Bench Memos

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Strong Ruling in Favor of Puerto Rico’s Marriage Laws


Yesterday federal district judge Juan M. Pérez-Giménez (a Carter appointee) issued a strong ruling rejecting a challenge to Puerto Rico’s marriage laws. I have no illusion that this ruling will turn the tide, but it’s nonetheless noteworthy.

The core of Judge Pérez-Giménez’s ruling is that the Supreme Court’s 1972 dismissal, “for want of a substantial federal question,” of the appeal in Baker v. Nelson operates as a decision on the merits that forecloses the lower courts from holding that there is a federal constitutional right to marry a person of the same sex. That conclusion, Judge Pérez-Giménez explains, is correct as a matter of  basic principle and is required by recent First Circuit precedent, as the First Circuit, in the course of striking down DOMA two years ago, recognized that Baker remains binding precedent and forecloses arguments that “presume or rest on a constitutional right to same-sex marriage.”

Further, writes Judge Pérez-Giménez:

Windsor does not overturn Baker; rather, Windsor and Baker work in tandem to emphasize the States’ “historic and essential authority to define the marital relation” free from “federal intrusion.” It takes inexplicable contortions of the mind or perhaps even willful ignorance – this Court does not venture an answer here – to interpret Windsor’s endorsement of the state control of marriage as eliminating the state control of marriage.

And here’s a lengthy excerpt from Judge Pérez-Giménez’s powerful conclusion:

Recent affirmances of same-gender marriage seem to suffer from a peculiar inability to recall the principles embodied in existing marriage law. Traditional marriage is “exclusively [an] opposite-sex institution . . . inextricably linked to procreation and biological kinship,” Windsor, 133 S. Ct. at 2718 (Alito, J., dissenting). Traditional marriage is the fundamental unit of the political order. And ultimately the very survival of the political order depends upon the procreative potential embodied in traditional marriage.

Those are the well-tested, well-proven principles on which we have relied for centuries. The question now is whether judicial “wisdom” may contrive methods by which those solid principles can be circumvented or even discarded.

A clear majority of courts have struck down statutes that affirm opposite-gender marriage only. In their ingenuity and imagination they have constructed a seemingly comprehensive legal structure for this new form of marriage. And yet what is lacking and unaccounted for remains: are laws barring polygamy, or, say the marriage of fathers and daughters, now of doubtful validity? Is “minimal marriage”, where “individuals can have legal marital relationships with more than one person, reciprocally or asymmetrically, themselves determining the sex and number of parties” the blueprint for their design? It would seem so, if we follow the plaintiffs’ logic, that the fundamental right to marriage is based on “the constitutional liberty to select the partner of one’s choice.”

Of course, it is all too easy to dismiss such concerns as absurd or of a kind with the cruel discrimination and ridicule that has been shown toward people attracted to members of their own sex. But the truth concealed in these concerns goes to the heart of our system of limited, consent-based government: those seeking sweeping change must render reasons justifying the change and articulate the principles that they claim will limit this newly fashioned right.

For now, one basic principle remains: the people, acting through their elected representatives, may legitimately regulate marriage by law. This principle

is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues. It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds . . . Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people.”

Schuette v. Coalition to Defend Affirmative Action (2014) (Op. of Kennedy, J.). [Emphasis added; some citations omitted.]

This Day in Liberal Judicial Activism—October 22


1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause.

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”  


Marriage Laws and Sex Discrimination


On Public Discourse, Sherif Girgis has a fine essay explaining why state laws that define marriage as the union of a man and a woman should not be subjected to heightened scrutiny as sex discrimination. An excerpt:

In none of the typically suspect groupings (racial, ethnic, etc.) do the very categories of the grouping have any inherent positive (or negative) connection to a legitimate political end. They have such a connection, if at all, only by virtue of contingent and changeable social or cultural goals. Those goals have often been malign. So it makes sense not to presume their legitimacy, and to devise rules for scrutinizing them—as the Court has done.

But the male-female sexual grouping is necessarily linked, by the concepts involved, to a social purpose we did not simply invent and can scarcely do without: society’s reproduction. In this way, the classification in marriage laws differs from any racial grouping, even from other sex classifications.

One of the scholars whose contrary conclusion Girgis disputes is Steve Calabresi, who in this short, curious article argues:

State laws that ban same sex marriage formally discriminate on the basis of sex in the same way that State laws that banned interracial marriage discriminated on the basis of race. Same sex marriage laws [sic] allow a man to marry a woman but not another man. This is, again as a formal matter, sex discrimination plain and simple.

