Bench Memos

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This Day in Liberal Judicial Activism—November 28


1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law. 

This Day in Liberal Judicial Activism—November 21


2013—By a 52-48 vote (with all Republicans and three Democrats voting no), the Senate abolishes the filibuster—the 60-vote cloture threshold—for lower-court and executive-branch nominees. The immediate effect of the abolition is to enable the confirmation of three D.C. Circuit nominees.

More broadly, Senate Democrats succeed in proving that they can dish it out but can’t take it. A decade earlier, now-Senate majority leader Harry Reid and other leading Democrats launched their unprecedented campaign of partisan filibusters against President George W. Bush’s judicial nominees, and they bitterly (and successfully) resisted Republican efforts in 2005 to abolish the filibuster. Reid, for example, voted against cloture at least 25 times on 13 different Bush nominees, but he is outraged that Republicans defeated a grand total of seven cloture motions on President Obama’s nominees.  


Chief Judge Kozinski Responds


By e-mail, I took the liberty of sending Ninth Circuit chief judge Alex Kozinski my post from Tuesday titled “Hijinks in the Ninth Circuit Clerk’s Office?” and asked whether he might be willing to answer some questions from me on the record. Chief Judge Kozinski generously agreed to do so. Here are my questions and his answers. (For sake of clarity, I’ve inserted “[AK:]” before his answers and “[EW:]” before a couple of my remarks.) 

1. When did you first learn that the clerk’s office had a practice of assigning expedited cases to the available panel with the most senior presiding judge?

[AK:] It’s been the practice as far back as I can remember.

2. When (if ever) were Ninth Circuit judges generally informed of this practice?

[AK:] I don’t know.  Perhaps before my time.

3. When did this practice begin?

[AK:] I don’t know.

4. Is this a practice that the clerk’s office maintains was followed uniformly?

[AK:] This has been our practice and I have no reason to doubt it’s been followed.

5. What steps, if any, have you or your predecessors as chief judge taken to ensure that no individual in the clerk’s office has discretion to assign a known case to a known panel?

[AK:] We train and supervise our staff and trust them to follow instructions.

[EW:] (The law-review article that I refer to in this post might be of interest to you.)

[AK:] No.

6. What steps, if any, have you or your predecessors as chief judge taken to address concerns that Judge Reinhardt seems to be favored by the case-assignment process?

[AK:] As you know, this has been made the subject of a pending petition for rehearing so I cannot comment.

[EW:] I of course welcome any additional comments you may have.

[AK:] Nothing further.  Have a good day.

I then asked Chief Judge Kozinski whether he would entertain follow-up questions, and he again generously agreed to do so. Here are my questions and his responses:

1. Given that you have long been aware of the practice, what led you to change it only recently?

[AK:] It was discussed during an Executive Committee meeting a few months ago and a majority expressed a preference for selecting among similarly-situated panels by random draw.

2. What was the justification for the old practice?

[AK:] I suppose it was viewed as consistent with our general practice of deferring to seigniority, such as selecting who presides, order of speaking at conference and assignment of opinions.  I can’t be sure as I wasn’t around when the practice got started.  Can’t say I gave it much thought.


I’ll probably reserve any further comments on this matter until I return to the office next week. In the meantime, if there are any other Ninth Circuit judges who would like to weigh in with their insights (either on the record or with a general descriptor (e.g., “a Democratic appointee”)), please contact me.

Update (around 4 p.m.): I’ve already heard from one Republican appointee on the Ninth Circuit who had never heard of the clerk’s office practice. (The most recent Republican to join the court joined it in 2007, so every Republican appointee has had at least the last seven years of experience.)

Arguments in Alabama Voter Redistricting and State Income Tax Cases


Of the four Supreme Court arguments last week, Wednesday’s were the most interesting as the Court turned to controversial issues of race and state voter redistricting and the Dormant Commerce Clause doctrine.

Redistricting: Alabama Legislative Black Caucus v. Alabama & Alabama Democratic Conference v. Alabama

In the first argument, which consolidated two cases challenging Alabama’s race-conscious redistricting plans (which had previously been approved by the Obama Justice Department), the central legal issue before the Court was to what extent the state could consider the role of race in its redistricting. The plaintiffs were arguing that on the one hand, the Voting Rights Act required the states to create districts that contained minority populations of substantial enough size to allow meaningful choice in the election of candidates, thus taking race into account; on the other hand, states could not move district lines to incorporate too many new minority voters because that would be race-based “packing.”

During the first appellant’s argument, Justices Roberts and Scalia were troubled by the apparent Scylla and Charybdis that states would be required to navigate under the plaintiffs’ theory:

CHIEF JUSTICE ROBERTS: So you want, on the one hand – they obviously had to move new voters into the majority-minority districts because they were all underpopulated, and they need to move enough so that the minorities have an opportunity to elect candidates of their choice, but they can’t move too many because that would be packing, correct?

MR. PILDES: Your Honor, we understand that States are in a bind in this situation as has been true under Title VII and under the Voting Rights Act under Section 2.

