Bench Memos

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Marriage and the Race to the Supreme Court: What to Look for at the Fourth Circuit


Now that we know which horse took home the roses at the Kentucky Derby (California Chrome), it’s time to consider the odds on another race — this one a relay that began in May, 1970,when two male students at the University of Minnesota applied for (and were, predictably, denied) a marriage license: Which state marriage law challenge will be first past the post in the U.S. Supreme Court?

For advocates of same-sex (or “genderless”) marriage, the prize in this race is a Supreme Court majority opinion that invalidates all state laws that define marriage as the union of one man and one woman.  The U.S. Supreme Court refused to take that step in United States v. Windsor, but many interpret it as hinting strongly that both Congress and the states must grant legal recognition to same-sex marriages, and that that anyone who refuses to do likewise is a bigot.  Windsor was thus the opening shot in what most legal commentators agree will be the last two legs of the race.

Over 60 challenges to state marriage laws have been filed in state and federal courts since Windsor was decided in June, 2013. Taking their cue from Justice Kennedy’s opinion in that case, the lower courts have uniformly held that laws defining marriage as a union of one man and one woman are unconstitutional.  The action (and drama) now shifts to the federal circuit courts.  An appeal from one or more of the cases currently pending will inevitably put the marriage question front-and-center on the U.S. Supreme Court’s docket in the 2014-2015 Term.  Which case will it pick?

To date, the Tenth Circuit has heard oral arguments in challenges to Utah’s and Oklahoma’s marriage amendments, but has yet to issue an opinion.  While we wait for those opinions, all eyes now turn to the Richmond-based Fourth Circuit, which will hear oral arguments today in Bostic v. Rainey, a challenge to Virginia’s marriage laws.  

Bostic is a “case-to-watch” for several reasons.

Virginia’s marriage laws defining marriage as the union of one man and one woman have been on the books since 1632.

The nature and scope of the fundamental right to marry is at issue.  While Loving v. Virginia and multiple other Supreme Court decisions have affirmed the fundamental right to marry, it has always been assumed that the relationship involved would be male-female.  Advocates of same-sex marriage are attempting to expand the scope of this fundamental right to marry to include same-sex couples (“non-gendered” relationships) relying on this precedent, so it will be interesting to see how judges address this issue.

In the Tenth Circuit, the litigants knew who the panel members would be prior to the day of argument.  In Bostic, the litigants will not learn the members of the Fourth Circuit panel until the morning of oral arguments.  

Good lawyers know that the make-up of the court will play a big role in the oral arguments and in the majority’s reasoning once the case is decided.

So, what do we know about the judges on the Fourth Circuit? Sixteen judges sit on the Fourth Circuit: Six were appointed by President Obama, four by President Clinton, one by President Reagan, and five by Presidents George H.W. Bush and George W. Bush.

Though oral arguments are rarely the occasion for placing bets, they do provide excellent scouting opportunities.  A judge’s questions provide valuable insights on his or her approach to the issues in the case, so pay particular attention to which judges are on the panel, to the questions they ask, and to their reactions to the advocates’ answers.  

We will want to know, in particular, whether they accept the lower court’s premise that ”love and commitment to one another” is the only constitutionally-acceptable definition of a marriage.  We will also want to know whether the panel judges appear to agree that Virginia’s understanding of marriage as a relationship between one man and one woman is, like race discrimination, a ”law . . . rooted in unlawful prejudice.”

For answers to these questions and more, stay tuned. The audio recording of the oral argument will be available on the Fourth Circuit’s website on Thursday, May 15.

— Robert A. Destro is professor of law and founding director of the Interdisciplinary Program in Law & Religion at The Catholic University of America’s Columbus School of Law in Washington, D.C.


This Day in Liberal Judicial Activism—May 13


1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.  


David J. Barron, Part 5: ‘Big Waiver’


So far in my series about David J. Barron (Part 1, Part 2, Part 3, and Part 4), President Obama’s pick for the First Circuit Court of Appeals, I have emphasized that Barron’s judicial philosophy would incorporate an agenda for using constitutional law to accomplish political objectives which he calls “progressive constitutionalism.” This agenda includes the deliberate inversion of the Constitution’s federal scheme.

This post addresses another serious defect in Barron’s view of the Constitution: his belief that Congress can simply allow the Executive Branch the broad ability to “waive” inconvenient laws. To his credit, Barron doesn’t endorse President Obama’s apparent view that the president can refuse to enforce duly enacted laws on his own constitutional authority. Instead, Barron proposes that Congress do something almost as bad: authorize the President to refuse to enforce duly enacted laws. As Barron describes, this would take the following form: “Congress passes a statute telling an agency to accomplish, among other things, X, and Congress also empowers the agency to waive part or all of X.”

He calls that “Big Waiver”. The purpose of “Big Waiver” is, in Barron’s view, to allow administrative agencies to “displace a regulatory baseline that Congress itself has established.” In other words, Barron wants Congress to let agencies rewrite congressionally enacted policies.

