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DOMA Ruling Did Not “Vindicate” Eric Holder


I’m not going to delve into Eric Holder’s sorry legacy as Attorney General here, but I cannot pass over the flatly wrong assertion in this Washington Post house editorial (and made elsewhere, including by Holder) that the Supreme Court’s ruling in United States v. Windsor somehow “vindicated” Holder’s decision to have the Department of Justice abandon its defense of the Defense of Marriage Act.

Let’s review the basics:

1. When Eric Holder announced the Obama administration’s decision not to defend DOMA, he claimed that that decision was consistent with DOJ’s “longstanding practice of defending the constitutionality of duly-enacted statutes if reasonable arguments can be made in their defense.” Holder, in other words, was maintaining that no reasonable defense of DOMA could be offered. He was not purporting to base his refusal to defend DOMA on a judgment or prediction that a Supreme Court majority would strike down DOMA.

2. Holder’s claim that no reasonable arguments could be offered in defense of DOMA was clearly wrong at the time he made it, for the reasons that I spelled out in Part III of my House of Representatives testimony. For present purposes, the relevant point is that nothing the Court did in Windsor remotely suggests that it agreed that no reasonable arguments could be made in defense of DOMA.

The four dissenters, of course, emphatically rejected Holder’s position, as they concluded that the arguments on behalf of DOMA were not merely reasonably but sound. Although the majority ruled against DOMA, nothing in the majority opinion implies that no reasonable arguments could be made on behalf of DOMA.  

Indeed, perhaps the only point on which the majority and the dissent appeared to agree is that Holder acted irresponsibly in failing to defend DOMA. In his majority opinion (slip op. at 12), Justice Kennedy laments that the “Executive’s failure to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions has created a procedural dilemma” and “poses grave challenges to the separation of powers.” In his dissent, Justice Scalia states (slip op. at 6 n. 2), “There is no justification for the Justice Department’s abandoning the law in the present case.”

In short, there is no evidence that a single justice agreed with Holder that no reasonable arguments could be offered in defense of DOMA. That’s some vindication.

3. What might actual vindication have looked like? If the Court had sanctioned or scolded the defenders of DOMA for presenting frivolous arguments, or if it had summarily affirmed the Second Circuit’s anti-DOMA ruling without bothering with full briefing and oral argument, then Holder might reasonably claim vindication.

4. In a sound legal culture, Holder’s refusal to defend DOMA would be recognized as a shameful moment in politicized government lawyering and as a dangerous precedent that deserves condemnation. If and when a Republican attorney general chooses to follow Holder’s example, the Washington Post and other  Holder cheerleaders may come to rue what they have sown. 

This Day in Liberal Judicial Activism—September 29


1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”


This Day in Liberal Judicial Activism—September 28


1962— President Kennedy’s appointment of Arthur Goldberg to replace the retiring Felix Frankfurter creates a clear liberal activist majority on the Supreme Court. As Seth Stern and Stephen Wermiel write in Justice Brennan:

Goldberg’s arrival meant that Brennan did not need to accommodate [Byron] White’s concerns [of judicial restraint]: the bloc had its fifth vote without him. After the very first Friday of the term, Brennan came back to his chambers with a look of triumph on his face—a look he would keep all term.

Posner Spins?


By an equally divided vote, the Seventh Circuit has denied a request for hearing en banc of a recent panel decision that allowed Wisconsin’s voter-ID law to take effect.

Judge Richard Posner was among those voting to rehear en banc. According to the court order, “In the coming days, members of the court may file opinions explaining their votes.” So perhaps we’ll learn whether Posner has reversed his reversal of his reversal of his reversal of his reversal on voter-ID laws.

This Day in Liberal Judicial Activism—September 26


2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of apparent flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship. (See here for documentation.)

2013—A Second Circuit panel (consisting of one Clinton appointee, one Bush 43 appointee, and one Obama appointee) unanimously reverses senior federal district judge Jack B. Weinstein, who had ruled—in a 349-page opinion (with an additional 50+ pages of appendices)—that the Eighth Amendment bars applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Unhappy over the reversal, Weinstein within hours issues an extraordinary memorandum arguing that the case “exemplifies the sometimes unnecessary cruelty of our federal criminal law.”

