Bench Memos

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NLRB v. Noel Canning: A Reprieve for the Separation of Powers


Today’s decision in NLRB v. Noel Canning was a major loss for the Obama administration, adding to its long list of unanimous losses with the Supreme Court. The case, which I have previously written about here, deals with the constitutionality of President Obama’s appointment of two members to the National Labor Relations Board. Rather than fiddle around with getting Senate approval for his picks, the president purported to use his recess appointment power to bypass the Senate. The problem – pooh-poohed by the president and his backers initially, but endorsed by all nine justices — is that the Senate wasn’t in fact in recess. And the president can’t simply declare that the Senate is in recess when it suits him. The facts of this case are a key example of the aggressive lawlessness that is the hallmark of this administration. So it is a relief to see the Court holding the line on the constitutional limits that keep our government in check.

The majority opinion was written by Justice Breyer for the liberal wing of the court, plus Justice Kennedy. The distinction between the main opinion and Scalia’s concurrence in the judgment for the remaining justices largely turns on a difference in interpretive theories: Should the Court stick with the Constitution’s plain text or should it allow that text to be modified by historical practice and the justices’ view of which outcome best fulfills the Constitution’s broader purposes?

Here’s the text of the recess appointments clause that is causing all the fuss:

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

Breyer’s opinion asks three questions about the meaning of this clause, finding that the president’s appointments at issue pass two, but fail the third. Scalia would have flunked the president across the board.

The first question is what recesses the clause covers. There are inter-session recesses in between formal sessions of Congress and intra-session recesses like those that occur over the summer. But the text seems to expect only one recess, “the Recess of the Senate.” 

Justice Breyer acknowledged the normal assumption that “the” indicates one specific recess, but determined ultimately that it was sufficiently ambiguous to cover both types of recess. Since the Civil War era at least, Congress has taken intra-session recesses of varying lengths and there have been numerous recess appointments during those recesses, which the Senate and the courts have generally not taken issue with. Breyer views those facts along with his generic reading of “the” to support the president’s position of a broad recess-appointment power covering both types of recesses.

By analogy to the Adjournments Clause in the Constitution and by long tradition both parties agreed that the recess-appointments clause doesn’t apply to recesses of three days or less. But the court looked to historical practice to determine that appointments during recesses of three to ten days are presumptively outside the recess-appointments clause because historically very few appointments have been made during such recesses.

Keep reading this post . . .

McCullen v. Coakley: A Victory for Free Speech, Sort Of


Today’s 9–0 decision against Massachusetts in McCullen v. Coakley may not be a resounding victory for the First Amendment, but at least it’s something.

As Ed Whelan has already pointed out in his summary, the Supreme Court voted unanimously to strike down no-speech buffer zones extending 35 feet around Massachusetts abortion clinics. But don’t let the vote fool you: The majority opinion was written by Chief Justice Roberts, who was joined by the Court’s liberals. Justice Scalia wrote a blistering separate opinion concurring in the judgment, joined by Justices Kennedy and Thomas. Justice Alito wrote a separate opinion concurring in the judgment. The crux of these differing opinions is whether the Massachusetts law is truly viewpoint-neutral. The majority said it was; everyone else thought otherwise.

The majority opinion spent much of its time discussing the facts of the case, all of which are flattering to the plaintiffs:

Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as protestors, who express their moral or religious opposition to abortion through signs and chants or, in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a different tack. They attempt to engage women approaching the clinics in what they call “sidewalk counseling,” which involves offering information about alternatives to abortion and help pursuing those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this way: “Good morning, may I give you my literature? Is there anything I can do for you? I’m available if you have any questions.” If the woman seems receptive, McCullen will provide additional information. McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a much more effective means of dissuading women from having abortions than confrontational methods such as shouting or brandishing signs, which in petitioners’ view tend only to antagonize their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded hundreds of women to forgo abortions.

As a result of these buffer zones, McCullen and the others couldn’t speak to the women they are seeking to persuade.

But someone else did get to speak to the women:

The second statutory exemption allows clinic employees and agents acting within the scope of their employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses “escorts” to greet women as they approach the clinic, accompanying them through the zones to the clinic entrance. Petitioners claim that the escorts sometimes thwart petitioners’ attempts to communicate with patients by blocking petitioners from handing literature to patients, telling patients not to “pay any attention” or “listen to” petitioners, and disparaging petitioners as “crazy.”

Public streets and sidewalks are public forums for speech, but can be subjected to time/place/manner speech restrictions. Even then, the restrictions must be content-neutral, narrowly tailored to a significant governmental interest, and leave open alternative channels of communication.

That issue, the viewpoint-neutrality of the law, was the source of the most profound disagreement in this case. The plaintiffs had alleged from the beginning that the buffer zones were not content-neutral, a strong position in light of the law’s structure and history. But because the statute didn’t “draw content-based distinctions on its face,” the majority thought it was neutral, even though it had the “inevitable effect” of squelching speech about abortion.