This sort of waiver, especially the broad kind that Barron favors, flies in the face of the non-delegation doctrine, a separation-of-powers rule requiring that laws announce an “intelligible principle.” As Justice Scalia explained the non-delegation doctrine in Whitman v. American Trucking Ass’ns, the question is whether a statute has delegated legislative power to the agency, which would be forbidden since the Constitution vests legislative power solely in Congress. Congress can avoid a wholesale delegation of its legislative power by setting out an “intelligible principle” for the Executive to follow rather than giving an agency free rein to add (or, here, remove) content to congressionally enacted laws.

Affirming Big Waiver’s constitutionality by weakening the non-delegation doctrine would, in Barron’s view, offer benefits that he sees in several of the Obama Administration’s key policy priorities. For instance, the Administration aggressively used provisions of the No Child Left Behind legislation to grant waivers to 33 states and Washington, D.C., allowing these states to receive federal funds but ignore congressional policy. Barron also lauds the Affordable Care Act’s waiver provisions,which allow states to be exempted from the ACA’s elements by proposing their own health-care schemes, and the Secretary of Health and Human Services’ move to waive work requirements as a condition of receiving welfare funds. (On the latter point, Barron delicately describes HHS’s statutory interpretation as “by no means self-evident.”)

Barron mentions several more examples, but the sticking point in all of these “Big Waiver” provisions is this: granting the waivers lies entirely within the discretion of the relevant department. The statutes authorizing waivers amount to vast delegations of power to the executive branch, not only to act, but not to act, and to specify the conditions under which waiver will be granted. The power to declare the law not to be the law is effectively a new form of delegation.

And Barron is all for it. He argues that Big Waiver makes the government better able to do a variety of things, including “establish positive rights through direct welfare provision.” He considers it an advantage to allow the federal government to treat parties differently by allowing for “nonuniform, easily revised problem-solving efforts.” Most of all, Barron thinks it is the perfect tool for avoiding “legislative gridlock” (which the Framers would have called “checks” and “balances”). He even endorses the outrageous idea that Congress should vote for legislation in bad faith:

Legislators of the same party as the President can sign on to seemingly detailed and restrictive legislation that constrains him, knowing that the President’s interests will be protected (if at a high cost) through the safety valve that waiver provisions afford. And legislators of the opposite party can stomach the delegation of authority to the executive precisely because they can spell out in the statute their own preferred regulatory approach, thereby saddling the President with the decision to displace it. In this way, legislators can claim credit for having solved a problem, while either downplaying the significance of the fact that the supposed “solution” is actually far from stable or highlighting to their favored constituents in relatively discrete tones the instability of those features of the framework that cause concern to those same constituents.

In essence, Barron is cynically proposing that members of Congress vote for bad policy because there’s an escape hatch somewhere, to be exercised someday. Moreover, he proposes that this sort of power-driven log-rolling could convince the executive branch to agree to legislation it has no intention of executing: “Further, the executive branch may be comfortable accepting legislative terms that might otherwise be unacceptable precisely because it also receives the power to waive them.” The key, from Barron’s perspective, is to unleash the executive branch so it can ignore longstanding statutes. As he writes, “An effective, engaged, and democratically responsive administrative state, on this view, cannot be one that is hemmed in by federal legislative baselines enacted decades ago.”

Evaluating Big Waiver within the context of modern non-delegation doctrine, Barron says that judges “should defer to Congress’s judgment as to when the technique is ‘necessary and proper’ in all but very extreme cases,” says that the question of whether an agency has waiver power should be decided “without deference to the agency’s judgment,” but then also says that the precise range of the agency’s waiver power and the conditions to be placed on it should receive “substantial deference.” There’s more than a little wiggle room in these definitions, and one cannot help but suspect that this is designed to give latitude to “progressive constitutionalists” who might judicially review the waivers.

There’s no question that Congress should repeal many of the laws it has passed. But the central question that ought to concern us with Barron’s endorsement of Big Waiver is not whether Congress is, as Barron says, “stuck with a prior legislative judgment it no longer believes is wise.” That is an easy question, at least under the Constitution: Congress can repeal the law. But Barron would have Congress totally abdicate its Constitutional role in the amending and repealing of laws and further asks federal judges to concur in that abdication. In sum, it seems clear that Barron fundamentally misunderstands the role that democratic accountability has to play in this republican democracy.

David J. Barron, Part 4: An Enemy of Federalism and the Private Sphere


In Part 4 of my series about First Circuit nominee David J. Barron (Part 1, Part 2, & Part 3), I will discuss two implications of Barron’s radical left-wing judicial philosophy. (For those who haven’t yet read my previous posts, Barron’s nomination is currently held up because an unlikely left-right coalition, now including the New York Times, demanded the release of his OLC opinion blessing the use of drone strikes against American terrorists overseas.) As I previously noted, Barron’s chief concern with constitutional law seems to be not the faithful exposition of existing laws, such as the Constitution and federal statutes, but the creation of a “progressive constitutionalism” that will use the federal courts to advance “progressive” political goals.

This post focuses on two areas in which this “progressive constitutionalism” might take shape, namely, federalism and the public and private spheres. As we will see, Barron treats federalism as if it were nothing more than a political tool, and treats the existence of a private sphere as something that only exists at sufferance of the government.

1. Federalism

As you know, federalism is the obvious fact that the Constitution divides powers between the states and the national government. Barron’s vision of federalism turns the constitutional balance on its head in an effort to achieve progressive policy goals by giving states more authority to enact stringent regulations of commerce and by giving the federal government more power in the social sphere, presumably to liberalize abortion and marriage laws.