Weinstein, alas, badly obscures the essential facts of the case. He contends in the brief “Facts” section of his memorandum that the defendant “never produced, sold or deliberately exchanged [child] pornography.” (Emphasis added.) But according to the Second Circuit, the defendant admitted that

he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download “a ton” of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. [Emphasis added.]

The Second Circuit’s opinion also includes lots of other very ugly facts (too ugly to repeat here) that would lead very few people to conclude, as Weinstein did, that the defendant’s sentence was unjust.


Re: Ohio’s Emergency Appeal of Injunction Against Uniform Early-Voting Rules


A follow-up to this post from last week: The same very liberal panel of Sixth Circuit judges (Keith, Moore, and Clay) who refused to stay the district court’s injunction against Ohio’s uniform early-voting rules has now written a lengthy opinion affirming the injunction. I’ll again happily quote liberal election-law expert Rick Hasen:

1. Like the district court, this (very liberal) panel of 6th Circuit judges reads both the Equal Protection Clause of the U.S. Constitution as well as Section 2 of the Voting Rights Act very broadly to hold it illegal for Ohio to move from 35 to 28 days of early voting, to eliminate a Sunday of voting used by African-American churches for “Souls to the Polls” drives, and to eliminate “Golden Week,” in which a new (or moving) voter can both register to vote and vote early at the same time.  The court barely mentioned the fact that every voter in Ohio has received a no-excuse absentee ballot application as well.

2. Both the Equal Protection and Voting Rights Act readings are expansive.… [T]he part that is controversial is the court’s holding that the burden imposed on voters in the mild cutbacks in early voting is significant…. The main problem with the equal protection theory and the VRA section 2 theory is the same: Ohio’s law is not all that burdensome, and in fact it provides many opportunities for voting (such as a still very long early voting period of 28 days and no excuse absentee balloting for a long period) which are not available in other states. If 28 days is unconstitutional and a voting rights violation, what does this say about places like New York, which offer no early voting?  Although the judge says he is not applying a “non-retrogression” standard such as that which used to exist under section 5 of the VRA, that appears to be what he is doing to at least some extent. The judge says the cutbacks are relevant in a totality of the circumstances approach to section 2 VRA applicability.…

(Hasen makes additional points, which I invite you to read.)

We’ll soon see if Ohio seeks relief in the Supreme Court, where Hasen “expect[s] 5 Justices could well adopt a much narrower definition of equal protection and the Voting Rights Act” than that of the Sixth Circuit panel.

Eleventh Circuit Gives Barbarous Cops a Haircut


And George Leef approves, here.

Ginsburg the Indispensable


From an Elle interview:

[Elle reporter:] I’m not sure how to ask this, but a lot of people who admire and respect you wonder if you’ll resign while President Obama is in office.

[Justice Ginsburg:] Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Republicans [sic]] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided. As long as I can do the job full steam…. I think I’ll recognize when the time comes that I can’t any longer. But now I can.

I won’t argue with Justice Ginsburg on this one.

Note to the crack political team at Elle: It was Senate Democrats, not Republicans, who abolished the filibuster for lower-court (and executive) nominees. [Update: The error has been corrected.]

In more Ginsburg news, the Washington Post political-gossip column reports that opera star Denyce Graves sang “He’s Got the Whole World in His Hands” at a Supreme Court event yesterday that featured Ginsburg. I’m sorry to have missed the sight of Ginsburg clapping along with this hymn. I do wonder whether she joined in singing the second stanza, “He’s got the itty bitty baby in His hands.” 

Addendum: A reader calls to my attention this passage from a Washington Post article on Denyce Graves:

She was dumped by a boyfriend who no longer wished to follow her around the world. She found herself heartbroken and sick and finally went to a doctor who said he had news — at 39, she was with child. Impossible, she replied: Throughout her previous 17-year marriage she tried repeatedly to get pregnant, but was told it could never happen because of fibroids and various other conditions. Besides, her then-lover had told her he’d had a vasectomy, she says.