Indeed, the majority was willing to take the Massachusetts legislature at its word:

[The statute’s] stated purpose is to “increase forthwith public safety at reproductive health care facilities.” Respondents have articulated similar purposes before this Court—namely, “public safety, patient access to healthcare, and the unobstructed use of public sidewalks and roadways.” It is not the case that “[e]very objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.”

Ironically, the majority even used the overbreadth of the statute as an indication that it was not designed for the purpose of disfavoring one type of speech. What did the Chief cite for this proposition? A 1996 article by none other than then-professor Elena Kagan. The Chief used this argument to dispose of yet another example of invidious overbreadth, namely, that the crowd-control problems cited as the reason for imposing this statute on a whole state existed only at a single clinic.

The Chief continued. Only employees of the clinic were allowed to talk within the buffer zone, but no matter: “on the record before” the Court, “[t]here is nothing inherently suspect about providing some kind of exemption” to clinic employees, and then he goes along to cite several types of employees other than clinic escorts who would be covered by the exemption, such as maintenance workers or security guards. But unlike the clinic escorts, speech was not a central part of these employees’ work, so this was pretty weak tea. And for some reason that still doesn’t make sense to me, Chief Justice Roberts thought that whether the clinic authorizes escorts to speak within the buffer zones makes all the difference.

Anyway, the least objectionable portion of the majority opinion is about the overbreadth or “narrow tailoring” question. Along with the Court’s four liberals, the Chief Justice concluded that the statute pushed the plaintiffs too far away from the clinics while not really preventing any legitimate harms. Factually, this seemed to be a strong point for the plaintiffs, since there was uncontradicted testimony that the plaintiffs’ effectiveness in persuading women not to abort dropped substantially after the statute’s restrictions came into play.

In a particularly strong paragraph, the majority considered it insufficient that Mrs. McCullen and the other plaintiffs could shout and yell if they wanted to:

That misses the point. Petitioners are not protestors. They seek not merely to express their opposition to abortion, but to inform women of various alternatives and to provide help in pursuing them. Petitioners believe that they can accomplish this objective only through personal, caring, consensual conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a direct greeting or an outstretched arm. While the record indicates that petitioners have been able to have a number of quiet conversations outside the buffer zones, respondents have not refuted petitioners’ testimony that the conversations have been far less frequent and far less successful since the buffer zones were instituted. It is thus no answer to say that petitioners can still be “seen and heard” by women within the buffer zones. If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.

Based on these problems, the majority concluded, the state should focus on enforcing laws that meet the stated purposes of the statute, i.e., preventing harassment and violence, rather than making up speech restrictions.

Justice Scalia’s separate opinion, although agreeing in the result, unloaded withering criticism on the majority, accusing the Chief of suborning “abortion distortion” and spending several pages of his opinion showing that the regulation was receiving special treatment simply because it involved abortion. The majority’s cursory analysis of the statute’s stated purpose, Justice Scalia said, would allow jurisdictions to squelch antiabortion speech: “With a dart here and a pleat there, such regulations are sure to satisfy the tailoring standards applied in Part IV of the majority’s opinion.” The fact that the statute targeted all abortion clinics in Massachusetts to fix problems at one clinic, Scalia said, was “rather like invoking the eight missed human targets of a shooter who has killed one victim to prove, not that he is guilty of attempted mass murder, but that he has bad aim.” Scalia concluded that the statute was content-based and therefore should have been subject to strict scrutiny, reiterating that Hill v. Colorado (2000) should be overruled.

In a parting salvo, Scalia said the following about narrow tailoring:

Having determined that the Act is content based and does not withstand strict scrutiny, I need not pursue the inquiry conducted in Part IV of the Court’s opinion—whether the statute is “‘narrowly tailored to serve a significant governmental interest[.]’” I suppose I could do so, taking as a given the Court’s erroneous content-neutrality conclusion in Part III; and if I did, I suspect I would agree with the majority that the legislation is not narrowly tailored to advance the interests asserted by respondents. But I prefer not to take part in the assembling of an apparent but specious unanimity. I leave both the plainly unnecessary and erroneous half and the arguably correct half of the Court’s analysis to the majority.

Justice Alito’s separate opinion concurring in the judgment laid out the same trenchant argument he raised at oral argument: an abortion clinic employee and a sidewalk counselor approach a woman near the entrance to the abortion clinic. Inside the buffer zone, the employee can say anything in the scope of her abortion-related employment but the nonemployee cannot, ergo viewpoint discrimination.

This is a disappointing opinion in many ways, but I will tender a few concluding thoughts. First, as Ed Whelan noted earlier, at least the Court upheld free speech and at least it’s 9-0 in favor.