 The lawyer for the Alabama Legislative Black Caucus, Richard Pildes, did not appear to be able to assuage the justices’ fears on this point. Justice Scalia also observed that the plaintiffs’ objection to “packing” was similar to what defendants in such cases historically used to argue against black plaintiffs, an ironic twist.

Justice Kennedy worried that the plaintiffs’ legal theory would create a one-way partisan ratchet by allowing the legislature to consider race in creating majority-minority districts for partisan reasons, but then disallowing the legislature from undoing those changes for purely partisan reasons. (He repeated his concern about the one-way ratchet during U.S. Solicitor General Donald Verrilli’s argument, indicating that it was a significant issue for him.)

When the second appellant took the podium, the Alabama Democratic Conference, Justices Alito, Breyer, and Sotomayor drilled into the specificity of the asserted harms, i.e., whether the claims were made on a district-specific basis or statewide. Although Justice Kagan asked a question pointing out where in the record such specificity might be found, Justice Breyer remained concerned that the district court had erred in construing the complaint, requiring a remand and effectively resetting the litigation.

During the government’s argument as amicus, Solicitor General Verrilli picked up the specificity criticism. This prompted pushback by Justice Kagan about statements by the legislators who had drafted the redistricting plan who promised to maintain the racial composition of existing districts.  Turning to the question of what would happen on remand, Chief Justice Roberts then queried whether Verrilli was concerned that redistricting on remand would no longer be subject to the Voting Rights Act’s preclearance requirement (thanks to the Court’s 2012 decision in Shelby County v. Holder). Oddly enough, he wasn’t.

Alabama Solicitor General Andrew Brasher faced aggressive questioning from Justice Kagan, who was skeptical that race had not predominated in several districts because the racial composition of these districts was “completely replicated” under the redistricting plan. Citing chapter and verse, however, Brasher relied on the factual findings below to make a detailed factual case that the redistricting was not motivated by intentional discrimination, that many districts had not changed racial composition at all under the new plan, and that alternative plans proposed by the plaintiffs had the same demographic proportions for most of those same districts. This didn’t seem to persuade Justice Kagan, though, who continued to point to the policy statement that she had referred to earlier.

At one point, Justice Kennedy asked what was the primary purpose of the new district proportions, leading Brasher to laying out another very detailed factual defense of the districts. In particular, Brasher repeatedly emphasized that the plaintiffs had never proposed a redistricting plan that could satisfy the state’s criterion of having no more than 2% deviation in population from previous districts, which would preserve one-person-one-vote.

In all, I did not discern a clear lineup among the justices. I suspect we’ll see a divided opinion with Justice Kagan, Justice Kennedy, and Chief Justice Roberts writing significant opinions, but I’m not confident about much more than that.

Dormant Commerce Clause: Maryland State Comptroller v. Wynne

Immediately following that case, the Supreme Court heard arguments about whether the Constitution guaranteed a resident of one state the right to a credit for taxes paid to another state for income earned in that state.

The plaintiffs in this case were arguing that because Maryland structured its taxes to give incomplete credit for income taxes paid to another state, it would in effect would be charging its residents higher taxes for out-of-state income, Maryland was creating a tariff on interstate commerce.   The lower court concluded that the dormant Commerce Clause—which I’ll get to in a moment—prohibited such an implicit “tariff.” Maryland’s argument was just what you’d expect: the state can tax the entire income of its residents, wherever earned.  Thus, the state has no obligation to give credit for taxes paid in other states.

Three basic positions appeared to exist among the justices. Justice Scalia appeared to be of the “life isn’t fair” school, as indicated in the first question of the argument:

JUSTICE SCALIA: Right, you’re on the principle that life is not fair, right?

MR. BROCKMAN: Life is not fair. Maryland taxes are. (Laughter.)

Justices Roberts and Kennedy seemed most interested in exploring the burdens of Maryland’s tax scheme on interstate commerce, with Justice Alito finally asking a question that pointed out the form/function question:

JUSTICE ALITO: The question is not whether California can tax the income of its residents wherever they make it or whether California can tax all income earned within the border of California. The question is whether it can do both, whether and that’s the question with respect to you. Can you tax all income earned within your border, whether by resident or by nonresident, and also tax income earned by your residents in in other States?

The tax economists’ brief points out that this what you’ve done operates exactly like a tariff, because it provides an incentive to earn income in Maryland and not outside of Maryland. Now, do you dispute that as a factual matter? And if you don’t dispute it as a factual matter, why shouldn’t this tax system meet exactly the same fate as a tariff?

MR. BROCKMAN: I don’t dispute the mathematics. They lose me when they switch from tariffs to income taxes, but I’m not an economist. The difference, though, is that the we’re talking about the effect of two States’s axes. Now, they’ve talked about two States’ taxes by using what they call a heuristic device of hypothesizing that the other State has the exact same set of taxes. Fine. We can do that, too.