But she was pregnant. The doctors urged her to abort, she says, because she wouldn’t be able to carry to term. Then, Graves says, she was told the child had Down syndrome.

But in 2004 she delivered a healthy baby girl — “and she’s perfect.”

So one of the most celebrated mezzo-sopranos of her day became a single mother to a daughter named Ella Thomas, ferrying the infant to concert halls around the world.

I wonder if Ginsburg has shared with Graves her ugly thoughts on those “populations that we don’t want to have too many of.”

This Day in Liberal Judicial Activism—September 24


1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit. 

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population. 

Garbage In, Garbage Out


In May, the New York Times highlighted a study—or, rather, a summary of a study—by political scientists Lee Epstein, Christopher M. Parker, and Jeffrey A. Segal that purported to show that in First Amendment speech cases “the votes of both liberal and conservative justices tend to reflect their preferences toward the ideological groupings of the speaker.” Further, the study summary contended that for many justices—especially Scalia and Thomas but also Roberts, Kennedy, O’Connor, and Stevens—there was “a statistically significant difference … between support for the free expression claim when the speaker is liberal versus conservative.”

In my post about the article, I identified two obvious flaws in the study. First, Epstein, Parker, and Segal seem blind to the possibility that there may be factors other than speaker-favoritism or speaker-hostility in a large category of the cases (e.g., the institutional interests of the government), and those factors may have a very large disparate impact one way or the other in those cases. Second, they have no basis for assessing when a vote difference is statistically significant. (I note that their full study makes no assertions of statistical significance; it seems that they may have tarted up the summary that they specially prepared for the New York Times.)

Well, it turns out that the Epstein-Parker-Segal report is far shoddier than I imagined and that it suffers from what law professor Todd E. Pettys summarizes in his devastating critique as a “surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations.” Among the lowlights (from Pettys’s review of Epstein-Parker-Segal’s “treatment of roughly a quarter of the more than 500 cases in their study”):

In a number of cases, Epstein, Parker, and Segal made simple errors in coding justices’ votes. (Pettys, pp. 15-17.)

In numerous cases, the authors incorrectly classified speakers’ ideological identities. In several cases, for example, they seem not to have looked beyond the speaker named in the case caption to discover that the First Amendment claimants included multiple speakers of various ideologies. (Pettys, pp. 18-20.) In many others, they seem to have made superficial assumptions (e.g., a case with college students must involve liberal speech) that more careful scrutiny of the particular speakers undermines. (Pettys, pp. 20-23.)

In plenty of other cases (Pettys, pp. 24-33), the authors’ classification of speakers’ ideologies is questionable. As Pettys points out, this is no minor flaw:

If one cannot be reasonably sure whether a justice perceived a given speaker as a member of an ideological in-group or out-group, one cannot confidently use the justice’s treatment of that speaker to measure the justice’s tendency toward ideological in-group bias.

Two amazing examples: David Dawson (of Dawson v. Delaware) was a convicted murderer on death row who belonged to a white racist prison gang and who called himself a disciple of Satan. Epstein, Parker, and Segal classify him as a conservative speaker because they code racist communication and racist behavior as conservative. For the same bizarre reason, they code as conservative an African-American man “whose sentence … had been enhanced because he selected his victim (a young white boy) on the basis of his race.” (Pettys, p. 25.) As Pettys asks, are we really to believe that any conservative justice would see either speaker as part of his own ideological in-group?

The authors’ errors are so pervasive—and splatter in so many different directions—that it’s anyone’s guess whether they have any impact on the authors’ (already dubious) bottom-line assessments. Looking at the manageable universe of votes of Roberts and Alito, Pettys concludes that it is the campaign-finance cases—in which they have both “treated ideologically diverse litigants even-handedly”—that account for most or all of the seeming disparity in their voting records. (Pettys, pp. 43-44.)  (He also points out that sexual-speech cases, in which Scalia’s originalism amply explains his votes, may account for much of the supposed disparity—again, unmeasurable against any objective benchmark—in Scalia’s votes. Pettys, p. 49 n. 349.)