Second, although the majority opinion concluded that the law was content-neutral, the holding on narrow tailoring may prove to be the decision’s silver lining. Hopefully after this decision, states will abandon broad, sweeping criminal statutes like this one and focus on individualized remedies to specific compelling problems.

Third, the biggest question remains: why didn’t the Court write a narrower opinion? The majority didn’t have to write the section about viewpoint-neutrality. That section adds nothing to the ultimate analysis, and seems more like a slap in the face to Scalia and other conservative justices than a productive exercise in doctrinal analysis. The statute didn’t survive the lower level of scrutiny anyway, so there was no need to determine whether the law was viewpoint-neutral. Nor was it necessary for the Chief to write that section to counter the possibility that some of the suggested policy alternatives could have been viewpoint-discriminatory (they hadn’t been briefed or argued). He could have abstained from making recommendations entirely. It would have been truly shocking if the liberals demanded that Roberts discuss that prong in exchange for joining his opinion. So: If the Chief was so interested in consensus or judicial minimalism or whatever, why decide that question at all?


Oddity in McCullen v. Coakley


As you know, the Supreme Court released its decision today in McCullen v. Coakley, the case about buffer zones established under Massachusetts state law. (Ed Whelan’s summary is here.) I’m still digesting the opinion, but one thing in the Chief Justice’s majority opinion jumped out at me on pages 16-17 of the slip opinion. The Chief has just worked through several of the stated reasons for the no-speech buffer zone and the exception for clinic employees who are acting in the “scope of their employment”:

Petitioners did testify in this litigation about instances in which escorts at the Boston clinic had expressed views about abortion to the women they were accompanying, thwarted petitioners’ attempts to speak and hand literature to the women, and disparaged petitioners in various ways. It is unclear from petitioners’ testimony whether these alleged incidents occurred within the buffer zones. There is no viewpoint discrimination problem if the incidents occurred outside the zones because petitioners are equally free to say whatever they would like in that area. Even assuming the incidents occurred inside the zones, the record does not suggest that they involved speech within the scope of the escorts’ employment. If the speech was beyond the scope of their employment, then each of the alleged incidents would violate the Act’s express terms. Petitioners’ complaint would then be that the police were failing to enforce the Act equally against clinic escorts. While such allegations might state a claim of official viewpoint discrimination, that would not go to the validity of the Act. In any event, petitioners nowhere allege selective enforcement.

It would be a very different question if it turned out that a clinic authorized escorts to speak about abortion inside the buffer zones. In that case, the escorts would not seem to be violating the Act because the speech would be within the scope of their employment. The Act’s exemption for clinic employees would then facilitate speech on only one side of the abortion debate—a clear form of viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic. But the record before us contains insufficient evidence to show that the exemption operates in this way at any of the clinics, perhaps because the clinics do not want to doom the Act by allowing their employees to speak about abortion within the buffer zones. [citations omitted]

Now this is truly odd. The Chief says that the plaintiffs’ claim isn’t really about viewpoint discrimination because the plaintiffs haven’t shown that the escorts were acting illegally (i.e., outside the scope of their employment, and therefore subject to the criminal penalties). But it was apparently clear that in these incidents, the escorts were (1) hired by the clinic; (2) working for the clinic; (3) bringing women to the clinic; (4) with the women outside the clinic; (5) disparaging the plaintiffs; and (6) pushing away people who oppose the clinic. The state never prosecuted the escorts, suggesting that the state thought they were acting within the scope of their employment. And yet the Chief thinks there’s no record of evidence that the escorts were speaking within the scope of their employment? That is, to put it mildly, absurd.

In addition, the Chief wanted yet more evidence to show that the escorts were acting legally. But how does the facial validity of a state law turn on whether the clinic escorts were acting legally? As the Chief admits, that’s only relevant to a claim of selective enforcement. It’s incoherent.

McCullen v. Coakley—Part 2


Having summarized the competing positions in today’s ruling in McCullen v. Coakley, I’ll now offer a few quick observations (including on a possible tea leaf bearing on Hobby Lobby):

1. A decision upholding the statute would have been a terrible First Amendment result. So avoiding that result is an important victory. Further, the fact that all nine justices voted to strike down the statute is a somewhat encouraging sign.

2. That said, I’m disappointed by how narrow the majority opinion is. For whatever reason (desire for a unanimous result?), the Chief Justice chose to pursue common ground with the four liberal justices rather than with the four who concurred in the judgment.

I confess that I’m especially baffled by the Chief Justice’s conclusion that the statute’s exemption for clinic employees doesn’t render it viewpoint-discriminatory. The fact that abortion clinics can authorize clinic escorts to speak about abortion in the buffer zones, and to counter the messages that sidewalk counselors can deliver only outside those zones, ought to suffice to show that the statute discriminates on the basis of viewpoint. [Clarification: The Chief says that an abortion clinic’s exercise of that power would render the exemption viewpoint-discriminatory and vulnerable to an as-applied challenge. My point is that I find it strange to have the question whether the exemption is viewpoint-discriminatory hinge on whether an abortion clinic chooses to exercise a power that it has.]