I find Calabresi’s reliance on formal discrimination especially puzzling. In his article three years ago on Originalism and Sex Discrimination”—which I critiqued in a series of posts (links here)—Calabresi argued that the Fourteenth Amendment “was meant, as an original matter, to forbid class-based legislation and any law that creates a system of caste.” If he were faithful to the approach he took in that article, he would explore whether laws that define marriage as the union of a man and a woman treat women as a caste—and he would, I think, have to answer that question no. But instead he doesn’t even address it.

Sex-segregated public bathrooms, I’ll note, surely also involve formal discrimination on the basis of sex. Under Calabresi’s new reasoning, states could maintain such bathrooms only if they can offer an “exceedingly persuasive justification” for them. I think that’s a conclusion that any originalist ought to find ridiculous. 

This Day in Liberal Judicial Activism—October 21


1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. On his death in 1983, a New York Times obituary praises him for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.” 

On Toobin on Obama’s Judicial Legacy


Jeffrey Toobin’s new New Yorker essay on President Obama’s judicial legacy is replete with his usual propagandistic distortions and sloppy errors. It would be tedious to try to document them all. But I will comment on a few of them:

1. When Toobin asked President Obama to identify the “best Supreme Court decision of his tenure,” Obama responded by praising the Court’s decision two weeks ago to deny review of various lower-court rulings striking down state marriage laws. Toobin then offers this astounding mistranslation of Obama’s response:

In other words, Obama’s favorite decision was one in which the Court allowed the political process to go forward, one state at a time. [Emphasis added.]

Far from “allow[ing] the political process to go forward, one state at a time,” the Court’s denial of review of the rulings by the Fourth, Seventh, and Tenth Circuits leaves in place the judicial imposition of SSM in Virginia, Indiana, Wisconsin Utah, and Oklahoma and guarantees that those rulings will be applied to the remaining states in those circuits. Further, it signals that the Court will acquiesce in the judicial imposition of SSM by other courts of appeals—a signal that it took the Ninth Circuit but a day to act upon.

The way for the Court to “allow[] the political process to go forward, one state at a time,” would have been to reverse the lower-court rulings and to rule that the question whether or not to redefine marriage to include same-sex couples is a matter that the Constitution leaves to the democratic processes. That position on the constitutional question is the one that Obama used to hold (or used to pretend to hold), but he has now abandoned it, as Toobin makes clear: Obama “told me that he now believes the Constitution requires all states to allow same-sex marriage.”

2. Toobin claims that the Gang of 14 Agreement of 2005 somehow meant, “when Obama became president,” that “the minority party in the Senate—now the Republicans—was supposed to acquiesce to votes unless the judicial candidate presented ‘extraordinary circumstances.’” But as I have spelled out in detail in these two posts:

a. The Gang of 14 agreement expressly related only “to pending and future judicial nominations in the 109th Congress”—that is, for 2005 and 2006. In other words, the agreement by its own terms stopped having any operative effect at the end of 2006. (That’s why one of the Democratic signatories, Mary Landrieu, could vote against cloture on the nomination of Leslie Southwick.)

b. Then-Senator Obama and other Democrats who were not signatories to the Gang of 14 agreement never regarded that agreement as somehow limiting their freedom to filibuster judicial nominees. 

c. It’s passing strange to think that a time-limited agreement among 14 senators could effect a permanent change to the Senate’s practices.

3. Memo to the New Yorker’s legendary (mythical?) fact-checkers: While Toobin’s routine distortions are beyond your power to correct, you missed some elementary errors:

a. Toobin asserts that “few Republicans had any substantive objections to any of the [D.C. Circuit] nominees” up for confirmation last November. In fact, lots of Republicans had lots of substantive objections to Cornelia Pillard.

b. It was in 2003 (after they lost control of the Senate in the 2002 elections), not in 2005, that Democratic senators “decided to make a stand” against “several of [George W. Bush’s] circuit-court nominees” by launching the unprecedented use of the filibuster against judicial nominees. (Over two years, ten Bush 43 judicial nominees encountered a total of 20 defeated cloture motions. That data, unnoted by Toobin, undermines his assertion that “Who filibustered more—the Democrats under Bush, or the Republicans under Obama—is disputable.”)


This Day in Liberal Judicial Activism—October 20


2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its unanimous per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted. 