But the point is that it’s the combined effect. That means that Maryland’s taxes, the validity of Maryland’s tax, will turn on how another State exercises its taxing powers.

This point generated some interest from Justices Scalia and Ginsburg, who appeared to support Maryland’s claim to having an independent taxing power. But Chief Justice Roberts again drove toward the form/function argument:

CHIEF JUSTICE ROBERTS: . . . The way you test under our precedents whether one State has to yield or not is to say, well, let’s suppose each State does exactly the same thing, neither one is yielding. And as indicated earlier, the example in the Respondents’ brief is that if each State did what we’re talking about, people who work in one State and live in another would pay higher taxes overall than people who live within one State and work in the same State. And that sounds to me like a tariff.

During the plaintiffs’ argument, Justices Ginsburg, Kennedy, Sotomayor, and Kagan focused on the free-rider problem created by application of the dormant Commerce Clause to the plaintiffs, asking why it was fair that a resident of Maryland should get away with paying Maryland no taxes based on credit for out-of-state income.

My best guess is that a majority composed of the court’s liberals and Chief Justice Roberts (and perhaps Justice Scalia concurring in the judgment) will end up supporting Maryland. Justices Kennedy and Alito were more skeptical of the tax regime, so I don’t know quite where they will go.

Whatever the final lineup, I suspect we will see a separate opinion by either Justice Scalia or Thomas decrying what Justice Scalia called the “imaginary negative Commerce Clause.” Originally established in 1873 after being the subject of Supreme Court dicta for 50 years, this doctrine is effectively a quasi-penumbral view of the Commerce Clause: only Congress has the power to regulate interstate commerce; therefore states cannot do so, even when Congress hasn’t exercised its power.

Justice Scalia made his views about dormant Commerce Clause doctrine known shortly after joining the court. In his separate opinion in Tyler Pipe Industries v. Washington State Dept. of Revenue (1987) (citations omitted), he wrote:

It takes no more than our opinions this Term, and the number of prior decisions they explicitly or implicitly overrule, to demonstrate that the practical results we have educed from the so-called “negative” Commerce Clause form not a rock but a “quagmire.” Nor is this a recent liquefaction. The fact is that in the 114 years since the doctrine of the negative Commerce Clause was formally adopted as holding of this Court, and in the 50 years prior to that in which it was alluded to in various dicta of the Court, our applications of the doctrine have, not to put too fine a point on the matter, made no sense. 

And Justice Thomas wrote a separate opinion in United Haulers Ass’n v. Oneida-Herkimer (2007) (citations again omitted):

The negative Commerce Clause has no basis in the Constitution and has proved unworkable in practice. As the debate between the majority and dissent shows, application of the negative Commerce Clause turns solely on policy considerations, not on the Constitution. Because this Court has no policy role in regulating interstate commerce, I would discard the Court’s negative Commerce Clause jurisprudence.

The Court will take the remainder of November off from arguments and begin again in early December.

More Bad Arguments for Filibuster Reinstatement


In addition to my NRO essay on why reinstating the judicial filibuster is a terrible idea, I’ve addressed Senator Lindsey Graham’s bad arguments. And I’m still waiting for reinstatement proponents to offer an answer to these questions of mine:

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? 

Remarkably, some proponents seem to think that their desire for an entrenched and durable judicial filibuster somehow makes it sensible for them to support a step that wouldn’t plausibly lead to entrenchment of a durable judicial filibuster and that would inflict severe damage on conservative judicial nominees.

One other bad argument I’ve heard is that conservatives—as distinguished from Republicans—will always be a minority, so it’s supposedly in the interests of conservatives to bolster the rights of the minority.

This argument can’t survive scrutiny.

Most importantly, even if conservatives will always be a minority, a Republican majority can generally be counted on to confirm conservative judicial nominations made by a Republican president. Reinstating the judicial filibuster would instead transfer massive power to liberal senators to block those nominations. As a result, many of the best conservative candidates wouldn’t even offer themselves for nomination.

By contrast, when a Democrat is president and the Republicans have a majority, the conservative power to filibuster nominees would mean little. I’ve already explained (in point 2 here) why the filibuster in that context would generally be unnecessary and could be destructive. I’ll add that most supposed Democratic “moderates”—the kind whom conservatives would be unlikely to filibuster—are really just stealth liberals, so that’s further reason to doubt that a filibuster would achieve anything. (Besides, does anyone really think that there are 41 steadfast, rock-ribbed conservatives in the Senate?)

And when a Democrat is president and the Republicans are in the minority, Senate Democrats will simply re-abolish the filibuster, so conservative senators would have no influence in that scenario.


Filibuster Follies


In his Wall Street Journal column yesterday urging Senate Republicans not “to settle scores,” Gerald F. Seib, who surely ought to know better, wrongly asserts that the “best gauge of filibusters’ frequency is the tally of so-called cloture motions.” This Huffington Post article, also from yesterday, implicitly relies on the same misunderstanding when it claims that “Half the nominees filibustered in the country’s history, for example, were blocked by Republicans during the Obama administration.”

