Now this is curious:

In August 2010, on the very day that Judge Vaughn Walker issued his ruling invalidating Prop 8, the ACLU of Southern California issued a press release hailing the “landmark” decision. The press release quoted the ACLU/SC’s then-executive director, Ramona Ripston, “rejoic[ing] at this decision.”

By contrast, today, a full 24 hours after Judge Stephen Reinhardt’s Ninth Circuit opinion affirming Walker’s judgment, the ACLU/SC’s website is silent about the ruling.

What might explain the difference?

Well, I suppose that one possibility is that the ACLU/SC is no longer as efficient now that Ms. Ripston isn’t running the day-to-day operations and is instead executive director emeritus. But the most recent ACLU/SC press releases were all issued the same day as the news they report, so that theory seems doubtful.

I would guess that a far more likely explanation arises from the fact that Stephen Reinhardt and Ramona Ripston are husband and wife. I’m guessing that the ACLU/SC has decided that it would be unseemly to openly celebrate a ruling on an issue of high importance to it when that ruling was rendered by the spouse of someone who remains affiliated with it (and who continues to “assist the organization in fundraising, among other areas”).

It was just over a year ago, you may recall, that Reinhardt declined to recuse himself from the Prop 8 appeal, notwithstanding the fact that his wife Ramona Ripston consulted with plaintiffs’ counsel about the very decision to file the lawsuit, that she authorized the ACLU/SC—which had vaunted its “lead role” on the fight for same-sex marriage—to file amicus briefs supporting plaintiffs in the trial proceedings in the same case, and that she publicly celebrated the very ruling that he is now reviewing. (Links to my multi-part critique of Reinhardt’s utterly unpersuasive non-recusal order are here.) So far as I’m aware, no legal ethicist has defended Reinhardt’s non-recusal, and his participation in yesterday’s ruling provides a clean and sufficient basis for the Supreme Court to vacate that ruling.

In a sane legal world, Reinhardt would have recused himself, and the ACLU/SC would feel itself free to celebrate or condemn whatever ruling the differently composed Ninth Circuit panel issued. Instead, Reinhardt has taken part, and the ACLU/SC seems to be lying low.

As various folks have pointed out, Judge Reinhardt has clearly crafted his opinion in the Prop 8 case for an audience of one person, Justice Anthony Kennedy. That’s evident in Reinhardt’s effort to camouflage his opinion as narrow (when in fact his reasoning would invalidate all traditional marriage laws). And it’s especially true in Reinhardt’s extensive claim (see pp. 42-55) that his ruling follows directly in the tracks of Kennedy’s majority opinion in Romer v. Evans (1996).

In fact, though, neither of the two points that Kennedy sets forth as central to his analysis in Romer is presented by Prop 8.

Kennedy’s “first point” about Colorado’s Amendment 2 is that it “impos[ed] a broad and undifferentiated disability on a single named group”: “It identifies persons by a single trait and then denies them protection across the board.” (Emphasis added.) By contrast:

In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.

But as Reinhardt acknowledges, Prop 8, far from imposing “a broad and undifferentiated disability,” has a “unique and strictly limited effect” (p. 6) and made “a singular and limited change” (p. 34). It leaves in place California’s domestic-partnership law, which extends to same-sex couples all the rights, obligations, and incidents of marriage.* All that Prop 8 does is restore the traditional definition of marriage, which leaves every unmarried person in California free to marry an unmarried person of the opposite sex (subject to age and other routine requirements). In other words, Prop 8, properly understood, doesn’t impose any disability at all, and even those who think it does must recognize that its effect is “strictly limited.”

Reinhardt concedes this difference, but asserts that it does “not render Romer less applicable.” (Pp. 45-46.) So much for respecting Kennedy’s primary point.

Kennedy’s “second and related point” is that Amendment 2’s “sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects.” (Emphasis added.) It thus “raise[d] the inevitable inference that the disability imposed is born of animosity toward the class of persons affected.” (Emphasis added.) Kennedy further made clear that what he meant by “animus” (and “born of animosity”) is “‘a bare … desire to harm a politically unpopular group.’” Addressing the justifications offered by Colorado, Kennedy stated that the “breadth of [Amendment 2] is so far removed from these particular justifications that we find it impossible to credit them.”  