Podcast on Hobby Lobby


The Cato Institute has kindly posted a podcast of my remarks on the Hobby Lobby ruling at its Constitution Day symposium last month.

More on Houston’s Harassment of Pastors


Houston mayor Annise Parker asserts that this New York article on Houston’s subpoenas to pastors “got it right.” So let’s take a look at what the article contends.

1. The article concedes that the “upset pastors and their defenders may in fact be right about the subpoenas being overbroad.” But it tries to defend Parker by saying, “The mayor agrees, if only they’d asked her.”

It’s ridiculous to contend that the pastors, having received a subpoena from the City of Houston, should have asked Parker for her view of the subpoenas. Had she been doing her job responsibly, Parker would have reviewed and objected to the subpoenas before they were sent out.

Further, Parker’s initial public response was to approve of the subpoenas:

If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-HERO [ordinance] petition?

She has only retreated from that position in the wake of public criticism.

Parker’s position also appears lawless. She has no business objecting to pastors using their “pulpits for politics” and treating them as targets (“fair game”) if they do. Apart from the fact that “politics” is a nebulous term whose definition should not be left to hostile politicians, pastors have the same First Amendment rights that everyone else has, and they may use their pulpits for whatever lawful purposes they choose—yes, including politics​.

If a pastor’s church is a 501(c)(3) organization under federal tax law, federal guidance bars (or at least purport to bar) the church from “directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” But it says nothing against giving instructions on a referendum petition. And even if it did, that would be a matter between the IRS and the church, not any business of the mayor’s.

2. The article contends that the pastors’ “complaints make it sound like the pastors are about to be tried for hate speech using the new law, which is far from the case.” No, the pastors’ complaints simply mean that they object to the baseless and harassing fishing expedition (or, given Parker’s “fair game” comment, perhaps it’s a hunting expedition) that the City of Houston is threatening to undertake—and to the chilling effect that expedition would have on citizens who exercise their legal rights to stand up against city officials who abuse their power.

3. The article claims that a narrower version of the subpoenas would be justified by the city’s interest in discovering “what kinds of instructions the pastors gave out with respect to collecting petition signatures, and whether what they said agrees with what they’re arguing in court while appealing the referendum.” I have no idea what this is supposed to mean.

For starters, the relevant legal question under the provisions of the Houston city charter that govern a referendum petition would seem limited to whether the petition received (as the city secretary certified that it did) a sufficient number of valid signatures. If someone can explain how the “kinds of instructions the pastors gave out” bears on this matter, I’d be interested.

Further, the pastors aren’t parties to the pending litigation, so the article’s assertion that the subpoenas might help to see “whether what they said agrees with what they’re arguing in court” makes no sense.

Mayor Parker, it’s time to respect the First Amendment and to repudiate the subpoenas entirely.

Rules Are Not the Problem; People Are


Last month, The Atlantic featured an essay by Philip K. Howard with suggestions about how to fix the broken federal bureaucracy. Howard thinks that the way to fix government at the most fundamental level is to replace specific legal rules with general legal principles:

What’s the alternative? Put humans back in charge. Law should generally be an open framework, mainly principles and goals, leaving room for responsible people to make decisions and be held accountable for results. Law based on principles leaves room for the decision-maker always to act on this question: What’s the right thing to do here?

Howard’s argument is superficially attractive. He correctly identifies the red-tape complexity of regulations as a source of wasted effort and irrationality. He also proposes commonsense-type reforms, ranging from reducing the number of regulations to scaling back rules that eliminate accountability for government incompetence.

But he doesn’t recommend that regulatory powers be scaled back; just that detailed laws be replaced by principles that would, in his view, foster responsibility and good judgment. This is problematic.

First of all, without scaling back government power, broad legal principles don’t really provide any certainty about what conduct is proscribed or required. Granting power with the charge “do the right thing” is necessarily a vast grant of authority with little to no corresponding information about how it would be exercised. This gives the government maximum authority, but without properly informing its potential targets how to avoid punishment.

For that reason, the proposal is anti-legal. As Blackstone observed hundreds of years ago, “[a] bare resolution, confined in the breast of the legislator, without manifesting itself by some external sign, can never properly be a law.” Sure, discretionary enforcement isn’t nearly as bad as Caligula publishing laws printed in small type and posting them too high for the public to read, but hopefully America has higher constitutional standards than the Roman Emperor who appointed his horse to be a priest.