Borrowing from a post of mine from a year ago, let me set things straight:

1. As the Congressional Research Service emphasizes in a heading in this report on cloture motions on nominations, “Cloture Motions Do Not Correspond With Filibusters” (underlining added):

Although cloture affords the Senate a means for overcoming a filibuster, it is erroneous to assume that cases in which cloture is sought are always the same as those in which a filibuster occurs. Filibusters may occur without cloture being sought, and cloture may be sought when no filibuster is taking place. The reason is that cloture is sought by supporters of a matter, whereas filibusters are conducted by its opponents.…

For [various] reasons [that the CRS report spells out], it would be a misuse of the following data, which identify nominations on which cloture was sought, to treat them as identifying nominations subjected to filibuster. [Pp. 2-3 (emphasis added).]

2. As the Washington Post’s Glenn Kessler observed in a column disputing similar extravagant claims, Senate majority leader Harry Reid “often files cloture on multiple bills or nominations at once to speed things along even if no one is slowing things down.” (Emphasis added.) Thus, claims about the high number of cloture motions filed on nominations during the Obama presidency would seem to say far more about Reid’s trigger-happy cloture finger than anything else. That impression would seem to be bolstered by a review of Table 6 of the CRS report, which shows that the vast majority of the cloture motions that Reid has filed during the Obama administration either have been withdrawn or have won strong Republican support.

In other words, the vast majority of the nominees that the Huffington Post claims “were blocked by Republicans” weren’t blocked at all.

And, of course, it was very much in Reid’s partisan interest to manufacture a high number of cloture motions when he has had so many dupes, willing or otherwise, ready to equate every such motion with a filibuster.

3. Instead of looking at filed cloture motions, let’s look at defeated cloture motions. On this count, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions in a period of two years. By contrast, over the nearly five years of the Obama administration that preceded Senate Democrats’ abolition of the filibuster, six Obama judicial nominees suffered a total of seven defeated cloture motions. Plus, one of those six nominees, Robert Bacharach (Tenth Circuit), was defeated on cloture at the very end of July 2012 not as part of a filibuster against him but in an application of the Thurmond Rule on election-year action. (Bacharach was unanimously confirmed in February 2013.) So this data shows that ten Bush 43 judicial nominees were filibustered, versus five Obama nominees.

Lindsey Graham’s Myopia


According to this Huffington Post article, Republican senator (and Judiciary Committee member) Lindsey Graham wants Senate Republicans to reinstate the judicial filibuster. I’ve already explained in this essay why I think that filibuster-reinstatement, which wouldnt be durable, is a terrible idea. I’ll respond here to Graham’s specific arguments:

1. Graham: “If you get a Republican president, then we’ll see what Democrats do on their watch. But the next two years, I think, it is in our self-interest to make it harder to get people into the judiciary and executive branch, not easier.”

Graham is focusing myopically only on the next two years and is utterly ignoring the severely damaging effect that filibuster-reinstatement would have on the next Republican president. There is simply no way that Senate Republicans would reinstate the filibuster now and then abolish it if a Republican president is elected in 2016, and none of the arguments made by reinstatement proponents would countenance that opportunism.

There’s no mystery about “what Democrats [will] do on their watch.” If Democrats regain control of the Senate in 2016 and win the presidency, Democrats will promptly abolish the filibuster again. But if Democrats regain control of the Senate and a Republican wins the presidency, Democrats would simply leave the filibuster in place until there is a Democratic president.

So Graham is supporting a crazy regime in which liberal nominees would need only a simple majority to get confirmed in a Democrat-controlled Senate but in which conservative nominees would need 60 votes to get confirmed in a Republican-controlled Senate.

(My point 2 applies to Graham’s claim of “self-interest” over “the next two years.”)

2. Graham: “If you keep it at 51, all they [Democrats] have to do is pick up three, four Republicans and I’m worried that you’re no stronger than your weakest link. Having to get to 60 is a much more collaborative process.” “[I]t gives you a chance to have a say about what kind of judges we’re going to put on the bench the next two years, who will run the executive branch.”

Republican control of the Senate assures Republicans plenty of “say” over nominees. (Compare, for example, the remarkable influence that Democrats had during the last two years of the George W. Bush presidency, when they had a bare 51-49 majority.) As I spell out in my essay, Republicans would have multiple backstops against unacceptable nominees, so the likely value of reinstating the filibuster is trivial over the next two years. But even if you disagree with that assessment, any value it has is swamped by the downside if a Republican president is elected in 2016. And while the election of a Republican president in 2016 is of course far from certain, all planning should be prepared to take full advantage of that opportunity.

Further, far from promoting “a much more collaborative process,” the filibuster would incite in-fighting among Republicans and tend to make all the “links” weaker. Without the filibuster, Republicans would recognize that they need to unify to defeat bad nominees. The availability of the filibuster instead triggers an ugly dynamic in which some Republican senators pose as hardliners and attack their colleagues. Internal divisions, magnified by press coverage, would make the filibuster very difficult to sustain and very damaging to party unity. As a result, it may be even more difficult to get the 41st vote for a filibuster than to get the 51st vote against a nomination on the merits in a no-filibuster regime.