This point also clearly doesn’t apply to Prop 8. For starters, Prop 8, far from having “sheer breadth,” is (by Reinhardt’s own account) “strictly limited,” and its justifications are closely connected to it. In addition, Reinhardt himself disclaims the “suggest[ion] that Proposition 8 is the result of ill will on the part of the voters of California” and instead draws the “inevitable inference” of voters’ “disapproval of gays and lesbians as a class.” (P. 72.) But “ill will” (or “a bare … desire to harm”) is precisely what Kennedy meant in Romer  by “animus.” Further, Reinhardt’s “inevitable inference” of voters’ “disapproval” arises only because he has wrongly rejected the justifications for Prop 8 (see points 3 and 4 here). 

In sum, whether Reinhardt’s reliance on Romer is an effort to hoodwink Kennedy or to pander to him, it in fact gives Kennedy no fair basis to vote to affirm Reinhardt’s ruling.

* This explanatory sentence was not part of my original post; I added it on 2/9.

It is no surprise that the most liberal court in the nation has upheld the most activist decision to date inventing a new constitutional right to same-sex marriage. The court’s reasoning is yet another example of the one-way ratchet activist judges use to secure constitutional protection for their favorite causes. The Ninth Circuit held that, once the uber-liberal California Supreme Court determined that the 150-year-old California state constitution should be read to include a right to same-sex marriage, the people of California were now prohibited from amending their own constitution to check that ruling.  

This ruling effectively says that any attempt by the people of California to check their state courts’ liberal activism violates the United States Constitution. That proposition is not only legally laughable but is constitutionally backwards and may be the most serious attack on self government since the era of poll taxes and literacy tests. They have not only disenfranchised those who are poor or Black, they have effectively disenfranchised an entire state’s citizenry.

Here’s how the one-way ratchet works in today’s opinion. Once a state has changed its law to allow same-sex marriage, then changing the law back becomes a “distinct constitutional violation” by “strip[ping] same-sex couples of the right to have their committed relationship recognized by the State with the designation of ‘marriage,’ which the state constitution had previously guaranteed them.” For the Ninth Circuit it didn’t matter whether same-sex marriage was the law in California for an hour, a day, or a year. It didn’t matter whether it was legalized via judicial fiat rather than legislatively or by a referendum of the people. It didn’t matter that the California Supreme Court acknowledged that the right itself was novel. Once there, it never can be eliminated. Not by the California Supreme Court reconsidering its own discovery of the right. Certainly not by the California legislature. And now not even by the people amending their own state constitution.

The powers reserved to the states and the people by the Tenth Amendment mean very little if the people do not retain control of their own state governments. It would be different if the U.S. Constitution mandated same-sex marriage; then states could not block a constitutional right. But this is not the case, and the Ninth Circuit does not even purport to claim that it is.  

The court simultaneously works both sides of the designation of “marriage” — it is both “narrow” and “limited” to the terminology used, and of “extraordinary significance” because of the “significant symbolic disparity between domestic partnership and marriage.” While emphasizing that marriage is just a word, the court characterizes proponents of Prop 8 as mean-spirited bullies who want to deny homosexuals a practically meaningless phrase. While opining about the “official, cherished status” of marriage (relying on experts ranging from William Shakespeare to Frank Sinatra and Groucho Marx) the court suggests that words, in fact, can hurt you.

In the bizarro world of the Ninth Circuit, marriage is at once nothing and everything. The unelected California Supreme Court can singlehandedly invent new constitutional rights, but the people cannot use the proper amendment procedures to amend that same constitution to restore its original meaning. And once a state takes a step to the Left, it can never go back.

Back in the 1960s, the Supreme Court made several rulings supportive of what many on the right would call “religious freedom.” For example, it ruled that Amish parents could not be required to send their children to school past eighth grade. It offered a set of arguments (such as that Amish children don’t typically grow up to become wards of the state) that could help distinguish this case from other claims that religious people don’t have to follow certain laws.

The tide turned in the 1980s, however, and the Court instead offered what I think is a much more reasonable standard: Secular laws of general applicability may be applied to religious practices, but lawmakers may not specifically target religious practices. For example, in Employment Division v. Smith, the Court ruled that drug bans may apply to American Indians who use peyote in their rituals.