Howard nevertheless thinks that principles would be more just than legal rules:

Principles, ironically, are less susceptible to abuse of state power and gamesmanship than precise rules. One of the many paradoxes of “clear law” is that no one can comply with thousands of rules. With principles, a citizen can stand his ground to an unreasonable demand and have a good chance of being supported up the chain of authority.

Seriously? Why would we expect an indeterminate legal “principle” to protect citizens more than a legal “rule?” Legal theorists consider principles to be less determinate, and therefore more susceptible to manipulation, than rules. The Administrative Procedure Act and the Chevron doctrines specifically enable the government to prevail unjustly, forbidding courts from second-guessing agency mistakes as long as they comport with broad principles, i.e., not arbitrary and capricious, an abuse of discretion, or otherwise illegal. In other words: The government wins as long as it wasn’t totally irrational.

Howard tries to deal with the obvious problems that would result from unleashing the government. In Howard’s view, the law is just holding back all the good work it wants to do:

But what about human error and venality? Does law based on principles mean we must trust people? Of course not. That’s why accountability is still important. Moreover, for important decisions, a structure can require approval of several people. Nothing can get done sensibly or fairly, however, until we reconstruct government with a legal framework which liberates people to roll up their sleeves and make things happen.

No doubt that there are many government employees who use their powers wisely. But why does Howard think that an approval structure eliminates the accountability problems? Just look at how agencies circle their bureaucratic wagons in a scandal no matter who is in power. For Howard’s argument to work, the “chain of authority” would have to be invariably concerned with “doing the right thing” more than defending its budget, reputation, employee headcount, access, power, and privileges. Good luck with that.

Second, Howard doesn’t seem to know how accountability works under the Constitution. One of his opening arguments is this:

Responsibility is nowhere in modern government. Who’s responsible for the budget deficits? Nobody: Program budgets are set in legal concrete. Who’s responsible for failing to fix America’s decrepit infrastructure? Nobody. Who’s responsible for not managing civil servants sensibly? You get the idea.

Truly strange. As any high-school civics lesson would show, the president is responsible for bad management decisions and shares responsibility with Congress for the rest. All of these officials are democratically accountable. It’s not that they aren’t responsible; it’s that voters don’t hold them responsible. If you don’t like how the government is being run (and there is much to dislike), then either change the law, policy, or the officials themselves. In other words, participate in democracy.

This Day in Liberal Judicial Activism—October 16


1898—William Orville Douglas, who, alas, will become the longest-misserving justice in Supreme Court history, is born in the town of Maine in Minnesota.

A George Leef Column You Can Sink Your Teeth Into


It’s on North Carolina Board of Dental Examiners v. Federal Trade Commission, which was argued before the Supreme Court yesterday, and you can read it here.

Re: Houston’s Harassment of Pastors


According to the WSJ Blog, as Houston’s mayor tries to back away from the massively overbroad subpoenas,* Houston’s city attorney maintains that it’s still somehow proper to obtain the pastors’ communications (including sermons) “related to the [referendum] petition process”:

Houston City Attorney David Feldman suggested to the Houston Chronicle in a story published Tuesday [registration req’d] that the documents demanded by the city could shed light on the extent to which signature gatherers opposing the ordinance were aware of the rules governing the referendum process.

Reports the Chronicle:

Feldman said the pastors made their sermons relevant to the case by using the pulpit to do political organizing. That included encouraging congregation members to sign petitions and help gather signatures for equal rights ordinance foes, who largely take issue with the rights extended to gay and transgender residents.

The city attorney’s statements make no sense to me. First, either the signature gatherers complied with the rules or they didn’t. What they “were aware of” is irrelevant to that question. Second, I don’t see anything in the referendum rules that bars pastors from “encouraging members to sign petitions and help gather signatures.” (If I’m missing something, I invite correction.) So I don’t see how any of the pastors’ communications relating to the referendum petition process might be thought to be relevant to (or to lead to anything relevant to) anything in the ligitation.

* Update: I now see that the mayor and the city attorney are on the same wrong page. Via Twitter, Mayor Annise Parker writes“If the 5 pastors used pulpits for politics, their sermons are fair game. Were instructions given on filling out anti-[ordinance] petition?”​

Houston’s Harassment of Pastors


In an extraordinary step, the city of Houston is seeking to compel pastors to provide all documents in their possession—including all sermons as well as “emails, instant messages, text messages,” and other electronic data—relating in any way to Houston’s recently enacted “equal rights” ordinance. (The full text of one of Houston’s subpoenas is available here.) Among other things, that ordinance entitles men who think they’re women to use women’s restrooms.