I share Scalia’s concern that the Court continues to apply “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.” I hope that Scalia is right that future cases will establish that the majority “has sub silentio (and perhaps inadvertently) overruled” Hill v. Colorado (2000).

3. As I’ve suggested, in the Hobby Lobby case the Court has available to it a narrow resolution that might garner a supermajority or even unanimity—namely, that the HHS mandate is clearly not the least restrictive means of furthering any compelling interest that might be assumed to exist, and that it thus violates the federal Religious Freedom Restoration Act, because the Obama administration itself has provided nonprofit religious corporations the so-called “accommodation” as a means that is less restrictive of their religious liberty. Contrary to what some commentators seem to suppose, the Court’s reliance on this ground would not require the Court to hold that the accommodation itself satisfies RFRA. Instead, it or the lower courts would presumably resolve that question somewhere down the road in the pending litigation brought by religious nonprofits against the accommodation.

In his majority opinion in McCullen, the Chief Justice, in the course of discussing whether the statute is narrowly tailored, “identif[ies] a number of less-restrictive alternatives that the Massachusetts Legislature might have adopted” while making clear that he is not endorsing the constitutionality of any of those alternatives. (See pp. 11, 23-27 & n.8.) I wonder whether the Chief Justice and some or all of the liberals who joined his opinion in McCullen will use the accommodation to similar effect in Hobby Lobby.

McCullen v. Coakley—Part 1


In today’s ruling in McCullen v. Coakley, all nine justices agree that the Massachusetts statute that creates a general no-speech zone on streets and sidewalks within 35 feet of an abortion clinic violates the First Amendment. But they divide sharply, 5-4, on their reasoning. I’m going to summarize the competing positions here, and in a follow-on post will offer some observations.

Chief Justice Roberts, joined by the Court’s four liberals, wrote the majority opinion. In Part III of his opinion (slip op. at 10-18), the Chief Justice concludes that the statute is content-neutral. First, although it has the inevitable effect of disproportionately restricting abortion-related speech, it can be justified by content-neutral concerns about public safety and patient access.

Second, the statute’s exemption for clinic employees does not render it viewpoint discriminatory because “[t]here is no suggestion in the record that any of the clinics authorize their employees to speak about abortion in the buffer zones.” Yes, there was testimony about clinic escorts “who expressed views about abortion to the women they were accompanying, thwarted [sidewalk counselors’] attempts to speak and hand literature to the women, and disparaged [the sidewalk counselors] in various ways.” But it is “unclear” whether these incidents occurred within the buffer zones. And even if they did, “the record does not suggest that they involved speech within the scope of the escorts’ employment.”

In Part IV of his opinion (pp. 18-29), the Chief determines that the statute is not “narrowly tailored to serve a significant governmental interest.” The buffer zones “burden substantially more speech than necessary to achieve the Commonwealth’s asserted interests.”

Justice Scalia and Justice Alito wrote opinions concurring in the judgment only.

In his opinion (joined by Kennedy and Thomas), Scalia slams the majority for “carr[ying] forward this Court’s practice of giving abortion-rights advocates a pass when it comes to suppressing the free-speech rights of their opponents” and for perpetuating “an entirely separate, abridged edition of the First Amendment applicable to speech against abortion.”

Scalia argues that the Court’s content-neutrality discussion is both unnecessary (pp. 2-4) and wrong (pp. 4-14). As to its wrongness: First, “Every objective indication shows that the provision’s primary purpose is to restrict speech that opposes abortion.” Only one abortion clinic “is known to have been beset by the problems that the statute supposedly addresses.” The buffer zones “add nothing to safety and access” and instead achieve only the suppression of speech opposing abortion. The statute was enacted “as a more easily enforceable substitute” for a law that was clearly directed at the suppression of unwelcome speech and was meant to serve the same interest. (Scalia also argues that the Court should have overruled Hill v. Colorado (2000)—which even liberal law professor Laurence Tribe calls “slam-dunk simple and slam-dunk wrong”—and that it may implicitly, if inadvertently, have done so.)

Second, Scalia argues that the statute is viewpoint discriminatory, as it’s crystal clear that clinic escorts act within the scope of their employment when they speak in favor of abortion and counter the speech of sidewalk counselors.

In his 3-page separate opinion, Alito explains his own view that the statute effects “blatant viewpoint discrimination.” 


Today’s Rulings


The Supreme Court will be issuing rulings today at 10 a.m. (My guess is that the Court will issue rulings in two of the remaining four cases.) I will update this post to provide quick news, and perhaps a comment or two, on the results. (For the initial news, I will be relying on SCOTUSblog’s live blogging.) I will reserve any extended commentary for later posts.