Americans have always debated what the proper allocation of powers should be, but it is unquestionable that under the Constitution, the national government’s powers are (as James Madison put it in Federalist No. 45) “few and defined” and that the state governments’ powers are “numerous and indefinite.” The Tenth Amendment makes these assumptions explicit, stating “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” (emphasis added).

But in an essay published in William Lasser’s Perspectives on American Politics, Barron discounts the notion that federalism might constrain the federal government’s power in ways that progressives don’t like:

The notion that there might be some federalism-based limits on national power, after all, is not senseless. But there is precious little in the Constitution’s text or the history of its adoption that compels the particular conservative allocation of national and local powers favored by the Rehnquist Court.

Barron’s argument is intended to undermine the idea that the Constitution’s text and structure require the Rehnquist Court’s belated rediscovery of federalism-based limits on national power, thus elevating his own non-textual, “progressive” ideas about the Constitution to the same level. As he explicitly urges progressives in an article published in the Fordham Law Review, “[A]ny Justice who has anything like a substantive constitutional vision should also be expected to have some such conception of the proper vertical allocation of powers and one that will promote rather than undermine that vision.” By “substantive constitutional vision,” Barron is referring to the “progressive constitutionalism” that I discussed in Part 2.

But it is amazing that Barron can only find “precious little” certainty about the Constitution’s division of powers.  The text is clear enough; the enumerated federal powers and the reservation of powers to the states and citizens should make the constitutional vision clear. And the history goes into even greater depth. 

For example, and contrary to what Barron suggests, federal pre-emption of state and local economic regulations is not some sort of arbitrary “conservative” move by the courts. For one thing, the Supremacy Clause ensures that laws passed under Congress’s enumerated powers cannot be sabotaged by any individual state. This was one problem with the Articles of Confederation that the Constitution would solve. As Alexander Hamilton pointed out in Federalist No. 22:

The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy [referring to the Articles of Confederation]. 

There are other examples. Hamilton emphasized in Federalist No. 11 that vesting interstate commercial regulation within the exclusive power of the federal government would benefit the whole nation by encouraging foreign trade.

I’m no fan of the Supreme Court’s Commerce Clause jurisprudence as a whole, but there’s no denying that in the early days of the Republic, Hamilton won this point by securing ratification of the Constitution with both the Commerce and Necessary and Proper Clauses. There is no clause giving Congress a power of “social regulation,” so Barron’s proposal to expand federal power in that sphere seems to rest completely on wishful thinking.

If Barron’s objection seems odd to you, remember that Barron’s entire enterprise is designed to encourage liberals to be less bashful about using constitutional law as a tool of their politics. For him to defeat the claims of originalism, Barron has to pretend that originalist constitutional analysis is nothing more than a “conservative” version of the sort of legal agenda he is creating for progressives, even though he often (in this essay and in other works) expresses consternation that originalist legal analysis doesn’t always lead to “conservative” results. That’s why later in his essay, Barron can cast a vision of economic and social powers that reverses the allocation actually stated in the text of the Constitution and still say, without evident embarrassment, that his vision “has a constitutional pedigree that is at least as legitimate as the conservative one it would displace.”

While Barron doesn’t make clear what he means by “constitutional pedigree” (perhaps Progressive Era or Warren Court judicial precedent?), his vision is so atextual and ahistorical that it can only be attributed to his “progressive” political views.  Even the progressive results he seeks would not be achieved in a particularly principled manner.  His arguments seem not to rest on why a different allocation of powers would be good as a general matter, but rather on which allocation would lead to his favored results in today’s political climate.  While he may currently find the federal government’s regulation of commerce too lax and states’ regulation of social matters too strict, there is nothing preventing him from reversing his vision as the political winds change.

When a man has built his career around telling progressives how to use constitutional law to accomplish their policy goals ascends the federal bench, we should not expect him to stop just because he puts on a robe.

2. Public and Private Spheres

In his zeal to contradict everything “conservative” about the Supreme Court’s jurisprudence, Barron has made clear that he doesn’t believe that there is any realm of life that is truly “private” and considers it something of an oddity that the Supreme Court would recognize the existence of a “free world” where government is absent. His essay entitled “Privatizing the Constitution: State Action and Beyond” criticizes theoretical boundaries on the modern “state action” doctrine as articulated by the late Justice Rehnquist, which generally says that the Constitution only limits the conduct of the government, not that of private actors.

Barron’s essay is especially critical of Rehnquist’s idea that the state is absent from certain sorts of transactions and situations. Barron dismissively describes Rehnquist’s view as articulating a world in which there is “either coercion or freedom.” In Barron’s view, the state is involved simply by noninvolvement; acts and omissions are equally representative of policy choices by the state. In this scheme, private action takes place “at the state’s sufferance.” To Barron, the idea that child abuse from a parent is not a Due Process Clause violation (as Rehnquist wrote in the heartbreaking case of DeShaney v. Winnebago County) was an example of “privatizing.” He also criticizes Rehnquist’s majority opinion in United States v. Morrison, which showed that the federal government did not have power under the Commerce Clause or the Fourteenth Amendment to create a federal civil rights claim for personal gender-based violence.