After the ordinance was enacted, voters exercised their right to seek to repeal the ordinance through a referendum. They obtained the signatures for a referendum petition and presented it to the city secretary, who certified it as valid. But Houston’s mayor and city attorney rejected the petition. Voters then sued to challenge the rejection. It’s in this action—to which the pastors are not parties—that Houston is serving the subpoenas on the pastors.

The Houston subpoenas are grossly overbroad, for the reasons that the Alliance Defending Freedom, counsel to the pastors, spells out in its motion to quash (and that Eugene Volokh addresses in point 2 of his post). As ADF puts it:

[I]t appears they were designed to punish the Nonparty Pastors for being part of the coalition that invoked the City Charter’s referendum provision, and discourage them and other citizens from ever doing so again. The message is clear: oppose the decisions of city government, and drown in unwarranted, burdensome discovery requests.

Two other factors appear to be at work. The first is the clash between the transgender ideology and religious liberty. Mark Steyn sums it up aptly:

When the transgendered bathroom ordinance runs up against the First Amendment, it’s the First Amendment that gets left for roadkill.

The second factor, I’d suggest, is the scorched-earth litigation strategy of so many modern law firms. Geoffrey L. Harrison, Alex Kaplan, and Kristen Schlemmer of the law firm of Susman Godfrey are representing the city of Houston, and they seem not to have given a moment of careful thought to the First Amendment implications in this case of the sort of bullying discovery that they and other lawyers routinely engage in. I would say that they are a disgrace to the legal profession, but I fear that they are all too typical of it.

This Day in Liberal Judicial Activism—October 15


1956—So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure. 

Re: Somewhat Higher Than One in 7.87 Trillion


A follow-up to my post highlighting concerns about Judge Reinhardt’s seemingly non-random assignment to Ninth Circuit cases:

This Texas Law Review article from 2000, titled “Neutral Assignment of Judges at the Court of Appeals,” makes a compelling argument that Fifth Circuit case assignments in civil-rights cases in the early 1960s were manipulated in order to ensure pro-civil rights majorities. (I learned of the article from the en banc petition that has been filed.)

The article also surveys assignment systems in the federal courts of appeals as of 2000 and concludes that “all systems permit a certain level of discretion and human intervention that, in the wrong circumstances, could be abused.” With respect to the Ninth Circuit in particular, the article observes that, rather than enforce a strict separation between the panel and case assignment processes, the Ninth Circuit clerk’s office “runs the [computer] program assigning both judges and cases.” The article faults those courts, like the Ninth Circuit, that seem to think that “the increased use of computer programs to assign cases” makes separation of the processes unimportant. It sets forth what its authors regard as the essential elements of a neutral assignment system.

(I don’t know what system the Ninth Circuit currently uses.)

Somewhat Higher Than One in 7.87 Trillion


Josh Blackman reports that an attorney for a group defending the marriage laws of Nevada and Idaho has filed a petition for rehearing en banc in the Ninth Circuit that alleges that the “appearance is strong and inescapable that the assignment of this case to this three-judge panel was not done through a neutral process but rather was done in order to influence the outcome in favor of the plaintiffs.”

Law professor Derek Muller calculates at roughly one in 1,000 the odds that any single active judge on the Ninth Circuit would be randomly assigned to all three recent Ninth Circuit panels involving challenges to marriage laws and/or alleged sexual-orientation discrimination. But Reinhardt did indeed sit on all three (yes, even the case in which the ACLU affiliate that his wife led had taken part and in which she had publicly “rejoice[d]” over the district-court decision that Reinhardt would be reviewing).

Reinhardt’s seeming luck isn’t limited to these three cases. Concerns have circulated for years among conservative judges on the Ninth Circuit about Reinhardt’s amazing propensity to be selected to sit on important cases with a strong ideological valence. (You’ll find some of the cases here.) I’ll leave it to an advanced statistician to try to figure out the odds that random assignment would place Reinhardt on all of the larger set of cases. Perhaps it wouldn’t reach one in 7.87 trillion—the odds (according to DNA analysis) that someone other than Bill Clinton was responsible for messing up Monica Lewinsky’s blue dress—but I’m confident that it would be incredibly low.

