incoming majority leader who has not publicly taken a position on the matter, has been making the argument privately that it’s long been historical precedent that a simple majority of senators — not 60 — have been able to confirm presidential nominees, according to several senators.

Others have been more forceful, saying it makes little sense to engage in a messy fight over the filibuster rules when Democrats may lower the threshold again should they take the majority in 2016 or beyond. Now that the Democrats have changed the rules, future Republican presidents, too, should benefit from a weaker filibuster, several GOP senators said Wednesday.

The change that Democrats made was “long-term and permanent,” said Sen. Roy Blunt (R-Mo.), a member of his party’s leadership.

“I think it’s well within the traditions of the Senate for a majority to decide nominations and a supermajority to decide legislation,” Blunt said….

[John] Cornyn said he had not taken a position yet but added that Republicans “have to recognize that if Democrats got the majority again, no matter what we did, they would probably take it back to 51. They’ve really shown their colors on that.”

Cruz, the Texas firebrand and potential presidential candidate, has privately voiced a similar view, arguing that Democrats would simply change the filibuster rules later if Republicans acted now, sources said.

A number of senators are reluctant to engage in a messy fight right off the bat in a new majority. Kansas Sen. Pat Roberts, the ranking member of the Rules and Administration Committee, said the new GOP-led Senate should first focus on bipartisan votes before acting on the filibuster.

The article also nicely explains how, even if Republican sentiment were otherwise, there’s no good procedural route to reimpose the filibuster.


According to the article, the idea of reinstating the judicial filibuster will be discussed by Republican senators at a meeting next Tuesday. Let’s hope this very bad idea dies a very quick death.

Both Sides of the Filibuster-Reinstatement Debate


I gather that the terrible idea of trying to reinstate the filibuster for lower-court and executive-branch nominees continues to distract Republican senators from far more important things. So I figured that I’d compile the public arguments that have been made on both sides of that issue:

1. On the side against filibuster-reinstatement, pardon me for leading with my own morning-after-Election Day essay on NRO, “Don’t Bring Back the Judicial Filibuster.” I’ve supplemented that essay with numerous Bench Memos posts, including:

Senator Sessions Against Unilateral Disarmament

Judicial Versus Legislative Filibusters

Lindsey Graham’s Myopia

More Bad Arguments for Filibuster Reinstatement

And I’ve still received no answer to this elementary question that I’ve posed to reinstatement proponents:

What possible reason is there to think that Democrats, when they regain control of the Senate, wouldn’t abolish the judicial filibuster as soon as there is a Democratic president? And if you don’t have a compelling answer to that, why are you supporting a change that would mean that when Democrats control the Senate, liberal nominees would need only a simple majority to get confirmed, but when Republicans control the Senate, conservative nominees would have to pass the much higher threshold of 60 votes? 

Among the other resources against filibuster-reinstatement that I’d recommend:

House editorial in the Wall Street Journal, “Republicans and the Filibuster: The Senate GOP shouldn’t create a double standard for nominees

House editorial on National Review Online, “No to the Judicial Filibuster

Wall Street Journal op-ed by Senator Orrin Hatch and former White House counsel Boyden Gray, “After Harry Reid, the GOP Shouldn’t Unilaterally Disarm

Memorandum from more than two dozen conservative leaders opposing reinstatement of the filibuster

Quin Hillyer’s NRO essay, “Leave the Nuked Filibuster Alone

2. And, now, for the essays in favor of reinstating the filibuster, I’m pleased to highlight ….

Oops, where are they? Oh, how strange! So far as I’m aware, none of the actual proponents* of  reinstating the filibuster has even tried to present a public argument in writing—much less a comprehensive argument that explains the reasons for the proposal, carefully assesses the foreseeable consequences, and answers the arguments against. Why might that be, I wonder? Perhaps because proponents recognize that the less that Republican senators understand the proposal, the more likely they are to support it (perhaps mis-imagining that it’s some way to get back at Harry Reid).

* On Power Line, Paul Mirengoff urged that Senate Republicans be “opportunistic” by re-imposing the filibuster for President Obama’s last two years and then abolishing it again in 2017 if a Republican is president. That approach has zero support among the reinstatement proponents in the Senate—and, indeed, flies headlong against the arguments they are making.