As before, Barron’s thoroughgoing commitment to judging as concealed policymaking is on full display. Barron asks why Rehnquist thinks the private/public distinction is “attractive,” as if deciding cases is some sort of beauty contest. Barron also accuses Rehnquist of “avert[ing] his eyes” from state involvement in DeShaney. Barron is so enmeshed in the law-as-policymaking paradigm that he considers it noteworthy and significant that Rehnquist could consider “the ‘free world’ as a mandatory fact the government must respect, rather than an option government may choose to recognize.”

Is it really possible that the President’s nominee believes that “free world” exists only at the sufferance of the government? Chilling.

This Day in Liberal Judicial Activism—May 12


2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.


This Day in Liberal Judicial Activism—May 11


2014—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See here for relevant excerpts from the report.)

This Day in Liberal Judicial Activism—May 10


2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.”  After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit rebel Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

Town of Greece Decision Brings Needed Common Sense to Establishment Clause . . . and to New York City


The U.S. Supreme Court’s decision in the Town of Greece v. Galloway prayer case brings a common-sense balance to the understanding of the Establishment Clause, an area of law fraught with fevered and excessive applications.

This week, Alliance Defending Freedom, which litigated the Town of Greece case, asked the en banc U.S. Court of Appeals for the Second Circuit to use that decision to reverse a recent 2–1 panel decision in another important case that ADF is litigating. That decision upheld New York City’s exclusion of religious worship services from a policy allowing local groups to rent vacant public schools for any activity “pertaining to the welfare of the community.”

ADF represents a small evangelical church, Bronx Household of Faith, which has been challenging this policy that has kept the congregation’s worship services out of nearby schools since 1995.  In early April, the Second Circuit ruled that the New York City Department of Education’s concern about a possible violation of the Establishment Clause allows it to violate the First Amendment rights of religious groups by excluding their worship services. The Town of Greece decision rejects that overly Establishment Clause-centric view of religious liberty and freedom of speech.

ADF submitted a letter Tuesday to the Second Circuit pointing out three ways the Town of Greece decision rejects the panel’s extreme view of the Establishment Clause in its Bronx Household of Faith decision.  The Supreme Court said that, “so long as the town maintains a policy of nondiscrimination” among religions, it does not violate the Establishment Clause. Certainly, New York City does not violate the Establishment Clause when it opens the doors of its empty school buildings to community groups to use on a first-come, first-served basis. This is government accommodation of religion, which is not government endorsement of religion.

Second, the Supreme Court said that “the Establishment Clause must be interpreted by reference to historical practices and understandings” and then referred to the fact that the House of Representatives created an office of the chaplain to lead prayers for that body within days of approving the text of the Establishment Clause. Similarly, history informs the Bronx Household of Faith situation. Congress allowed churches to conduct worship services in the U.S. Capitol for about 70 years, from about 1800 until after the Civil War. While president, Thomas Jefferson attended weekly worship services at the House of Representatives.

In Town of Greece, the Supreme Court wrote that the Establishment Clause prohibits the government from excessively entangling itself with religion when it “seek[s] to define permissible categories of religious speech” by dissecting prayers in order to determine which are too “sectarian” and which are acceptable. Similarly in Bronx Household of Faith, New York City school district officials were deciding whether a religious meeting was a forbidden “worship service” or an acceptable religious meeting. Such determinations are not the business of the government.

Right now, churches and other religious congregations are still meeting in the schools because the Second Circuit has not yet allowed the panel decision to go into effect, which means the lower-court order finding the policy unconstitutional remains in effect for now. If the Second Circuit votes to reject our petition for re-hearing, ADF will likely appeal the case to the U.S. Supreme Court.

The Supreme Court’s decision in Town of Greece brings a more balanced approach to the Establishment Clause doctrine. It refutes the extreme notion pushed by separationist groups that, in essence, the Establishment Clause requires the government to go on a “search and destroy” mission to obliterate religious expression from public life, no matter what the context, and no matter whether the religious expression is state-sponsored or initiated by private speakers.

Town of Greece shows that New York City is wrong to think that Establishment Clause “concerns” require this policy banning worship services. The government does not show “neutrality” towards religion by treating religious groups and their expression worse than everyone else.

 Jordan Lorence is senior counsel with Alliance Defending Freedom, which represents Bronx Household of Faith in its lawsuit at the U.S. Court of Appeals for the 2nd Circuit. ADF also represented the town of Greece in its case at the U.S. Supreme Court.

David J. Barron, Part 3: In Which I Praise Barron


In my last two posts about Professor David J. Barron (Part 1 and Part 2), I made clear that Barron’s confirmation to the U.S. Court of Appeals for the First Circuit should be opposed in large part because of his views about the Constitution, the law, and the purpose of judges.

In this post, however, I want to point out one incident that actually weighs in favor of Barron’s personal integrity, if not his judicial philosophy. As you may know, Barron was acting head of the Department of Justice’s Office of Legal Counsel (OLC) from 2009–10. In that capacity, he was responsible for advising the president about the meaning of the Constitution and federal law. Historically, OLC has been responsible for interpreting the law in a nonpolitical way that maintains continuity between administrations.