Pettys sums things up very nicely:

In light of the difficulties in Professors Epstein, Parker, and Segal’s study, we find  ourselves confronting an ironic twist: working in tandem with the temptations of  motivated reasoning, the very same sort of biases that the authors aimed to measure on the Court may have helped predispose many writers and readers to be too quick to  embrace the study’s uniformly damning critique of the Court’s currently sitting conservatives.

Judicial Philosophy in Action


Bench Memos readers may be interested in a white paper recently released by the Federalist Society about recent opinions by the North Carolina Supreme Court. The paper covers a broad range of cases and notes several interesting aspects of the judicial philosophies at work on the court. Anyone who wants to see how judicial philosophy can affect practical lawyering should take a look. The paper is especially timely, since the upcoming elections will determine the philosophical outlook of that court.

Chris Christie 2016 Front-Runner?


Washington Post political reporter Bob Costa says, “Influential Republicans in early presidential primary states believe New Jersey Gov. Chris Christie is poised to once again become a frontrunner for the party’s 2016 nomination.”

I doubt it.  

My organization, the Judicial Crisis Network, just commissioned a survey of likely 2016 Republican primary voters in South Carolina to see what they think about Christie and other potential candidates. 

The initial ballot test showed:

Mike Huckabee 14 percent

Ben Carson 14 percent

Rick Perry 9 percent

Jeb Bush 9 percent

Chris Christie 8 percent

Rand Paul 7 percent

Paul Ryan 6 percent

Ted Cruz 5 percent

Marco Rubio 5 percent

Scott Walker 3 percent

With respect to Christie’s image, the survey found that 46 percent of respondents had a favorable impression and 24 percent had an unfavorable impression.  

But that image changed dramatically when those surveyed were told about Christie’s record of nominating liberal judicial activists to the New Jersey Supreme Court. (See the video embedded below, if you’ve forgotten just how bad Christie has been when it comes to judicial selection.)  

After learning about that record, 49 percent had an unfavorable impression of Christie versus 30 percent favorable.  

Sixty-six percent of respondents were more likely to vote against Christie when informed that he broke his promise to fix his state’s liberal supreme court by appointing justices who follow the rule of law, choosing instead to nominate several liberal judicial activists.

I haven’t followed Bridgegate closely enough to know whether it will be a problem for Christie. But I can say with a high degree of certainty that conservatives have a lot to be worried about when it comes to Christie’s record on judicial nominations, and our research so far indicates that the issue is powerful enough to prevent him from being a front-runner for very long.

My Reply to Richard Epstein’s Final Response


Let me reply briefly to Richard Epstein’s final response in our debate over his Hobby Lobby essay. (See my initial critique, his first response, and my first reply.)

First, Epstein maintains that his “normative position”—that in competitive markets the government does not have any compelling interest in barring discrimination—“dovetails” with the meaning of compelling interest in RFRA. I don’t see how ordinary statutory interpretation (including consideration of RFRA’s reference to Sherbert v. Verner and Wisconsin v. Yoder) would yield this very surprising result.

Second, Epstein continues to argue that Justice Alito supposedly made a “tactical mistake” in not deciding the case on the basis of Epstein’s understanding of lack of compelling interest. But Epstein’s argument doesn’t work. For starters, he can’t have it both ways: If he is going to descend from the higher level of the judicial ideal to the lower level of the “practical politics of the bench,” then he also needs to confront the reality (which he seems to concede in his earlier post) that Alito couldn’t have garnered a majority for the Epstein position. He can’t fault Alito for one alleged tactical mistake yet ignore the consequences if Alito had adopted the tactic of pursuing Epstein’s favored holding.

Epstein does—for the first time, I think—consider the possibility that his reading of Alito’s use of the accommodation for religious nonprofits might be wrong. It’s very strange that he now seems to think that there are no means less restrictive of religious liberty than the accommodation (“In my view, this method is not just a viable alternative, but an ideal method which could apply across the board”), as he explains in his essay that the “off-balance-sheet financing authorized by the HHS [accommodation] regulations cannot be tolerated” and that the “only reasonable accommodation … is for the government [not insurers or administrators] to foot the entire bill” (p. 63).