3. Graham: “I think we should go back to 60 votes to approve any nomination. I think it stood the test of time.” “I think it’s in our self-interest to go back to the way the Senate used to work and have a 60-vote hurdle.”

The “test of time”?!? “Back to the way the Senate used to work”??

Contra Graham, the longstanding tradition of the Senate, which prevailed throughout American history until Democrats flouted it beginning in 2003, is that the partisan filibuster of judicial nominees is an unacceptable tool of obstruction. Leaving the abolition of the filibuster for lower-court judges in place is consistent with the “test of time” and “the way the Senate used to work.” Reimposing the filibuster isn’t.

Hijinks in the Ninth Circuit Clerk’s Office?


A follow-up to my two posts last month highlighting concerns about notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important cases with a strong ideological valence:

Buried in this New York Times article is some very surprising news. For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.”

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, from what I can tell from my own inquiries, this practice was not even commonly known among the Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments.

Ninth Circuit chief judge Alex Kozinski, who disclosed the practice to the New York Times, expressed his “full confidence” in the “professionalism and objectivity” of the Ninth Circuit’s staff. But I have to wonder when he first learned of the practice—and whether he insisted that it be changed as soon as he learned of it.

One other peculiarity: According to a letter from the party—the Coalition for the Protection of Marriage—challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that it may have abused that discretion.

Relatedly, I’ll note this recent blog post by Slate’s Mark Joseph Stern that contends that the Coalition for the Protection of Marriage is arguing that the “judges were crooked” and that “several judges on the circuit are unscrupulous and corrupt.” But there is nothing about the Coalition’s argument that necessarily implicates any judges in any possible wrongdoing, and it would indeed be astounding if any judge were complicit.* The alleged “appearance of departure from a neutral process” comes instead from the assignment of cases by the clerk’s office. There would be no reason for a wayward actor in the clerk’s office to inform any judges of his mischief—and plenty of reason not to.

Along with a generous comment about me, Stern laments that I have “join[ed] the chorus of conspiracy theorists.” But, as my post made clear, concerns about Reinhardt’s assignments “have circulated for years” and long predate the recent marriage case. The recent disclosure about the previously unknown practice of assigning “cases on a fast track” and the apparent incompleteness of that disclosure aggravate, rather than alleviate, my concerns that something has long been rotten in the Ninth Circuit clerk’s office.

If anyone considers it unthinkable that government bureaucrats might abuse their discretion to pursue an ideological agenda, please meet Lois Lerner.


* But as the NYT article acknowledges (and as I discussed in this post):

The possibility that courts might sometimes bend the rules in assigning cases is not completely implausible. In the civil rights era, the Fifth Circuit steered cases involving racial equality to more liberal panels.

This Day in Liberal Judicial Activism—November 18


2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution. The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

Poor Linda Greenhouse


Linda Greenhouse finds it “profoundly depressing” that “conservative justices” have purportedly engaged in a “naked power grab” by granting review (in King v. Burwell) of the Fourth Circuit’s decision on Obamacare’s exchange subsidies. But as the Volokh Conspiracy’s Orin Kerr explains, there was “good reason to grant” in the case, and Greenhouse’s “stated rationale [is] puzzling because there are instances of the Court granting cert absent a split or an emergency when Greenhouse apparently hasn’t found the grant at all objectionable”:

Consider the cert petition in Lawrence v. Texas, which did not allege a split or claim an emergency. The Court granted cert even though the petition did not meet the usual criteria for cert. When Greenhouse has written about Lawrence, she hasn’t lamented the cert grant as a “power grab” (naked or otherwise) that ruined her faith in the Supreme Court. Instead she has celebrated what a wonderful moment it was when the Court handed down its opinion.

Yes, believe it or not, Greenhouse’s take on Supreme Court actions might be colored by her own policy preferences.

As for Greenhouse’s simplistic assertion that it is “obvious” that Chevron deference ought to apply to the IRS’s interpretation of the supposedly “ambiguous” statutory provision, see Jonathan Adler’s recent demolition of that position (also on the Volokh Conspiracy).

Yet Another Summary Reversal of Ninth Circuit in AEDPA Case


Here’s today’s Supreme Court ruling, overturning the Ninth Circuit’s ruling in Frost v. Van Boening.

I had a post with this exact title just last month, and it too involved a per curiam ruling from the Supreme Court that unanimously reversed an opinion authored by Ninth Circuit judge Sidney Thomas. As I’ve noted, Thomas, a Wyoming Montana native, was trotted out in 2010 as a supposed moderate candidate for the Stevens vacancy that Elena Kagan ended up filling, but he’s really just Stephen Reinhardt dressed up in a cowboy hat

One difference between this month’s ruling and last month’s: In this case, the Ninth Circuit ruling below was issued by a limited en banc panel (by a vote of 6-5, with Chief Judge Alex Kozinski somehow providing the decisive vote).