In 2009, according to a Washington Post op-ed by my Bench Memos colleague Ed Whelan, Barron signed an OLC opinion instructing Attorney General Eric Holder that a pending bill to give the District of Columbia a voting right in the House of Representatives was unconstitutional. As Whelan notes, that view has been the opinion of every Department of Justice as far back as 1963, regardless of the party holding the presidency.

Attorney General Holder and President Obama, however, supported the bill for political reasons. Attorney General Holder therefore overrode OLC’s opinion. Instead of pointing out an error in Barron’s OLC opinion or issuing his own contradictory analysis, Holder asked Acting Solicitor General Neal Katyal whether the D.C. voting bill could be defended in court, which is a far less strict inquiry. Holder didn’t ask whether the bill was actually constitutional, just whether it could be defended. (Hypocrisy alert: Holder had no such interest in defending the Defense of Marriage Act, a federal statute passed by lopsided bipartisan majorities in Congress and signed into law by a Democrat.) Holder then declared the D.C. voting bill constitutional.

Without knowing the details of Barron’s opinion, we can’t really know whether he was simply representing his client, DOJ, or whether the DOJ opinion was actually his personal view. It’s certainly unusual, though, for such a politically motivated lawyer to stand up to President Obama on an issue as important to Democrats as D.C. voting rights. He must have known that the memo would subject him to frivolous accusations that he endorsed the disenfranchisement of voters. And for that he should be congratulated. 

A Reply to Tepp -- There Was Nothing “Conservative” about Eldred Decision


I will leave the debate about what constitutes “conservative” copyright reform to others, as that’s not my area of expertise. There is one claim in Stephen Tepp’s recent article, “Assailing Copyright Isn’t Conservative,” however, that merits a response.

In his article, Tepp claims that the Supreme Court’s Eldred v. Ashcroft is a “conservative” decision because in this case “the conservative justices overwhelmingly sided with private property.”  Lest anyone be confused, what happened in this case is that the Court agreed to recognize a congressional grant of private property, and in the process made a mockery of the constitutional text.  

Contrary to Justice Ginsburg’s suggestion in Eldred, the copyright clause of the Constitution does not give Congress an unfettered right to grant copyrights or other forms of intellectual property.  Rather, the clause only grants Congress the power “to promote the progress of science and the useful arts.”  The power to grant copyrights — specifically the power to “secur[e] for limited time to authors and inventors the exclusive right to their respective writings and discoveries” — only exists insofar as it serves the constitutionally enumerated end, and the retrospective extension of copyrights in pre-existing works does not serve that end.  Extending the copyright term for a work that has already been created or, worse, restoring copyright to items that have already entered the public domain, does not “promote progress” as it does nothing to encourage the creation of new works — the sole end Congress may use its copyright power to pursue.  It’s true that the conservative justices joined Justice Ginsburg’s opinion, but that’s not because her opinion embraced conservative principle or properly applied the clear constitutional text.  If one wants to read a constitutional conservative take on the constitutional question, I ‘d ignore what the Supreme Court said in Eldred and instead look at Judge Sentelle’s dissent below in the U.S. Court of Appeals for the D.C. Circuit.  

David J. Barron, Part 2: ‘Progressive Constitutionalism’


This is the second in my series of posts about the judicial philosophy of David J. Barron, President Obama’s judicial nominee to the First Circuit Court of Appeals. As I noted in Part 1, Barron has left us ample information about his judicial philosophy through his academic publications. If confirmed, Barron would seek to use the federal judiciary as a weapon in pursuit of what he calls “progressive constitutionalism.”

In a 2006 piece for the liberal Harvard Law and Policy Review, Barron laid out his vision of “progressive constitutionalism” in an article entitled “What’s Wrong With Conservative Constitutionalism? Two Styles of Progressive Constitutional Critique and the Choice They Present.” Though it’s now long-gone from the HLPR website, you can still read it yourself here. Progressive constitutionalism, so far as I can make out, appears to be a less modest version of what earlier generations of academics called “living constitutionalism.” Although the “progressive” variant uses similar language to living constitutionalism, describing the Constitution as “a dynamic document” and caricaturing originalism as a “frozen” Constitution, it is more strident, less deferential to democratic processes, and more explicit about its willingness to use the Constitution instrumentally.

The article contrasts two strains of left-wing academic thinking about the constitution. One of these strains, according to Barron, focuses on using democratic mechanisms to enact desirable laws and take executive action as a means of “giving life” to the Constitution. In Barron’s view, this strain is “anti-Court” because it seeks to use Congress and the Presidency to advance left-wing policy positions while urging the courts to “get out of the way.” The other strain, which Barron clearly favors, seeks to “take the substantive claims of conservative constitutionalism seriously and to challenge them in ways that will not thereby justify broad judicial deference to political actors.” In other words, Barron wants judges to counter what he describes as “conservative constitutionalism” and “conservative judicial activism” with a vision of the Constitution that does not require courts to defer to democratically-selected policymakers.