Noel Canning (recess appointments)—Breyer opinion; Obama’s recess appointments unlawful. Narrow ruling: There was no recess. Scalia (joined by Chief, Thomas, Alito) concurred in judgment, on much broader grounds. Opinion here.

Breyer: (1) Recess-appointment authority can be exercised during any recess, intrasession or intersession. (2) Senate is in session when it says it is and is able to transact business. Three days is too short to count as a recess.

Scalia concurrence in judgment: Recess-appointment authority can be exercised only during intersession recesses and only with respect to offices that become vacant during recess.

McCullen (First Amendment challenge to a Massachusetts statute that creates a no-speech zone within 35 feet of an abortion clinic)—Opinion by Chief strikes down statute. Victory for pro-life protesters, but how broad? Court unanimous on result. Separate opinions concurring in judgment by Scalia (with Kennedy and Thomas) and Alito.

That’s it for today. Public-sector unions have their worst nightmare: Alito is the probable author of forthcoming opinion in Harris v. Quinn. I’d bet on Chief as author of Hobby Lobby. (That would give him as many opinion assignments as Scalia, Kennedy, and Sotomayor.)

This Day in Liberal Judicial Activism—June 26


1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.

Kicking the Baker Out of the Kitchen


Ed Whelan has ably summarized the unfortunate Tenth Circuit ruling today in Kitchen v. Herbert, affirming a district court’s invalidation of Utah’s marriage amendment.  Like Ed, I am impressed with Judge Paul Kelly’s dissent.  Here I’d like to highlight just how irresponsible it was of Judges Lucero and Holmes to disregard the binding character of the precedent in Baker v. Nelson (1972), in which the Supreme Court summarily dismissed an appeal from the Minnesota supreme court (in a case identical to today’s same-sex marriage cases) “for want of [a] substantial federal question.”

This summary dismissal was in a case not fully briefed and argued, but is nonetheless a completely binding precedent on all federal courts inferior to the Supreme Court.  Many district courts have now disgracefully pitched the Baker case overboard, and the Tenth Circuit panel’s two judges in the majority have done so again in Kitchen.  As Judge Kelly’s dissent rightly notes, there is nothing in the Supreme Court’s more recent rulings in Romer v. Evans, Lawrence v. Texas, or United States v. Windsor that contradicts Baker, and so it must control unless and until the Supreme Court overrules it.

How does Judge Lucero get around Baker?  Apparently by hoping his readers (including the justices of the Supreme Court should they review this ruling) will not notice the word “here” or its context in a quotation he offers of another case.  Judge Lucero writes, “The Supreme Court has held that ‘summary dismissals are, of course, to be taken as rulings on the merits,’” and then adds this (my punctuation in reformatting what was a block quotation in the original, p. 16): “Summary dismissals ‘do not, however, have the same precedential value here as does an opinion of this Court after briefing and oral argument on the merits.’”

Notice that word “here” in the phrase “do not . . . have the same precedential value here.”  That word appears in a footnote Lucero is quoting, in a 1979 Supreme Court decision, and the word “here” plainly means “here in the Supreme Court,” should a case arise in which a previous summary dismissal is on point.  But elsewhere, in lower courts, as the Court’s own repeated statements make clear, summary dismissals have exactly “the same precedential value” as fully briefed and argued decisions on the merits, and those courts do not have the same freedom of reconsideration.  Baker is a precedent squarely on point, indeed identical, to the Kitchen case in Utah, and as Judge Lucero elsewhere concedes, even his best alternative precedent for undermining Baker—last year’s Windsor decision—deals with an issue that “is not identical to the question before us” (p. 18, my emphasis).  Hence it is clearly improper for him not to follow Baker as a matter of course.

Judge Kelly gives ample reasons why the court should follow Baker even if it has some freedom of action not to do so, and his opinion is well worth reading as a model of the judicial restraint the Constitution calls for in these cases.  But let us not allow it to pass from our notice, just how fast and loose the activist judges play with the time-honored norms of lower-court respect for Supreme Court precedent.  Along with all the other principles they traduce, that is.

Re: Tenth Circuit Ruling Against Utah’s Marriage Laws


Some quick observations on today’s ruling, by a divided Tenth Circuit panel, against Utah’s marriage laws:

1. The majority opinion, written by Clinton appointee Carlos Lucero and joined by Bush 43 appointee Jerome Holmes, subjects Utah’s Amendment 3 to strict scrutiny (the most stringent standard of review). The dissent, by Bush 41 appointee Paul Kelly, applies deferential rational-basis review.

2. I’m not going to try to summarize the 65 pages of the majority opinion. Its general line of argumentation and rhetoric seems (not surprisingly) very similar to that of the district courts that have ruled against marriage. One (perhaps empty) exception: The majority “actively discourage[s]” any reading of its opinion that would “brand those who oppose same-sex marriage as intolerant.”

