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NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—May 10



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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



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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.

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



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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



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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’



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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

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This Day in Liberal Judicial Activism—May 8



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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



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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’



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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



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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



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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



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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



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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



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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



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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.”  

Federalist Society Conference on Executive Branch Review



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A reminder: This Wednesday, May 7, the Federalist Society will be holding its second annual Executive Branch Review conference in D.C. The conference schedule is packed with interesting panels and speakers—including a lunchtime panel on “Executive Power and the Role of the Coordinate Branches”—and closes with a keynote address by Senator Ted Cruz.

Attendance is free, and CLE credits are also available (for a $50 charge). So sign up now if you’re interested.

This Day in Liberal Judicial Activism—May 5



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1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.  

This Day in Liberal Judicial Activism—May 4



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1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez).

Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name.

Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights: defendant may well have believed that by using a false name he was not committing himself to anything.”

In a remarkable display of chutzpah, Sarokin immediately follows this assertion with a “But see” citation to specific and contrary Third Circuit authority that he himself describes as standing for the proposition that “contention that signature was not one’s own is not relevant to the issue of the voluntariness of the confession.” A more blatant defiance of controlling authority of a higher court is difficult to imagine. 

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

This Day in Liberal Judicial Activism—May 3



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1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.

In an especially bizarre twist, Sarokin rules that his order constitutes an unconstitutional taking of the seniority rights of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for the taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin changes his tone and attacks the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.” 

EPA v. EME Homer City: Sign of Things To Come in the Greenhouse Gas Cases?



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This past Tuesday, the Supreme Court released its opinion in EPA v. EME Homer City Generation, L.P., a lawsuit challenging EPA’s regulation covering emissions that drift between states. The central statutory question was whether the EPA is allowed to consider the costs of reducing emissions when drafting rules governing the amount of emissions that can flow to other states. With Justice Alito recused, the Court issued a 6-2 opinion, with Scalia and Thomas as the only dissenters. This alignment of the justices is unusual, with Chief Justice Roberts and Justice Kennedy joining the majority. There’s a lot to say about this case – the D.C. Circuit panel’s opinion alone was 104 pages long – but one statutory interpretation issue may hint at how the Justices are thinking about another set of EPA cases heard earlier this term, Utility Air Regulatory Group et al. v. EPA, also known as the greenhouse gas cases. In short, by joining the majority in this case, the Chief and Justice Kennedy gave up any principled basis for opposing EPA’s lawlessness in the greenhouse gas cases.

First, a bit of background about the structure of the Clean Air Act (CAA). The CAA incorporates states into the federal environmental regulation scheme through a process sometimes described as “cooperative federalism.” Each state is required to create a State Implementation Plan (or SIP) explaining how the state will achieve certain emissions standards set out by Congress in the CAA, then submits the SIP to the federal government for approval. The SIP is ultimately enforceable by the federal government, but if the federal government considers the SIP inadequate, it can impose its own Federal Implementation Plan (FIP).

Each state SIP must take account of the spillover effects on other states, such as when an upwind state causes additional downwind effects to another state. Specifically, the state must adequately take account of situations where they will cap emissions “in amounts which will—(I) contribute significantly to” other States’ ability to comply (42 U.S.C. § 7410(a)(2)(D)(i)). EPA issued a rule interpreting the term “significant” to include not only “amounts” of pollutants emitted by certain upwind sources, but also the costs of mitigation by each state. This effectively gave EPA the ability to create an individualized emissions “budget” for each upwind state based on its own statistical models that would kick in whenever the EPA thought the state SIP was inadequate. Then, in the same rule that imposed the cost-based evaluations in 2011, EPA issued its own FIP, giving the states no time to revise their SIPs. After that high-handed move, state and local governments joined with industry and labor groups to challenge the environmental regulations.

The majority opinion, written by Justice Ginsburg, upholds the rule as a reasonable interpretation of a statutory ambiguity under the Chevron doctrine. Justice Scalia’s dissent (joined by Justice Thomas) argues that the statute, although ambiguous about some things, clearly isn’t ambiguous about whether “significant” includes costs of compliance.

The majority construes § 7410(a)(2)(D)(i)(I) to mean that EPA could consider cost in determining what amount of emissions is “significant.” As Justice Scalia points out in his jazzy dissent, though, the majority (like EPA) never really explains where the statute links “significance” of the states’ ability to reach the numeric thresholds with cost-benefit analysis. The statutory grammar describes regulations that have as their object the sources of emissions within the State. But only a subset of these sources are the proper subject of regulation, namely, emissions “in amounts which will” contribute significantly. It’s very clear from the statute that “significantly” modifies the amountof contributed emissions. There’s plenty of wiggle room in “significant” for EPA to conclude that different amounts could be significant, but it’s unambiguous that cost is not mentioned, either explicitly or implicitly.

This brings us to Whitman v. American Trucking Assn’s, Inc., a 2001 case involving the trucking industry’s attempt to convince the Supreme Court that EPA should have made cost-benefit analysis a component of its regulatory analysis. As the court made clear in Whitman, agencies only get their authority through statutes, and when a statute is silent on a source of authority, no such authority has been delegated. Consequently, it’s hard to square Whitman, which construed the statute’s silence as a prohibition, with Justice Ginsburg’s opinion here, which effectively construes the statute’s silence as a grant of power by considering it an ambiguity giving rise to Chevron deference.

As a side note, several in the blogosphere have observed that the original version of Justice Scalia’s dissent (since corrected) erroneously described EPA’s position in Whitman. That’s true, but it doesn’t really affect the substance of his argument (not that you’d know it from the schadenfreude on display). More amusing than this minor error, however, is the fact that EPA has, under two successive Democratic administrations, fought both against and for cost-benefit analysis all the way to the Supreme Court. It would be interesting to know why the switch happened.

In any event, the Court’s decision in EME Homer now casts doubt on Whitman, raising the question of whether EPA will still be prohibited from engaging in cost-benefit analysis without explicit statutory authorization. The majority in this case, which included the Chief Justice and Justice Kennedy, apparently favors broad interpretive latitude for agencies that would allow deference to the agency’s judgment in nontextual considerations. If the Chief Justice didn’t intend to grease the slippery slope to EPA’s limitless position in the greenhouse gas cases, why else would he assign this opinion to Justice Ginsburg? In the greenhouse gas cases, EPA claims that it can rewrite explicit statutory thresholds because enforcing the law as written would be too costly or difficult. If EPA can consider marginal costs of compliance for states, as they did here, why can’t EPA also use broader economic effects of applying statutory thresholds in the greenhouse gas cases to undermine the remainder of Congress’s authority? With the Chief and Justice Kennedy giving up this much ground, what possible limiting principle remains?

Scalia’s Gaffe Was Stevens’s Gaffe



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Per a new post by Jonathan Adler, Justice Stevens, in his 2009 dissent in Entergy Corp. v. Riverkeeper, Inc., made the very same mischaracterization of the EPA position in the 2001 case (Whitman v. American Trucking Ass’n):

In that case [Whitman v. American Trucking], the Court reviewed the EPA’s claim that §109 of the Clean Air Act (CAA) … authorized the Agency to consider implementation costs in setting ambient air quality standards. 

So it seems plausible that Scalia made the mistake of relying on Stevens’s mischaracterization.

That, I emphasize, would be no excuse for the gaffe. Indeed, relying on Stevens for anything would be a serious mistake. But it does render even more ridiculous all the over-the-top frenzy from the Left. 

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