One of the ways that courts can do this, Barron suggests, is by pre-empting public opinion. For instance, he lauds the Massachusetts Supreme Judicial Court:

Such protections [same-sex civil unions and adoption rights], rooted in state constitutional interpretation, have generally held up against political efforts to overturn them, but there is little doubt that state legislatures would not have responded as quickly without judicial intervention. It was courts acting in advance of political will that made the difference.  [emphasis added]

In case there were any doubt that Barron thinks courts should have primacy, he hails state supreme courts (such as New Jersey’s) for overriding state legislatures:

State supreme courts, not state legislatures, have also led the revolution in school financing equality, though judicial actions have catalyzed political responses. Thus, the progressive Anti-Court critique that targets so vigorously the federal Supreme Court’s activism only feeds the conservative mantra that courts in general are overstepping their bounds in issuing rights-protecting decisions. Yet progressive constitutionalists enamored of the Anti-Court rhetoric rarely take account of its potential downstream effects on state-court interpretation and legitimacy.

The last sentence of that quote is chilling: Barron is worried that by asking federal courts to behave in a “conservative” way, state courts might become bashful about “leading the revolution” in progressive policy. In Barron’s vision, judges rule and must be free from any influences that might sway them from their heady task.

Barron also makes clear that the desired “progressive constitutionalism” is not derived from legal texts such as the Constitution, its amendments, or the laws created by Congress. No, this “progressive constitutionalism” is something to be engineered for political ends. He writes:

I want to emphasize, once again, that I do not mean to suggest that the reason the Anti-Court progressive constitutionalists — including Post and Siegel in this piece — wish to shift the forum from courts to legislatures or popular decision making is simply in order to generate more progressive outcomes. Sometimes, of course, this seems to be the point the Anti-Courtists wish to make. But that is not always clear. They may wish only (or primarily) to generate popular constitutional control. If that is the case, however, then it becomes harder to see their position as being one that sounds in progressive constitutionalism, unless progressive constitutionalism is to be equated with a defense of popular constitutionalism independent of the substantive outcomes it would generate. [emphasis added]

In other words, what makes a “progressive constitutionalism” important is that it achieve progressive “outcomes.” One might consider Barron’s ideal federal judge to be a life-tenured philosopher-king, handing down “substantive outcomes” from Mount Olympus.

Barron also thinks that a constitutional theory should be chosen based on what is popular, not whether it is true. He writes:

Superficially, of course, it may seem that the Anti-Court style of critique is deadly accurate, if only because the rhetoric that it relies upon in critiquing contemporary conservative constitutionalism seems to have real public appeal, something that cannot be said for some other progressive constitutional rhetorical traditions. But I am doubtful that this Anti-Court rhetoric will remain powerful over time. There is a sense, at present, that turnabout is fair play.

Read that again: the acceptability of the opposing view is based on whether it “will remain powerful over time,” not whether it is “accurate.” Again, chilling.

If Barron’s view of the courts seems radical to you, you’re not alone. Two of the left-wing academics discussed in Barron’s article, Robert Post and Reva Siegel, called Barron out for being a judicial supremacist:

These matters need to be carefully and contextually studied. Insisting on separating law from politics in order to preserve the purity of the law’s substantive commitments will do no good if it causes us to ignore the sources of the law’s actual legitimacy. Only in legal process textbooks is law about contentious matters wholly independent of politics. This is not simply a regrettable reality; it is a democratic good. Democracies require the rule of law — as well the kind of dialogue among courts, the political branches, and the voting public that makes the rule of law responsive to the community. No progressive would want to live in a state where the authority of “We the People” refers only to the professional opinion of judges.

Barron responded that Post and Siegel failed to see that the biggest danger to the progressive agenda is not posed by judicial supremacy, but rather by popular opinion.

These excerpts make clear that Barron favors using the federal courts as a platform to advance a “progressive constitutionalism” that will achieve the desired policy results. His view doesn’t really deserve to be called “constitutionalism” at all, since it is derived from philosophical premises and political commitments that are entirely alien to the Constitution. In this respect, Barron’s judicial philosophy is not only radical, but inconsistent with the entire American legal tradition.

David J. Barron: Part 1

This Day in Liberal Judicial Activism—May 8


2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.”

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)   

David J. Barron, Part 1: Unabashedly Radical


With reelection and the exercise of the nuclear option behind him, President Obama has now nominated David J. Barron, to the U.S. Court of Appeals for the First Circuit.

This is the first of what will be several posts describing David J. Barron’s views of the law, the Constitution, and what Barron would be like as a federal judge. For a judicial nominee, Barron’s record is unusually rich, revealing his views of the law, the Constitution, and his judicial philosophy.

Barron was a judicial clerk for Judge Stephen R. Reinhardt, one of the most liberal judges on the uber-liberal Ninth Circuit, and for Justice John Paul Stevens. He worked as an Attorney-Advisor in the Department of Justice’s Office of Legal Counsel (OLC) during the Clinton years and after that obtained a faculty position at Harvard Law School, where he is now a tenured professor. In 2009, after President Obama was elected, Barron rejoined OLC as Acting Assistant Attorney General and left in 2010.

Barron’s nomination is especially notable because of the strange-bedfellows coalition opposing it, at least for now. Code Pink, Republican Senator Rand Paul, the ACLU, and Democratic Senators Ron Wyden and Mark Udall have joined together to prevent a confirmation vote. Democratic Senators Mark Begich and Mary Landrieu are “unsure” whether they will vote for Mr. Barron’s nomination. The bipartisan opposition is refusing to proceed until they receive memos drafted or approved by Barron during his time at OLC that relate to OLC’s approval of an overseas drone strike against American citizen and terrorist Anwar al-Awlaki. OLC has refused to release the full memos thus far, preventing resolution of the conflict. (Ironically, Barron signed off on a list of proposed guidelines demanding the “timely” release of OLC memos back when George W. Bush was president.)