3. Here is a passage from the opening of Judge Kelly’s strong dissent (some citations omitted):

“Same-sex marriage presents a highly emotional and important question of public policy—but not a difficult question of constitutional law,” at least when it comes to the States’ right to enact laws preserving or altering the traditional composition of marriage. See United States v. Windsor, 133 S. Ct. 2675, 2714 (2013) (Alito, J., dissenting). The Constitution is silent on the regulation of marriage; accordingly, that power is reserved to the States, albeit consistent with federal constitutional guarantees. And while the Court has recognized a fundamental right to marriage, every decision vindicating that right has involved two persons of the opposite gender…. 

If the States are the laboratories of democracy, requiring every state to recognize same-gender unions—contrary to the views of its electorate and representatives—turns the notion of a limited national government on its head. Marriage is an important social institution commonly understood to protect this and future generations. That states sincerely differ about the best way to do this (including whether to extend marriage to same-gender couples) is inevitable. And given the recent advent of same-gender marriage, Windsor, it is hardly remarkable that a state might codify what was once implicit. 

Judge Kelly concludes with this exhortation:

We should resist the temptation to become philosopher-kings, imposing our views under the guise of constitutional interpretation of the Fourteenth Amendment.

Here is a high-level guide to his dissent:

a. The Supreme Court’s summary disposition in Baker v. Nelson (1972) forecloses lower courts from recognizing a right to same-gender marriage. (Consistent with analysis of 2012 First Circuit ruling against DOMA.)  (Pp. 2-6.)

b. Tenth Circuit precedent requires rational-basis review of equal-protection claim of alleged sexual-orientation discrimination. (Pp. 3-8.)

c. There is no fundamental right to same-gender marriage (pp. 8-13):

First, same-gender marriage is a very recent phenomenon; for centuries “marriage” has been universally understood to require two persons of opposite gender. Indeed, this case is better understood as an effort to extend marriage to persons of the same gender by redefining marriage. Second, nothing suggests that the term “marriage” as used in those cases had any meaning other than what was commonly understood for centuries…. Third, given the ephemeral nature of substantive due process, recognition of fundamental rights requires a right deeply rooted in United States history and tradition, and a careful and precise definition of the right at issue.

(P. 9 (citations omitted).)

d. Utah’s marriage laws easily satisfy rational-basis review. (Pp. 13-21.)

4. This issue is obviously headed for the Supreme Court. The lower-court rulings are mere preludes. That said, the fact that the panel divided, and that so much turns on what the appropriate standard of review is, illustrates that the Court’s ultimate resolution of this issue is far from the fait accompli that the slew of district-court rulings might be mistaken to suggest. (Which isn’t to pretend that I’m optimistic about how this Supreme Court will rule.)

Tenth Circuit Ruling Against Utah’s Marriage Laws


By a vote of 2-1, the Tenth Circuit has affirmed the district-court judgment against Utah’s marriage laws. I might have more when I have read the opinion

This is the first post-Windsor federal appellate ruling on the matter.

Today’s Rulings


The Supreme Court will be issuing rulings today at 10 a.m.. I will update this post to provide quick news on the results. (For the initial news, I will be relying on SCOTUSblog.) I will reserve any extended commentary for later posts.


Riley v. California and U.S. v. Wurie (Fourth Amendment issues on cellphone privacy)—Chief Justice opinion (single opinion for both cases). Broad protection for privacy. Unanimous (on result; separate Alito opinion).

ABC v. Aereo (copyright protection against Internet broadcast of television program)—Breyer ruling; 6-3 victory for ABC/copyright holders; Scalia dissent. Huge loss for Aereo.

Fifth Third (ERISA issue)—Breyer opinion; unanimous

This Day in Liberal Judicial Activism—June 25


1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

2008— By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.

Re: More Mischief from Judge Reinhardt


Five months ago, I highlighted a Ninth Circuit ruling by notorious liberal activist Stephen Reinhardt that wrongly held—on an issue involving jury selection (in SmithKline Beecham v. Abbott Laboratories)—that the Supreme Court’s anti-DOMA decision last term in Windsor v. United States requires that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles. In the latest link in a long chain of judicial irresponsibility, the Ninth Circuit today issued an order denying en banc review of the case.

Only three of the 29 active judges on the Ninth Circuit recorded dissents from the denial of en banc review. (Seven others were recused.)

Judge O’Scannlain’s strong opinion dissenting from the denial of rehearing en banc faults the panel for (among other things) failing to follow circuit precedent, for instead “arrogating to itself … the power of an en banc court” (and, in so doing, putting the Ninth Circuit “on the short end of a 10-2 split among our sister circuits”), and for “produc[ing] an opinion with far-reaching—and mischievous—consequences for the same-sex marriage debate … without waiting for appropriate guidance from the Supreme Court.”