Sauce for the Gander


The National Law Journal recently invited me to offer my quick take on what the Republican takeover of the Senate will mean for judicial nominations. Here’s my short essay (which NLJ paired with a competing perspective—available at that same link—from Nan Aron of the Alliance for Justice):

Now that Republicans have won control of the Senate for President Barack Obama’s remaining two years in office, what does that mean for Obama’s judicial nominations? Let’s look for guidance to recent Senate history — history with which Obama and Senate Democrats should be familiar.

Eight years ago, in the November 2006 elections, Democrats seized control of the Senate by a narrow 51-49 margin. They used their newfound leverage to dramatically increase their influence over President George W. Bush’s judicial nominations at every phase.

Senate Democrats insisted on extensive consultation before nominations were made and refused to give hearings to nominees whom they opposed. They also extracted generous deals from Bush.

For example, as part of a package deal to get one Sixth Circuit nominee confirmed, they forced the White House to withdraw a second nominee and to replace him with failed Clinton nominee Helene White (who also just happened to be Democratic Sen. Carl Levin’s former cousin-in-law). To induce the White House to abandon a contested Fifth Circuit nominee, they promised the speedy confirmation of a consensus replacement, Leslie Southwick, but — spurred by then-Sen. Obama — reneged on their deal and subjected Southwick to a harrowing and vicious filibuster battle. In lots of instances, the White House caved to Democratic senators by selecting district-court nominees with strong partisan ties to those senators.

The Senate in 2007 and 2008 confirmed only 10 appellate nominees — compared to 16 in 2005 and 2006. But, given the White House’s capitulation to Democratic senators on district court nominees, it confirmed 58 district judges — 23 more than were confirmed in the preceding two years.

What’s sauce for the goose is sauce for the gander. Republicans are now in a position to demand the same consultation that Democrats required from the Bush White House eight years ago. They should insist on the same level of extraordinary influence over judicial selection. They can and should block all nominees whom they find objectionable. How many judicial nominees get confirmed depends on how cooperative the White House is.

Aided by Senate Democrats’ abolition of the judicial filibuster a year ago, Obama has had a remarkable number — 105 — of appellate and district nominees confirmed in this Congress. In any lame-duck session before year-end, Republicans should prevent the wholesale confirmation of existing nominations. (In the 2006 lame-duck session, a single nominee was confirmed.) [After this essay was finalized, I learned (as the update to this post indicates) that my assumption in the preceding parenthetical that Democratic obstruction accounted for the low total during the 2006 lame duck may be wrong.]

No Supreme Court vacancies arose in 2007 and 2008, but Senate Democrats made clear they would pull out all stops to block a conservative nominee. Senate Republicans should be ready to return the favor in the event a vacancy arises in 2015 or 2016.

Harvard Event on Judicial Activism


This Thursday at noon, I’ll be at my alma mater, Harvard Law School, to discuss the concept of judicial activism. I’ll be defending the much-maligned term (while opposing the practice). Harvard law professor Michael Klarman has kindly agreed to offer commentary on my remarks. The event is sponsored by the law school’s Federalist Society chapter and includes a free lunch. More info here.

This Day in Liberal Judicial Activism—November 16


1993—In Steffan v. Perry, a trifecta of Carter appointees on the D.C. Circuit—Abner J. Mikva, Patricia M. Wald, and Harry T. Edwards—rules that Department of Defense Directives excluding homosexuals from military service cannot constitutionally be applied to someone who has identified himself as a homosexual but who has not been shown to have engaged in homosexual conduct. Purporting to apply rational-basis review, the opinion authored by chief judge Mikva determines that it is irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reverses Mikva’s ruling (with Wald, Edwards, and Clinton appointee Judith Rogers dissenting).

2009—In a unanimous per curiam opinion in Wong v. Belmontes, the Supreme Court summarily reverses the ruling by a divided Ninth Circuit panel that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. The Ninth Circuit opinion was written by arch-activist Judge Stephen Reinhardt and was joined by Judge Richard Paez. In dissent was Judge Diarmuid O’Scannlain. That’s the third time in this same case that the Supreme Court has reversed or vacated a ruling by Reinhardt (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court).

Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”: 

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

This Day in Liberal Judicial Activism—November 15


2012—By Any Means Necessary, indeed. That phrase—a shorthand for the very long name of the group challenging Michigan’s Proposal 2—aptly describes the modus operandi of the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality By Any Means Necessary v. Regents of the University of Michigan.

Proposal 2 is the state constitutional amendment that Michigan voters adopted in 2006 to bar state universities from “discriminat[ing] against, or grant[ing] preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin.” By an 8 to 7 vote, the Sixth Circuit rules that Proposal 2’s guarantee of equal treatment violates the Equal Protection Clause of the federal Constitution. In what Judge Danny J. Boggs, in dissent, calls an “extreme extension” of two Supreme Court rulings, the majority holds that the embedding of the nondiscrimination rule in the state constitution somehow violates the “political-process doctrine.”