Scalia Theater


In today’s Wall Street Journal, Jess Bravin writes about new works of art (loosely defined)—“a stage play, an opera, and a puppet show”—that feature fictional Justice Scalias. Bravin kindly provided me excerpts of each to review and includes my negative assessment:

If you want to understand Scalia, this is a bad place to start. If you want a good night on the town, surely you can find better options.

Reviewing my notes, I see that I found the stage play, “The Originalist,” and the puppet show, “The Complete History of Comedy (abridged),” to be inane and incompetent in their treatment of legal issues. The opera, Scalia/Ginsburg, struck me as more intelligent. (Again, I reviewed only excerpts of each.)

Embarrassing, Indeed


In a New Republic piece titled “The Latest Challenge to Obamacare Should Embarrass Conservative Judges,” Brian Beutler makes an argument that ought to embarrass him. His central claim is that a statutory provision is ambiguous—and thus invites so-called Chevron deference to an agency’s reasonable interpretation—if “judges and scholars” who aren’t “daft or corrupted or engaging in some kind of conspiracy” have come up with a meaning that differs from the one that challengers to the agency’s interpretation are advancing. He cites no authority for his claim.

But a judge will find a statutory provision to be ambiguous only if he concludes that the sound application of the correct tools of statutory interpretation yields, at the end of the analysis, more than one reasonable meaning of the provision. (The Chevron ruling itself states that a judge must “employ[] traditional tools of statutory construction.”) The fact that other judges have come up with other meanings might suggest that the provision is ambiguous, but it might instead mean that those judges, in the eyes of the judge now deciding the issue, didn’t soundly apply the right analytical tools. (That wouldn’t mean that the other judges were “daft”; among other things, interpretive principles are contested, and not all issues are simple.) In any event, a judge can’t farm out the ambiguity inquiry to other judges (much less to “scholars”) by holding that the fact that other judges have, by whatever paths, come up with other meanings somehow establishes or indicates that a provision is ambiguous.

This Day in Liberal Judicial Activism—December 3


2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a unanimous per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

Louisiana Supports Cert Before Judgment in Marriage Case


The state of Louisiana, having successfully defended its marriage laws in federal district court (in Robicheaux v. Caldwell), is supporting plaintiffs’ request that the Supreme Court grant review of the district-court ruling before the Fifth Circuit rules on their appeal. Although that step is highly unusual, it makes sense under the circumstances. As Louisiana explains:

Petitioners are right that the extraordinary mechanism of cert-before-judgment is appropriate here…. Louisiana’s case squarely implicates a spiraling national controversy that has already nullified the marriage laws of over twenty States and spawned a four-to-one circuit split. Multiple petitions are pending before this Court, presenting the same issue in various forms. The Robicheaux decision was the first federal ruling since Windsor to uphold a State’s marriage laws; only the Sixth Circuit’s DeBoer decision has joined it. Robicheaux and DeBoer are the sole counterweights* to a flood of decisions condemning the view that marriage is limited to male-female couples—a view that “until recent years … had been thought of by most people as essential to the very definition of [marriage] and to its role and function throughout the history of civilization.” Windsor….

[R]eviewing the Louisiana case along with one or more petitions from the Sixth Circuit will allow the Court to consider a wider range of marriage laws, defended by a wider array of legal arguments.

* As Louisiana notes in the body of its pleading, there is also the recent ruling by a federal district judge in Puerto Rico rejecting a challenge to Puerto Rico’s marriage laws.

Chief Judge Wood Responds


In addition to Judge Easterbrook, Seventh Circuit chief judge Diane Wood has also kindly sent responses to the questions I posed yesterday about Seventh Circuit motions panels. I copy below my questions and, in bold, her answers:

1. How are Seventh Circuit motions panels composed? Do judges take turns as the lead motions judge, with additional judges randomly assigned to join them for matters that call for decision by two or three judges? Or do the chief judge or other senior judges have some special role?

(Section 1(b) of the Seventh Circuit’s internal operating procedures says, “The responsibility to handle motions shall be rotated among the judges.” That proposition apparently applies to motions handled by single judges. Whether it also applies to motions handled by two judges or three judges is unclear. Section 1 also spells out which motions should be handled by more than one judge.)