This Day in Liberal Judicial Activism—June 24


1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court!

Utility Air Regulatory Group v. EPA: Separation of Powers in the Balance


This morning the Supreme Court issued an opinion sharply limiting the EPA’s discretion in Utility Air Regulatory Group v. EPA (which was consolidated with Chamber of Commerce et al. v. EPA and several other cases), a case about the EPA’s authority to unilaterally rewrite pollutant thresholds written directly into the Clean Air Act (CAA). When EPA decided to move forward with regulating stationary sources of “greenhouse gas” emissions (GHGs) such as carbon dioxide, which occurs naturally in colossal quantities, it ran headlong into hard-coded numeric thresholds for pollutants in the text of the CAA. So EPA issued a regulation that just changed the thresholds.

In a split opinion, the Court concluded that EPA exceeded its statutory authority by changing the statutory thresholds, but that it could still treat GHGs as pollutants and require control technologies for certain sources of GHGs.

Since the case was one of the most economically significant this term, numerous amici filed briefs. The Judicial Education Project filed an amicus brief arguing that the government’s claim that it was just following orders from the Court’s decision in Massachusetts v. EPA (2007) distorted the prior holding, which was about administrative procedure. Instead, the brief argued, EPA was vastly overreading the scope of the Court’s holding in Massachusetts, and was using Massachusetts to conceal a host of separation-of-powers problems generated by its position.

After oral argument, I correctly predicted that the justices seemed divided about the best way to decide the case. Justice Scalia wrote the majority opinion for the Court, with Justices Roberts and Kennedy joining Scalia’s opinion in full. Justices Thomas and Alito concurred in part and dissented in part. Justice Breyer wrote a partial concurrence/dissent and concurred with part of Justice Scalia’s opinion, with the liberal justices following Justice Breyer. 

The majority opinion again shows why Justice Scalia is the Court’s foremost textual analyst. The first part of the challenge was to regulations issued under a program that the EPA uses to prevent significant deterioration in air quality. This program (called the “PSD” program) required any source subject to the program to get a permit if it would emit more than 250 tons of carbon dioxide per year. As I mentioned before, EPA had claimed that under Massachusetts, its hands were tied because it was affirmatively required to regulate GHGs under this program, and therefore had to ignore the 250-ton threshold.

The Court put that argument to rest with a sensitive, detailed evaluation of the textual evidence. In particular, Justice Scalia rebuked EPA for the somewhat disingenuous claim that it had to ignore the context of the statute and apply the same definition to all parts of the Clean Air Act (all citations omitted):

The Act-wide definition says that an air pollutant is “any air pollution agent or combination of such agents, including any physical, chemical, biological, [or] radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air.” In Massachusetts, the Court held that the Act-wide definition includes greenhouse gases because it is all-encompassing; it “embraces all airborne compounds of whatever stripe.” But where the term “air pollutant” appears in the Act’s operative provisions, EPA has routinely given it a narrower, context-appropriate meaning.

That is certainly true of the provisions that require PSD and Title V permitting for major emitters of “any air pollutant.” Since 1978, EPA’s regulations have interpreted “air pollutant” in the PSD permitting trigger as limited to regulated air pollutants—a class much narrower than Massachusetts’ “all airborne compounds of whatever stripe[.]” And since 1993 EPA has informally taken the same position with regard to the Title V permitting trigger, a position the Agency ultimately incorporated into some of the regulations at issue here. Those interpretations were appropriate: It is plain as day that the Act does not envision an elaborate, burdensome permitting process for major emitters of steam, oxygen, or other harmless airborne substances. It takes some cheek for EPA to insist that it cannot possibly give “air pollutant” a reasonable, context-appropriate meaning in the PSD and Title V contexts when it has been doing precisely that for decades.

Of Massachusetts, the Court said:

Massachusetts did not invalidate all these longstanding constructions. That case did not hold that EPA must always regulate greenhouse gases as an “air pollutant” everywhere that term appears in the statute, but only that EPA must “ground its reasons for action or inaction in the statute,” rather than on “reasoning divorced from the statutory text[.]” EPA’s inaction with regard to Title II was not sufficiently grounded in the statute, the Court said, in part because nothing in the Act suggested that regulating greenhouse gases under that Title would conflict with the statutory design. Title II would not compel EPA to regulate in any way that would be “extreme,” “counterintuitive,” or contrary to “‘common sense.’” At most, it would require EPA to take the modest step of adding greenhouse-gas standards to the roster of new motor-vehicle emission regulations.

Justice Scalia even quoted the JEP amicus brief on page 14 of his opinion:

Keep reading this post . . .

This Day in Liberal Judicial Activism—June 23


2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan.

The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.

It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are. 