Epstein opines that Justice Sotomayor, in her dissent from the Wheaton College order, quoted a sentence from Alito’s Hobby Lobby opinion about the accommodation “with telling effect.” But, as I’ve explained, Sotomayor is wrong. (For fuller explanation, I’ll again refer the reader to this post and to point 3 here.) Jonathan Adler also makes the same point nicely. How odd that Sotomayor seems to fare better with Epstein than she did with Justice Breyer (who didn’t dissent in Wheaton College).

A Short, Final Response to Ed Whelan


My thanks to Ed Whelan for his prompt reply to my critique of his earlier views. At this point, I only wish to say why I referred to both my intellectual and tactical criticisms of Justice Alito’s opinion. 

First, the intellectual mistake was the failure to come to grips with the explicit command of the Religious Freedom Restoration Act:

The purposes of this chapter are—

(1) to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened;

(2) to provide a claim or defense to persons whose religious exercise is substantially burdened by government.

The sweep of this provision is broad. It covers “all cases” and is not limited to some particular subset. In light of this text, it is erroneous to assume that the general prohibitions of the Civil Rights Act always trump RFRA. I do not think that it is proper to look, as Whelan suggests, to “the public meaning of compelling governmental interest at the time RFRA was enacted” to ascertain the correct standard. The correct standard is derived from the statutory text itself, and its explicit reference to two cases imposes a far higher standard than Whelan embraces. My normative position dovetails with the statutory language. His does not.

Second, the tactical mistake to which I referred stems from the awkward response of the Supreme Court in dealing with the application of Wheaton College v. Burwell, which, I believe, required the Court’s majority to alter the views that it had stated less than a week before. In an earlier post Whelan claims that the only thing that the majority did was to “recognize that the accommodation showed that the HHS mandate was not the least restrictive means of advancing the supposed governmental interest.” The implication is that there were a variety of methods that might meet this standard, so that the Court correctly decided to issue its “interim order” that left the resolution of this question to some future decision.

I think that Whelan’s reading cuts the salami too fine. Justice Alito observes that it is open to “the Government to assume the cost of providing the four contraceptives at issue to any women who are unable to obtain them under their health-insurance policies due to their employers’ religious objections.” He then adds “We therefore conclude that this system constitutes an alternative that achieves all of the Government’s aims while providing greater respect for religious liberty” (emphasis added). In my view, this method is not just a viable alternative, but an ideal method which could apply across the board, including the Wheaton College application. Indeed, what would a better accommodation look like? It was no surprise that Justice Sotomayor quoted just this sentence with telling effect.

It is therefore a far cleaner resolution to rule in favor of Wheaton College on the merits by making it clear, as I have argued, that the state did not satisfy the compelling-interest standard. The fact that Whelan and I can disagree over the correct reading of the Alito opinion shows at the very least the elusive interpretation of a question that need not have been addressed in the first place.

— Richard Epstein is the Laurence A. Tisch Professor of Law at the New York School of Law.

This Day in Liberal Judicial Activism—September 22


2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

This Day in Liberal Judicial Activism—September 20


1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional. Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”  

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”


My Weekly Standard Article on Senate Elections and the Judiciary


Now available online, from the forthcoming issue of the Weekly Standard, is my article titled “The Senate and the Courts: The federal judiciary will follow the election returns.” (I didn’t come up with the title, but I like it.) Here’s my opening:

With little fanfare, President Obama has enjoyed remarkable success in his project to remake the federal courts in his own ideological image. How much more he achieves during his final two years in office depends in large part on whether Republicans win control of the Senate this November.

Reply to Richard Epstein on Hobby Lobby


Thanks to Richard Epstein for his response to my critique of his Hobby Lobby essay. I offer these points in reply:

1. Epstein says that he and I “are operating on different levels”—the Platonic judicial ideal for him versus the “practical politics of the bench” for me—in our differing assessments of Justice Alito’s opinion in Hobby Lobby. I don’t think that’s really the case.

For starters, Epstein in his essay doesn’t limit himself to the judicial ideal. He says, for example, that Alito “made a serious intellectual and tactical mistake” in failing to hold that the HHS mandate did not serve a compelling governmental interest (p. 50 (emphasis added)). Any judgment as to tactics necessarily involves an assessment of what is possible.