But there’s much more worrying information about Mr. Barron than his mere partisan inconsistency. In short, Barron is a judicial supremacist who wants to use the federal judiciary as a weapon to advance his hard-left political vision. Stay tuned.

Federalist Society Conference and ‘Disparate Impact’


I just got back from attending the panel discussion on “disparate impact” civil-rights actions at the Federalist Society’s conference today on executive-branch overreach – and through the magic of the Internet you too can watch it, here.

The panel, which was moderated by New York Times Supreme Court correspondent Adam Liptak, included the two conservative members of the U.S. Commission on Civil Rights, Gail Heriot and Pete Kirsanow; also on the panel (and from the other side of the aisle) was law professor Ted Shaw, who has just accepted a position at UNC–Chapel Hill.

The whole panel was interesting, but I especially enjoyed the discussion that ensued after Mr. Liptak posed to the panel the problem of getting any disparate-impact cases resolved by the Supreme Court, in light of the Left’s strenuous efforts to “disappear” them.  That discussion starts at about the 42-minute mark (with a follow-up question by me at about the 49-minute mark).

Federalist Society Executive Branch Review Today


As you may know, today is the day for the Federalist Society’s Executive Branch Review Conference, which is currently being live-streamed here. If you would like to find out the schedule for the conference (and find links to particular panel webcasts), the event page is here.  

ABA Nominee Ratings: May Their Days Be Numbered


A perennial feature of judicial nominations is the obligatory rating by the American Bar Association. Just as perennially, the ABA’s ratings are so obviously politically biased that they make Pravda look like the Washington Post. The classic example was when the ABA gave Frank H. Easterbrook and Richard A. Posner the “Qualified/Not Qualified” rating, its lowest at the time, despite the nominees’ ample professional qualifications, reams of academic publications, and undisputable intellectual acumen. (As predicted, these two little-known judges receded into perpetual obscurity after confirmation to the Seventh Circuit.)

The ABA’s ratings are biased in other ways, too. The New York Times recently reported on a study showing that the ABA rates minorities and women much lower than similarly-qualified white candidates, and that candidates with low ABA ratings (i.e., “not qualified”) were no more likely to be reversed than their higher-rated peers. Similarly, John Lott found that after controlling for education and professional achievements, the ABA rated Hispanics on average one level lower than whites.

There are many problems with the idea that one can rate the quality of a judge based on reversal rates or any other apparently neutral criterion. Judicial philosophy is the most important qualification for a judge, but philosophy can’t be easily quantified. The author of the study cited by the Times proposes that the ABA system should be based on “clear and verifiable” criteria, but there’s no reason to think that such criteria would be particularly revealing or neutral about a judge’s philosophy.

Nevertheless, there appear to be the seeds of consensus on both right and left that the ABA’s contribution to judicial confirmations is pernicious. If the New York Times article is any indication, maybe we can find some common ground in simply ignoring the ABA’s evaluations from now on.

Speech Coding


As I’ve made clear before, I’m very skeptical that political scientists can generate anything of value by coding the votes of Supreme Court justices in particular cases and spewing out statistics. A new study, reported in Adam Liptak’s column in yesterday’s New York Times, reinforces my skepticism.

The study, led by law professor Lee Epstein, undertakes to explore “in-group bias” on free-speech claims by compiling data on whether a justice is more supportive of a free-speech claim when the speaker shares the justice’s perceived ideology. Liptak highlights one supposed finding—that Justice Scalia “voted in favor of conservative speakers 65 percent of the time and liberal ones [only] 21 percent.”

As I see it, there are at least two basic flaws in the study:

First, as law professor Erwin Chemerinsky suggests near the end of the article—when he says that “the Roberts court is very pro-speech except when the institutional interests of the government are at issue”—there may be factors other than speaker-favoritism or speaker-hostility in a large category of the cases, and those factors may have a very large disparate impact one way or the other in those cases.

Epstein’s seeming blindness to this possibility is reflected in the cases she uses to frame her inquiry:

[W]e posit that Supreme Court Justices are opportunistic supporters of the First Amendment. On this account, conservative Justices are more inclined to sympathize with a pro-life advocate’s complaint about restrictions near abortion clinics than a student’s claim of First Amendment protection to raise a ‘Bong Hits 4 Jesus’ banner (and liberal Justices, the reverse).

When I first read this, my immediate reaction was: How strange to seem to put on the same level the First Amendment claim of a citizen in public and the right of a high-school student taking part in a school-supervised event.

Second, Epstein’s measure of whether a justice has a statistically significant gap between votes for conservative speakers and votes for liberal speakers presupposes that the neutral justice would vote equally for the two sets of speakers. But that presupposition ignores the possibility that the claims of liberal speakers might disproportionately arise in less meritorious cases (sleeping as speech, anyone?) than those of conservative speakers. (Or vice versa, of course.)

It’s conceivable, for example, that there are many more appellate rulings by two or three liberal judges who are hostile to conservative speech claims (or to the realms—e.g., religion, abortion—in which they often arise) than there are by conservative judges who are hostile to liberal speech claims. If that’s the case, the ideal justice would end up voting more for conservative speakers. (Various other factors could also produce an imbalance.) 

