Bench Memos

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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that the vast majority of the cloture motions that Reid has filed during the Obama administration either have been withdrawn or have won strong Republican support.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.

Petition for Rehearing En Banc Denied in Fisher


As in Fisher v. University of Texas, the challenge to that school’s use of racial and ethnic admission preferences. So we are probably headed back to the Supreme Court, which is not a bad thing, not a bad thing at all.

This Day in Liberal Judicial Activism—November 12


1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.

1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens.

Judge Daughtrey’s Tantrum


After a month of gloom ever since the Supreme Court’s denial of certiorari in several same-sex marriage cases on October 6, there came last Thursday, November 6 the welcome news that a 2-1 majority of a Sixth Circuit panel had upheld the marriage laws of Michigan, Ohio, Kentucky, and Tennessee.  Judge Jeffrey Sutton has been rightly praised (here and here at NRO, for instance) for the clarity and persuasiveness of his opinion for the majority in DeBoer v. Snyder

What has been less remarked is the astonishingly poor quality of the dissent written by Judge Martha Craig Daughtrey.  Some commentators have pointed out that her 22-page opinion begins with snark (“The author of the majority opinion has drafted what would make an engrossing TED talk or, possibly, an introductory lecture in Political Philosophy”), and ends with the insinuation that her colleagues have violated their oath of office by declining “to right fundamental wrongs.”

But I have not seen anyone point out that it is Daughtrey who seems not to grasp the oath she quotes, requiring judges to “administer justice without respect to persons.”  That not only means that the rich and powerful get no favored treatment.  It means, more generally, that every claim brought into court is viewed dispassionately, with detachment, without presuppositions about where justice lies, with the claims of the litigants measured by accepted norms of law.

Judge Sutton’s opinion for the court in DeBoer is a model of exactly that dispassionate detachment.  But Judge Daughtrey’s opinion is driven not by legal reasoning but by passionate outrage.  It is acceptable for a judge, especially in dissent, to give voice, even in a kind of prophetic mode, to passionate denunciation of error and injustice.  But such denunciation should follow from dispassionate legal analysis proving one’s side of an argument.  Hammering home one’s conclusions passionately is fine.  But if one’s premises begin in passion, not in reason, fallacies, errors, and sloppy argumentation will probably result.

From the beginning, Judge Daughtrey betrays herself in just this way.  She writes on her first page that the majority fails to “recogniz[e] the plaintiffs as persons, suffering actual harms as a result of being denied the right to marry.”  One’s hair should stand on end upon reading this, for the entire purpose of a legal case like this one is to determine whether a harm has occurred because a right exists and a power has illegitimately infringed that right.  Rights and powers, harms and remedies: these are the conclusions in law for a decision such as this.  Daughtrey has made a presumed “right” and a “harm” to that right the major premise of her argument, and thus begun her entire opinion by begging the question in the case.  Is there a constitutional “right to marry” that extends to couples of the same sex?  Have the plaintiffs been harmed at all?  Sutton’s opinion asks these questions and answers them.  Daughtrey “knows” already, and can’t be bothered to support her presuppositions.

Of course, there is a subtle but vital difference between “harm” in the legal sense and “feeling aggrieved” in some psychological sense.  Daughtrey conflates the former with the latter, a move confirmed a page later when she complains that the question “But what about the children?” is ignored by the majority.  Then she delivers herself of an extended discourse on the circumstances of the plaintiffs in the cases reviewed by the court.  But this, as every student of logic and rhetoric knows, is a fallacy, the argumentum ad misericordiam, an argument that we should be moved by pity or compassion for someone whose situation is portrayed as pitiable.  But the question “what is justice?”—much less the narrower question “what is the law of the Constitution?”—is not answered by asking another question, “how much do you feel sorry for the plaintiffs when I describe them sympathetically?”  It’s a classic move in the closing arguments of personal injury lawsuits, but it has no place in constitutional law.