(As I point out in point 2 of my original post, I think that Epstein is wrong to allege that Alito made a tactical mistake. I also think that the “intellectual … mistake” that Epstein alleges—“to think it possible to leap from the first [(substantial burden on an exercise of religion)] to the third question [(least restrictive means)] without addressing this middle question [(compelling interest)]” (p. 50)—isn’t an intellectual mistake at all. It is possible to make such a move, and courts, through arguendo assumptions of the sort that Alito makes, do it routinely.)

Epstein says, “To an academic, it is the reasons that should really matter.” Well, most of my critique is directed against what I think are Epstein’s intellectually wrong reasons.

In short, Epstein’s essay, like my critique, combines “intellectual and tactical” arguments, and he and I differ on both.

2. Epstein contends that “Whelan disagrees with my conclusion that once it turns out that there is an accommodation that works for Hobby Lobby it does not follow that it has to work for religious institutions as well.” (Emphasis added; I think that Epstein means “it follows” instead of “it does not follow.”)

Epstein misunderstands my point. I don’t agree at all that Alito holds that the “accommodation … works for Hobby Lobby.” What Alito holds is that the government’s representations about the accommodation for religious nonprofits mean that the government can’t meet its burden of showing that the HHS mandate is the least restrictive means (the means least restrictive of Hobby Lobby’s religious liberty, that is) of furthering its (assumed) interest. That says nothing about whether the accommodation itself satisfies RFRA. (For more on this point, see here and point 3 here).

3. On the issue of substantial burden, Epstein says that I miss his point, “which is only that compliance is not only an issue about cost.” But Alito never says that the substantial-burden inquiry is “only” about the cost of noncompliance. (Maybe it is; maybe it isn’t.) What I objected to was Epstein’s assertion that the “correct analysis does not look at the cost of noncompliance.” (In a similar passage in his essay, Epstein charges: “Justice Alito attacks this problem in the wrong way when he insists that the cost of noncompliance, measured in fines that can run into the millions, show [sic] that the burden is substantial.”) I don’t see how Epstein’s assertion is defensible.

4. In his closing paragraph, Epstein says that “what is needed is a substantive analysis that Whelan fails to supply.” He challenges me to say whether I think his “normative case” that the government does not have a compelling interest “to force a religious group to act against its conscience by supplying standardized products that are available in competitive markets” is “wrong or correct.”

It’s true, of course, that I didn’t use the occasion of my critique of Epstein’s essay about Alito’s opinion to restate the extensive “substantive analysis” that I’ve provided (in the posts collected here (at 2.a) and in this earlier law-review essay) on why the HHS mandate doesn’t further a compelling interest. Epstein will find, on the one hand, that my reasons are not as sweeping as his, and, on the other, that they do rest in part on the fact that contraceptives are widely available. (E.g., “It cannot be seriously maintained that there is a general problem of lack of access to contraceptives.”)

Do I think that Epstein’s “normative case” is “wrong or correct”? That depends on what Epstein means by the question. If he is asking whether I think it is (to use his phrase) “an extravagant abuse of state power” to “force a religious group to act against its conscience by supplying standardized products that are available in competitive markets,” my answer is a definite yes. Further, I thank him and credit him for his brilliant work showing how counterproductive nondiscrimination principles can be (work that I drew on in my testimony last year before the U.S. Commission on Civil Rights).

But if Epstein is asking whether I think that the term compelling governmental interest in the Religious Freedom Restoration Act should be construed according to libertarian principles, I’ll have to express my doubts. Under an original public-meaning approach to statutory interpretation, the relevant inquiry is whether the public meaning of compelling governmental interest at the time that RFRA was enacted would support Epstein’s position. I’m not aware of any showing that it would.

On the Necessity for Normative Analysis in Hobby Lobby


In his recent NRO post responding to my essay on the Hobby Lobby case, Ed Whelan agrees that the decision in Hobby Lobby was correct, but thinks that I am incorrect to attack Justice Alito for slips in his reasoning. What is clear from his opening remark is that we are operating on different levels. The key claim in my essay is that the state does not have a compelling state interest to eradicate discrimination on grounds of race, or indeed anything else, in a competitive market. I summarized these arguments extensively elsewhere, most notably in my recent article in the Stanford Law Review where I offered my views on Title II of the 1964 Civil Rights Act that deals with discrimination in public accommodations. Ed Whelan’s position instead focuses on the practical politics of the bench. His “short answer” is that Justice Alito could not have garnered five votes for my position. End of story.