Chief Judge Wood: Motions panels are set for each six-month period. A motions judge is set for each week, and Judge 2 and Judge 3 for the panel are also specified. The motions judge rules on all one-judge motions, and the panel handles three-judge motions. For the next week, Judge 2 moves up to the Motions judge slot, Judge 3 is in the next position, and a new Judge 4 fills out the panel. If one judge is disqualified, then the motions staff contacts the next judge in the rotation.

2. Under Seventh Circuit policy or practice, who on a motions panel decides whether to recommend that a particular matter be assigned to the motions panel for a decision on the merits? Is that effectively the decision of the senior judge on the panel? Or does it require a majority or unanimous vote of the panel members?

(Section 6(d) of the Seventh Circuit’s internal operating procedures provides: “When a motion panel decides that a motion or petition should be set for oral argument or the appeal expedited, it may recommend to the chief judge that the matter be assigned for argument and decision to the same panel.”)

Chief Judge Wood: The panel decides as a whole whether to keep the case.

3. Under Seventh Circuit policy or practice, does the chief judge ever disapprove a motions panel’s recommendation that a matter be assigned to that panel for a decision on the merits?

Chief Judge Wood: No, as far as I can recall.

4. Are there any recognized standards under Seventh Circuit policy or practice that govern a motions panel’s decision whether to recommend that a matter be assigned to that panel for a decision on the merits?

Chief Judge Wood: The judges will consider such factors as the amount of time the panel members have already invested in the matter, the similarity of the issues involved in the motion with the issue involved in the merits decision, and the need to schedule a prompt hearing. 

Judge Easterbrook Responds


Seventh Circuit judge Frank Easterbrook, who served as chief judge of the Seventh Circuit from 2006 to 2013, has kindly sent me responses to the questions I posed yesterday about Seventh Circuit motions panels. Here are his responses:

1. The Seventh Circuit rotates motions duty on a schedule fixed every six months. The Senior Staff Attorney asks judges when they are available and uses that information to compose panels that last one week. For each week there is an assigned motions judge (who handles all one-judge motions that arrive during the week and makes recommendations to the panel about three-judge motions) and two other members. I attach the schedule for the second half of 2013, so you can see how this works. (I can’t give you current or future schedules, because the Seventh Circuit does not announce future panel composition to the public.) Judges usually serve on the motions panel for three consecutive weeks, though only one week as motions judge; each week, one new judge joins the panel and one drops off.

All active judges serve an equal number of weeks on the panel (and as motions judge) during the course of a year. Senior judges participate, or not, at their option. They tell the Senior Staff Attorney what portion of an active judge’s schedule they are willing to undertake.

Motions filed during a panel’s week stay with that panel, even if a request for a response means that the case is not ready for submission until the panel has changed. This ensures that neither counsel nor any judge can manipulate the assignment system. Effectively locking a case to a panel by the date the motion is filed means that the process produces a random distribution of assignments over the year. (Counsel don’t know who is on that week’s panel or who will be on the next week’s, so they can’t time their motions to produce assignment to as particular panel.)

2. When a motion requires the panel to consider the merits to some degree—for example, when the movant requests permission to take an interlocutory review of a class-certification order, or permission to appeal under 28 U.S.C. §1292(b)—the motions panel decides whether it wants to keep the case for decision on the merits too. The principal consideration is whether the panel has gotten deeply enough into the merits that it would be sensible to continue, rather than require three other judges to learn the case from scratch. This isn’t written in any rule or operating procedure, but it has been the court’s practice since I was appointed in 1985.

Normally the the motions judge (who will be the most senior judge on the panel only about a third of the time) makes a recommendation about this to the whole panel, but any member of the panel is free to make a recommendation independently (or to disagree with the motions judge). The panel then decides by consensus. Some judges are more apt than others to prefer keeping a case, but the process is the same for all judges—and all have an equal chance to keep cases for decision on the merits.

3. Although the operating procedures say that the panel will refer the matter to the Chief Judge for assignment, this rarely happens—and no one wants it to be done routinely. As a practical matter, the issue is referred to the Chief Judge only when the panel is internally divided about whether to retain the case for decision on the merits. During my seven years as Chief Judge, that happened only once. I assigned that case to the motions panel for decision on the merits.

(I’ve added in the hyperlink to the schedule that Judge Easterbrook attached. ​Please note that Judge Easterbrooks’s response to my question 2 also answers my question 4.)


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