In April 2014, in Schuette v. Coalition to Defend Affirmative Action, the Supreme Court will reverse the Sixth Circuit by a 6-2 vote.

This Day in Liberal Judicial Activism—November 14


2003—Demonstrating their particular animus against female nominees whom they regard as judicial conservatives, Senate Democrats filibuster President George W. Bush’s nominations of Judge Priscilla Owen to the Fifth Circuit, Judge Carolyn B. Kuhl to the Ninth Circuit, and Judge Janice Rogers Brown to the D.C. Circuit. Cloture motions on each of the nominations (in Owen’s case, the fourth such motion) fail, as only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of cloture.

In May 2005—more than four years after her initial nomination—Owen is finally confirmed.  Brown is confirmed in June 2005, nearly two years after she was first nominated. Kuhl, first nominated in June 2001, withdraws her candidacy in December 2004.

Important Second Amendment Procedural Victory in the Ninth Circuit


There is a development in February’s Ninth Circuit appellate ruling in Peruta, which held that San Diego County could refuse to establish a “shall issue” open carry policy or a “shall issue” conceal carry policy, but not both.

The State of California, among others, wished to intervene in Peruta and petition for an en banc hearing so the entire Ninth Circuit could hear the case, hoping for a reversal.

The judges disagreed, noting first that the State and other petitioners did not intervene when the case was in the lower court, or even in front of the panel itself, but rather waited until they discovered that the San Diego County Sheriff was not going to challenge the ruling. The judges noted:

Both California and the Brady Campaign argue that their delay in moving to intervene was reasonable. They filed their motions shortly after learning that Sheriff Gore would not file a petition for rehearing en banc, which they contend was the moment they knew that Sheriff Gore would not adequately protect their interests.

If the movants originally thought that Sheriff Gore adequately protected their interests, they must have “know[n] that [their] interests might be adversely affected by the outcome of the litigation.” The movants do not deny that they have long been aware of this case. Although the movants may have avoided some inconvenience to themselves by waiting to seek intervention, such considerations do not justify delay.

It seems clear what happened here: California and other amici assumed whichever Ninth Circuit judges heard any potential appeal would consist of jurists who are unpersuaded by Second Amendment arguments. In fairness to them, this was a reasonable assumption.

The judges also disagreed on an important second factor, addressing the assertion that this case is of such significance that the State of California must be allowed to intervene. The panel notes that their ruling in Peruta is cabined to the issue of a county’s good cause requirement to obtain permission to carry a handgun. Such a narrow ruling cannot be construed as drawing into question the constitutionality of any California statute.

So, for now, Peruta stands and it looks like citizens in the Ninth Circuit are closer than ever to having, at a minimum, a shall-issue handgun mechanism available to them. I will continue to keep Bench Memos readers updated on this case as it develops further. In the meantime, you can read the ruling here.  

E.J. Dionne’s Feeble “Gotcha” Attempt


In his Washington Post column today, E.J. Dionne argues that in King v. Burwell, Justice Scalia, relying on his own stated interpretive methods and respecting his own past statements about the Affordable Care Act itself, should vote to uphold the Obama administration’s decision to treat federally-created insurance exchanges in many of the states as equivalent to state-established exchanges, for purposes of tax subsidies and the employer and individual mandates.

On the question of Scalia’s textualism and originalism when it comes to reading statutes, and the application of his methods to King, Dionne relies without further elaboration on Professor Abbe Gluck’s recent post at SCOTUSblog.  So I’ll rely without further elaboration on Professor Jonathan Adler’s extended reply to Gluck at the Volokh Conspiracy, and focus instead on Dionne’s other point—that Scalia has joined in past statements about the ACA that should bind him to the government’s position in King.

Dionne writes:

In their dissent from the 2012 decision upholding the law, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito read the law exactly as its supporters do. They wrote: “Congress provided a backup scheme; if a State declines to participate in the operation of an exchange, the Federal Government will step in and operate an exchange in that State.” And they noted of the law’s structure: “That system of incentives collapses if the federal subsidies are invalidated.”

These quotations don’t really provide the help to Dionne’s argument that he thinks.  The first quotation appears on p. 44 of the 65-page joint dissent of Scalia, Kennedy, Thomas, and Alito, and it expresses a commonplace observation about the law that every commentator on both sides of the Halbig and King cases would agree with.  The statute authorizes and invites the states to establish health insurance exchanges, and provides for the federal government to create exchanges where states decline to do so.  No one denies this.  The only question is whether the tax subsidies available in the state-established exchanges, as well as the penalties of the individual mandate for the many individuals who would qualify for the subsidies, can be extended to the participants in the exchanges created by the federal government.  It’s hard to see what point Dionne is making by quoting this sentence from the NFIB dissent that Scalia co-authored.