I’m strongly inclined to wonder whether nefarious hijinks in the Ninth Circuit clerk’s office in San Francisco, rather than sheer luck, would explain the phenomenon. The clerk’s office could dispel such concerns if it disclosed any safeguards that it deploys to protect against such an abuse.

[Note: About ten minutes after my initial posting, I deleted a sentence from the second paragraph that I decided mispresented the odds.]

D.C. Event on Marriage and Religious Liberty


Next Tuesday, October 21, I will be speaking on the topic “What’s Happening at the Supreme Court? The Fights for Marriage and Religious Liberty” at a lunch sponsored by the Thomas More Society of America. More info on this downtown D.C. event is here.

This Day in Liberal Judicial Activism—October 14


1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment. 

This Day in Liberal Judicial Activism—October 12


1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Marriage, Dred Scott, and the Fog of Unreason


Last week in this space, I referred to the trend of same-sex marriage rulings, now unfortunately sanctioned-by-omission by the Supreme Court, as a “slow-motion Dred Scott.”  This got a rise out of people who professed to be offended—which did not surprise me since so many people have made being offended an actual career choice.  So I later explained what I meant by it.

The result?  My own Two Minutes Hate.  My Twitter feed exploded with touching expressions of regard.  Someone pronounced me “A**hole of the Day” (considering the folks responsible, I’d be happy to own it for a whole week).  I heard from an old friend 500 miles away that I even earned 10 seconds of infamy on “The Colbert Report.”   (For more on Mr. Colbert, see this.)

I was away from any access to Twitter for the better part of a day, and when I returned to my desk I had actual work to do and people to talk to (the expression “social media” does not do justice to the negative impact that obsession with them has on real social life).  So I’ll just make some postscript observations here, now that the detritus of people’s heads exploding has settled to earth.

I noticed that no one who knows anything about constitutional law or the Dred Scott case had any real criticism to offer of what I’d said.  That’s because among such people, comparisons like the one I’d made are a nickel a dozen.  Dred Scott is the paradigm case of judicial “statesmanship” turned bad, with the Supreme Court defying legitimate norms of the rule of law and limits on its own power, while foisting a wholly fictitious account of constitutional meaning on a country deeply divided over the issue that the Court decided.  It also occasioned one of the most celebrated critiques of judicial supremacy in our history, from our greatest statesman.  Aside from that last feature—unfortunately—the episode has striking parallels to our present situation.

Did I therefore mean to say that same-sex marriage is the moral equivalent of slavery?  Only someone who would struggle to earn a D in a basic logic course would draw that conclusion.  I do indeed think state recognition of same-sex marriage is morally objectionable, as do roughly half of all Americans—maybe considerably more than half, but now the courts in most of the country have ruled out any possibility of inquiring into that for purposes of democratic decision-making.  None of us, so far as I know, thinks it is as bad as treating human beings like chattel property.  There, now, does everyone feel better?

Could I have compared same-sex marriage rulings to Roe v. Wade?  Sure, but for 40 years it has been routine to compare Roe to Dred Scott, and rightly so.  Roe relied on the fraudulent doctrine of substantive due process, which is widely understood to have made its first appearance in Dred Scott.  Why cite the sequel when you can cite the original?  Besides, as Ed Whelan pointed out on Twitter, comparing the marriage cases to Roe would not have much purchase with folks who think there’s a constitutional “women’s right to choose”—who largely coincide with same-sex marriage advocates.

Let’s see, I could have compared the marriage rulings to Lochner v. New York.  That too is a notorious substantive due process case, which for over a century has been anathema to liberals who claim (sometimes) to be worried about judicial over-reaching.  Would people infer that I thought same-sex marriage is the moral equivalent of “progressive” interferences with the terms of employment arrangements in bakeries?  I didn’t think so.

Or I could have compared today’s cases to Griswold v. Connecticut, in which the Court strained not to appear to be doing what it was really doing all over again through the due process clause—making a policy judgment instead of a legitimate constitutional decision.  Then people could have complained that I thought same-sex marriage is “just as bad as” . . . married men and women using condoms.  I can feel the waves of loathing from here.

The bad thing about Twitter’s limitations is that arguments can’t be much developed in just 140 characters.  The worse thing about Twitter is that lots of people think this is an excuse for retiring permanently from the business of making arguments.  Judging from the performances of American courts in the last few years, the same-sex marriage issue is having the same effect on many judges, even when they have 140 pages to play with.




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