Daughtrey’s opinion does not get any better after these opening gambits.  Her best bits are simply borrowed from other judges’ recent opinions in same-sex marriage cases, with her heaviest reliance on the sprightly prose and bad reasoning of Judge Richard Posner of the Seventh Circuit.  Perhaps she could not be bothered to do her own thinking “[b]ecause the correct result is so obvious,” as she herself puts it.  When she does offer us something that passes for thinking, it’s an empty truism like this: “the courts are assigned the responsibility of determining individual rights under the Fourteenth Amendment, regardless of popular opinion or even a plebiscite.”  Well . . . yes.  Now can you tell us why you think some “individual rights under the Fourteenth Amendment” have been violated by a plebiscite conforming to the understanding of marriage that has characterized the law for many centuries?  Um . . . no.  She cannot.

It seems to have something to do with “progress,” though.  In a particularly lame response to Judge Sutton’s analysis of whether the original meaning of the Constitution is any help to the plaintiffs (and of course it is not), Judge Daughtrey complains that Sutton refers to what “the people who adopted the Fourteenth Amendment understood it to require,” and then writes: “The quick answer is that they undoubtedly did not understand that it would also require school desegregation in 1955 or the end of miscegenation laws . . . culminating in the Loving decision in 1967.”

Really?  Has Judge Daughtrey so completely checked out of the world of legal scholarship as not to know there are serious scholarly arguments that Brown v. Board of Education and Loving v. Virginia represent the original understanding of the Fourteenth Amendment?  There are active debates to this day with respect to whether those arguments hold water.  But they do exist and are taken seriously.

Why would Judge Daughtrey write so dismissively of the search for the original meaning of the Fourteenth Amendment?  Very simply, because it is a) traditional to undertake such a search, especially in cases under any provision of the Constitution where there is a question of breaking new ground, and b) because it gets in her way.  It is fatal to her ideological project of imposing same-sex marriage on the country by means of judicial review. 

Readers of Judge Sutton’s opinion, taken with his clear reasoning and his elegant prose, might not have noticed something else about it on their first reading of it.  It is customary, in either the body or the footnotes of the opinion for a divided court, for the author of the majority opinion to quote and (attempt to) rebut any published dissent.  Judge Sutton never once stoops even to notice Judge Daughtrey’s dissent.  He never even mentions the existence of a dissent in the case.  Judge Sutton is evidently a gentleman.  It is the greatest kindness he could have done Judge Daughtrey, to let her sloppy, fallacious, pounding-on-her-desk-with-fury opinion speak for itself, and refute itself.  Any notice of it on his part would have been an unseemly piling on.


Will the Supreme Court Hear the Same-Sex Marriage Cases This Term?


Josh Blackman has some interesting analysis about the likelihood that the Sixth Circuit marriage cases will end up at the Supreme Court this term.  I agree that the cases are on the bubble in terms of whether they would get decided this term or the next. I’ll note, however, that even his updated assumptions about the timing of filing fall far short of what we saw in the previous marriage cases, whose petitions for cert were considered in September.  

Not only were the collection of earlier marriage cases unique, in that respondents were actually supporting certiorari, the times for filing were wildly accelerated. The Seventh Circuit cases produced an amazing coincidence of the petition for cert and response filed the same day — and both only five days after the decision came down. (The Supreme Court Rules, as Josh points out, allow petitioners 90 days to file and then give respondents 30 more for their brief in opposition.) Additionally, my recollection of the practice of the clerk’s office is that it rarely waited for a reply brief before circulating a petition for consideration.  

I’m not sure what the parties — particularly the respondents — are thinking about whether it would be better strategically to be heard this term or the next, but I think we ought to consider the possibility that respondents end up supporting cert.  

Why would a state that won below ask for review? Especially given the split that has now arisen, I think court-watchers would agree that this issue has about a 99 percent chance of being decided by the Supreme Court eventually. If it’s going to get there eventually, wouldn’t you want to be the party that got to argue before the Court and eventually have your name on a landmark case? If respondents think a quicker hearing gives them a better chance of victory they might file quickly; if not, they might run out the clock and take their chances next term.


Raisin Administrative Committee


Yes, that’s right, we’re from the Raisin Administrative Committee and we’re here to take half of your raisins. George Leef explains why the Supreme Court should grant review in this case, but, really, isn’t it obvious? If the government can take your raisins, then it can take your chocolate chips.


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