It must then be the second sentence he quotes that rounds out the argument: “That system of incentives collapses if the federal subsidies are invalidated.”  But that sentence occurs fifteen pages after the first one Dionne quotes—it’s on page 60 of the dissent—and its context is important.  The four dissenters lost on the individual mandate (upheld), won on the Medicaid expansion’s imposition on the states (struck down) but not on the validity of the expansion as such, and finally lost on the question whether the invalidation of either of those parts could be considered severable from the fate of the act as a whole. (This section V of the dissent begins on p. 48.)  They argued that the structure of the law was such that striking down the individual mandate (as they would have done) and the Medicaid expansion (which was partly preserved by what they called “rewriting” the law) so harmed the attainment of Congress’s evident purposes that they would hold these major provisions not to be “severable” from the rest of the statute.  It followed that they would strike down the entire ACA.  Better that it should all go down than that the justices patch up the monster so it can shamble on, or so they argued.

But note that this view of the statute’s interlocking major parts, and of the way they function together, was entirely based on the NFIB dissenters’ reading of the statute’s text, parts of which they regarded as unconstitutional.  They were unwilling to foist on Congress, and the Obama administration, a text the Congress did not write, but which was judicially rewritten here, and had a hole poked in it there, with the Court saying “there, now go make that work.”  The issue is quite different in King, a case that raises no issues of the ACA’s constitutionality, but instead considers the logical coherence of the statute Congress did write, and the power of the executive branch to rewrite it in a way that saves it from itself. 

In other words, in NFIB, Scalia et al. were unwilling to countenance judicial rewriting of a statute to save it from an adverse constitutional judgment against the law as a whole, especially if that meant its overall aims as a policy were ill-served.  But in King, the Obama administration is asking the justices to countenance executive rewriting of the statute to save its overall aims from being ill-served by adherence to its actual text.  These are two very different situations, and there is no reason for Scalia and his colleagues not to stand fast against any kind of rewriting of the statute, whoever is attempting it.  Any collapse of Obamacare into incoherence by an adverse judgment in King would be the fault of the Congress, not of the justices.  And “odd” policy outcomes do not constitute the kind of “absurdity” that trumps a straightforward reading of the text, as Judge Griffith pointed out in Halbig.  (The view that “established by the state” meant what it said, of course, is arguably bolstered by a reading of the act’s purposes, if we recall that tax subsidies to participants in each state were supposed to attract state legislatures to create their respective exchanges.  The fact that so many did not do so suggests that the Democrats, in their unwillingness to consider any views other than their own as they leveraged passage of the bill, were bad calculators of the incentives they were offering state policymakers, insurance consumers, and taxpayers—not that they didn’t mean to do what they did.)

A final note on trying to hold the NFIB dissenters to a peculiar reading of their statements in that case: as Jonathan Adler points out, the four co-authors said at least one plainly untrue thing, that “[t]he ACA requires each State to establish a health-insurance ‘exchange’” (that’s on p. 59 of the dissent). He might have added that this “indisputably false” statement is actually contradicted by the first line Dionne quotes above (from p. 44) which contemplates with equanimity the possibility of a state that “declines to participate” in the scheme Congress set up.

If E.J. Dionne thinks Justice Scalia and his colleagues should be held to past statements made in their NFIB dissent about the meaning of the ACA, should that include the statements they made that are patently wrong and that they contradicted elsewhere in the same dissent?  Or just the statements that Dionne likes when they’re taken out of context?

And a postscript is in order.  Dionne ends his column with this paragraph:

Here’s a hypothetical for you: First, the Supreme Court issues a ruling that installs a conservative president. Then, he appoints two conservative Supreme Court justices who then join with three of their colleagues to make mincemeat of the greatest achievement of a progressive president elected by a clear majority. If such a thing happened in any other country, would we still call it a democratic republic?

A charitable reading of this paragraph is that Dionne sent in a shorter than usual column, and his editor shot him an e-mail that he could use 60 or 70 more words just to make the page’s layout work better.  In need of something more to say, Dionne coughed up some ancient bile about Bush v. Gore, as though there were some dark design afoot that really (stay with me here, folks, don’t think about it too much) connects that decision with this one.  This is stuff out of a Dan Brown novel.  You want absurdity?  E.J. Dionne can give you absurdity!

Epic Court-Packing Fail: D.C. Circuit Calls Off Halbig Arguments


On routine motion of the plaintiffs, the D.C. Circuit yesterday canceled next month’s arguments in Halbig v. Burwell and ordered the case to be held in abeyance pending the Supreme Court’s decision in King v. Burwell, which was granted certiorari last week. Since those two cases concern the same central issue, namely, whether tax subsidies for Obamacare can go through exchanges not “established by the State,” the D.C. Circuit is now in a holding pattern until the Supreme Court issues its ruling on the issue, which will control the outcome of both cases. As a result, the administration’s strategy to run out the clock on timely judicial review of Obamacare has failed.

This Day in Liberal Judicial Activism—November 13


1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination.


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