In short, while Epstein can compare the vote pattern of one justice to another, she has no basis for saying that one justice’s gap between votes for conservative speakers and votes for liberal speakers is “statistically significant” and that another justice’s gap (or lack of gap) isn’t, as she has no idea what the proper gap should be.

One other observation: When a justice embraces a principle in a case involving a speaker of one ideology, the justice is committing to apply that principle in cases involving speakers of other ideologies. Further, when a Court majority embraces such a principle, it is obligating lower courts to apply that principle to all speakers. Any good justice recognizes this, of course, and will test the proposed principle against his political biases in order to make sure that it is sound. So unless there is something about the principle that makes it more likely to be invoked by speakers of one ideology, or unless there is no discernible principle set forth, I don’t see why a justice would be tempted to decide a case based on the ideology of the particular litigant.

Bradley Prize for Randy Barnett


Hearty congratulations to Georgetown law professor Randy Barnett, who has just been named a recipient of one of the four 2014 Bradley Prizes for outstanding achievement. Here’s an excerpt from the press release (which I haven’t been able to find online):

“Randy Barnett’s vigorous and fearless advocacy of the Constitution is essential to preserving freedom,” said Michael W. Grebe, President and CEO of the Bradley Foundation.  “As a professor and an attorney, Randy Barnett is a key defender of the rule of law.”

Supreme Court Dodges Case Addressing Carrying Guns Outside the Home


As I reported here, here, and here, federal appellate courts have been inconsistent on the matter of carrying firearms outside the home. Most states issue a firearms carry permit to any law-abiding applicants who have cleared the background check and passed the gun-range safety course, while some jurisdictions pick and choose who may enjoy their Second Amendment rights. New Jersey, being especially hostile to the Constitution, asserts the state can impose citizens prove a “justifiable need” before being allowed to carry a handgun, going so far as to deny carry permits to some off-duty police officers.

Enter Drake v. Jerejian, a case that has been making its way to Supreme Court review. Observers were pessimistic this case would be granted certiorari from the U.S. Supreme Court, but important developments out of the U.S. Court of Appeals for the Ninth Circuit that changed the landscape offered some hope. In February, the Ninth Circuit ruled that jurisdictions could refuse to establish a “shall issue” open-carry policy or a “shall issue” conceal-carry policy, but not both, in Peruta v. County of San Diego. This was followed a few weeks later by a separate Ninth Circuit ruling,  in Baker v. Kealoha, which essentially made the notoriously anti–Second Amendment state of Hawaii a “shall issue” state.

This forced a circuit split in a way that U.S. v. Masciandro out of the Fourth Circuit and Moore v. Madigan out of the Seventh Circuit did not, and offered the best opportunity to see if the promise of D.C. v. Heller to restore the Second Amendment rights of citizens is able to deliver.

Sadly, the court just denied certiorari in the Drake case despite the conflicting circuit opinions on carrying a firearm outside the home. I will keep Bench Memos readers up to date on developments on other Second Amendment cases as the make their way through the courts. 

Ruling in Town of Greece


By a vote of 5-4, the Supreme Court has ruled that the town of Greece, New York, has not violated the Establishment Clause by opening its monthly board meeting with a prayer. 

Here’s a very quick summary (which, of course, is no substitute for reading the opinions):

Justice Kennedy’s lead opinion is in part a majority opinion: Joined by the Chief Justice, Scalia, Thomas, and Alito, Kennedy inquires whether the town of Greece’s prayer practice “fits within the tradition long followed in Congress and the state legislatures.” He rejects the claim that legislative prayer must be “nonsectarian or ecumenical.” (Slip op. at 9-17.) He also rejects the claim that the town violated the Establishment Clause “by inviting a predominantly Christian set of ministers to lead the prayer”; rather than try to achieve “religious balancing”—which could present entanglement problems—the town satisfies the Establishment Clause by “maintain[ing] a policy of nondiscrimination.” (Slip op. at 17-18.)

Joined only by the Chief and Alito, Kennedy further concludes that the town’s practice does not coerce participation by non-adherents. (Slip op. at 18-23.) Thomas, joined by Scalia, applies a different test to find no coercion. (The divide between Kennedy and Thomas on coercion reflects the divide between Kennedy and Scalia in the 1992 case of Lee v. Weisman.)

The principal dissent (25 pages) is by Justice Kagan. (Breyer, who joins Kagan’s dissent, also writes his own short dissent.) Kagan states that she agrees with the Court’s 1983 legislative-prayer decision in Marsh v. Chambers, but that she believes that the town of Greece’s practices fall outside the scope of that ruling for several reasons: the town’s meetings “involve participation by ordinary citizens”; “the invocations given—directly to those citizens—were predominantly sectarian in content”; and the town board “did nothing to recognize religious diversity.”

Justice Alito, in a separate concurrence joined by Scalia, responds directly to Kagan’s dissent. He argues (powerfully, I think) that, on the one hand, her dissent “is really quite niggling” as it “would demand no more than a small modification” in the town’s procedures, but that, on the other hand, the “logical thrust of many of [Kagan’s] arguments is that prayer is never permissible prior to meetings of local government legislative bodies.”  


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