Whelan’s short answer is no answer at all. For all I know, Justice Alito could not have garnered even his own vote for the position I espouse. Indeed, if I were writing an analysis of the politically possible, I might have chosen to praise Justice Alito for his pragmatic accommodation that avoided a question that might have ripped his coalition asunder. But as someone whose views on the antidiscrimination laws have long disqualified him for holding public office in the United States, I am not interested in the politics of the situation. The title that I wrote was Right Result, Wrong Reasons.

To an academic, it is the reasons that should really matter. In my view there is a rising sense of authoritarian impatience that is running through the land and one of the instruments that is used to facilitate the unworthy extension of state power is the civil-rights laws in all their unsound applications. As I stated in my Stanford article, I understand, indeed insist, that some antidiscrimination law is the right response to monopoly power or to private coercion, where people are denied any alternative choices. But to say that there is a compelling interest for the government to force a religious group to act against its conscience by supplying standardized products that are available in competitive markets is to countenance an extravagant abuse of state power in my mind. I think that it is both necessary and proper to state that proposition in the most forceful way possible. Others are free to disagree, and prove me wrong. But silence in this case means that no one will try to prove incorrect a position that I regard as deeply subversive to any conception of individual liberty. I only wish that more Supreme Court Justices saw it that way. Certainly, nothing written by any Justice in Hobby Lobby examines my case. True, I did not refer to Justice Kennedy’s opinion, but his conclusory remarks only shows just how inbred judicial opinion has come on this question. He writes: “It is important to confirm that a premise of the Court’s opinion is its assumption that the HHS regulation here at issue furthers a legitimate and compelling interest in the health of female employees.” No argument; no explanation; no nothing.

Whelan disagrees with my conclusion that once it turns out that there is an accommodation that works for Hobby Lobby it does not follow that it has to work for religious institutions as well. In my view, there is no reason why a supposed accommodation that gives full relief to for profit firms can’t do the same for all sorts of religious institutions. But the key point is one that Whelan does not address, namely, that there is no reason to get into the question of least restrictive means if there is no compelling state interest to satisfy in the first place.

Whelan also takes me for task for saying that “the “correct analysis does not look at the cost of noncompliance, which may be high, but at the cost of compliance, which in monetary terms is far lower.” But his argument misses the point, which is only that compliance is not only an issue about cost. If it were the ability to avoid fines by outright payments, then of course the firm should do that. But the real point here is one of conscience. As I insisted in my article, paying one dime in support of a cause that one does not believe is the crux of the matter. No one should be required to pay any exaction, however small.

His statutory points are nits. I will mention just one. I mentioned that if Obamacare had specifically addressed this issue, it would count as a congressional trump. Whelan mentions a provision that I overlooked. “Federal statutory law adopted after November 16, 1993, is subject to this chapter unless such law explicitly excludes such application by reference to this chapter.” True enough, Obamacare did not do that. But the responses are two. First, if it had explicitly excluded the provision, my analysis would stand. Second, it is not clear to me that a first statute can declare its own dominance over a second one by specifying the way in which it is to be overruled any more than it could claim that the initial statute could only be overturned by a 60 percent vote in both Houses of Congress. It is a nice point for casuistic debate and I am uncertain as to its likely outcome.

The real battle between Whelan and myself is on the core application of the framework of the Religious Freedom Restoration Act to the contraceptive mandate under Obamacare. On that big question, what is needed is a substantive analysis that Whelan fails to supply. My challenge to him is to ask whether he thinks that my normative case is wrong or correct. On that issue, a tactical silence will just not do.

— Richard Epstein is the Laurence A. Tisch Professor of Law at the New York School of Law.

A Modest Proposal


In his latest Forbes column, George Leef suggests that, instead of killing lawyers, we deregulate them.


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