This Day in Liberal Judicial Activism—June 21


1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”

Legislative History as “Statist Tool of Interpretation”


From the Volokh Conspiracy’s Will Baude, I’ve learned of this Yale Law Journal article by Yale law professor Nicholas R. Parrillo that explores the question “how legislative history came to be such a common tool of interpretation.” From the article’s abstract, here is Parrillo’s interesting answer (emphasis added):

The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

I look forward to reading Parrillo’s (very long) article and may have more comments on it after I have read it—including, perhaps, on its connections to some of the broader themes in law professor law professor Philip Hamburger’s important new book Is Administrative Law Unlawful?.

This Day in Liberal Judicial Activism—June 20


2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”

Pamela Harris: A Vote for the Obama Administration


Over the last few days, Carrie Severino and I have been discussing the nomination of Pamela Harris, a former Obama political appointee, as a judge for the Fourth Circuit. (Here are links to Parts 12, 3, 4, and 5 of this series.) As it turns out, Harris’s judicial philosophy typifies everything that the public has come to expect from radical judges.

For instance, Harris has admitted that she thinks the Warren Court — which more or less defines judicial activism in American history – was too conservative

As Carrie noted before, Harris also explicitly endorses the idea that the Constitution is always evolving (although only in a leftward direction), which explains why she can say with a straight face that our 200-year-old Constitution is a “progressive” document that, miraculously, supports her modern liberal political agenda. She denies that the Constitution has a fixed meaning that can be known by looking at its text and history, and instead must be interpreted by exegeting modern social movements.

To see how radical Harris really is, let’s consider a case from the current Supreme Court term. At an event at Georgetown University Law Center in 2013, Harris commented on the use of treaties to authorize federal criminal statutes against local conduct in Bond v. United Stateswhich involved a prosecution for a simple assault under a federal chemical-weapons treaty and its implementing statute:

I did think this argument that what will likely appeal to the Court, this idea that well, whatever the Court said in Missouri v. Holland, just as a factual matter, the kinds of things now covered by treaties has really changed since then. That’s the kind of argument that I always find appealing because right, like the Constitution evolves, it has to keep pace with changes in the factual predicates, and yes, our readings of constitutional provisions ought to change and evolve in light of circumstances on the ground like that.

Setting aside for a moment the transparent radicalism of this view, consider how brutally wrong she was. The Supreme Court voted 9–0 for the defendant, who was challenging the use of the treaty for the criminal prosecution. Not a single justice wrote or signed an opinion suggesting that the Constitution’s treaty power had changed. Indeed, the most liberal justices all signed onto Justice Roberts’ opinion, which (for all its other faults) recognized the important role that federalism plays in the distribution of powers between states and the federal government.

Think about that for a moment: Harris’s view was more radical than the combined forces of Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan.

Harris’s interest in transforming the Constitution can sometimes be humorous. During a 2009 panel, after reshaping the Constitution into her own liberal likeness, she looked upon her creation and declared it good:

And I always feel unapologetically, you know, left to my own devices, my own best reading of the Constitution, it’s pretty close to where I am. Because I think the Constitution is a profoundly progressive document. . . . I think it’s a great document. And I think as amended, and as interpreted, and the method, with the people of good will, applying the methodology that’s talked about in this book, it is something we can all be really proud of. That’s a separate question from whether social movements should concentrate all of their energies on the courts and on the Constitution—as opposed to political change through other avenues. And I think almost everybody would agree that social movements are well-advised not to limit themselves to the courts, not to only think about constitutional law, but also to be pursuing democratic processes, and looking for change, and trying to improve the situation that we have. But, you know, deep down, I’m just a huge fan of the Constitution.

Gee, I’m a huge fan of the Constitution too! That’s because of what the Constitution is, not because of how far it can be twisted to my fancy. But this point — that the Constitution is only good if it means what Harris wants — is really important to understanding her chilling strategic vision.

Remember that she thinks judges should interpret the Constitution as seen through social movements of various stripes. Laudably, Harris sees some role for, you know, democracy. But in this formulation, that nod seems somewhat circular: The courts should interpret the Constitution in accordance with social movements; social movements should try to get the courts to change the Constitution. In reality, this sounds like an attempt to bootstrap the Constitution into the service of Harris’s liberal politics, not interpretation of a legally binding document. Perhaps Harris can clarify. 

As far as judicial philosophy goes, though, Harris’s nomination must give the shivers to red-state Democrats like Mark Pryor, Mark Begich, and Mary Landrieu. By nominating Harris, the administration is forcing these politicians to vote on a radical nominee who not only thinks that previous generations of judicial activism didn’t go far enough, but also that judges should be amateur sociologists. That ideology is obviously designed to give Harris and other judges latitude to rubber-stamp the Obama agenda.

As such, any votes for Harris will be a dead giveaway that these vulnerable Democrats are not serious about opposing Obamacare, the EPA, or any of the other issues on which they claim to oppose him.


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