In my view this has a major advantage over the previous system: It still protects religious groups from outright persecution, but for the most part it places the thorniest questions — What counts as a religion? How do you draw a line between smoking peyote and circumcising your daughter? What about people who refuse to apply for the draft, serve on juries, or pay their taxes? How do we stop people from avoiding the law by making up religions or joining existing ones insincerely? — before the political process instead of the courts. In fact, Congress acted swiftly to add an exemption to drug laws for American Indians.

Today, however, it’s as if those cases never existed. Throughout the conservative media, you’ll find assertions that the Obama administration’s birth-control mandate — indisputably a secular law of general applicability — is not merely a bad law that will have especially bad effects on Catholics, but an offense against “religious liberty” and a violation of the First Amendment. And in the recent Hosanna-Tabor case, the Court found that when it comes to “ministers,” quite broadly defined, religious institutions are free to ignore many employment laws, even when they’re making a decision that has nothing at all to do with religion.

[UPDATE: Ed Whelan has made the case that the birth-control mandate is not truly a secular law of general applicability. He's also explained how the mandate could violate federal law, as opposed to the First Amendment.]

I wonder if the Court would have been better off overruling the previous batch of cases, and in particular Smith, entirely. I think Smith is superior to what came before, but I seem to be in the minority, and the Court itself doesn’t seem to be applying that standard anymore.

To be fair, the Court does try to grapple with this — it claims that smoking peyote is an “outward physical act” instead of an “internal church decision.” Unless the Obama administration backs down, the lawsuits over the birth-control mandate should reveal to us exactly what that means.

On the Corner yesterday, there was a lot of discussion related to Justice Ginsburg’s statement during a recent visit to Egypt (transcript here, video here), “I would not look to the U.S. Constitution if I were drafting a constitution in the year 2012.” She instead recommended the South Africa constitution (“a deliberate attempt to have a fundamental instrument of government that embraced basic human rights and an independent judiciary”), Canada’s Charter of Rights and Freedoms, and the European Convention on Human Rights as preferable models.

At Red State, cartoonist TobyToons presents a pop quiz on the Constitution, asking “Which of these artifacts is too old and irrelevant to be useful to America?” See if you can pass the quiz.

No court can change the nature of men and women, or change the truth that the complementary union between husband and wife is different from any other human relationship. And no court should presume to redefine marriage — yet two of three judges in the oft-overturned Ninth Circuit have attempted to do so with Tuesday’s decision in the lawsuit over California’s marriage amendment, Perry v. Brown.

The decision emphatically denies any holding regarding “whether same-sex couples have a fundamental right to marry, or whether states that fail to afford the right to marry to gays and lesbians must do so.” Instead, the court boldly extends the holding of an unrelated Supreme Court decision, Romer v. Evans, to conclude that once same-sex unions are granted the title of “marriage,” that moniker cannot be taken away. Not surprisingly, the Ninth Circuit was completely unconcerned with the fact that Californians never granted any ability for two men or two women to “marry” — that short-lived “right” was granted by a one-vote majority of California’s Supreme Court in 2008.

The Ninth Circuit should not attempt to undercut the democratic process by taking the power to preserve marriage out of the hands of the people. Americans overwhelmingly reject the idea of changing the definition of marriage: 63 million Americans in 31 state elections have voted on marriage, and 63 percent voted to preserve marriage as the timeless, universal, unique union between husband and wife.

No one should be surprised that this Hollywood-orchestrated attack on marriage, which was tried in San Francisco, turned out this way. But as the primary legal defenders of California’s marriage amendment, we are confident that the expressed will of the American people in favor of marriage will ultimately be upheld. To that end, every pro-marriage American should be pleased that this case can finally go to the full Ninth Circuit or the U.S. Supreme Court — where, we are confident, the American people’s definition of marriage will be upheld. The ProtectMarriage.com legal team’s arguments align with every other federal appellate and Supreme Court decision on marriage in American history.

This is only one battle. The good news is that those who wish to see marriage protected are still winning the war across the nation. Society should protect and strengthen marriage between husband and wife because marriage protects and strengthens children, families, and society.

— Brian Raum is senior counsel and head of marriage litigation for the Alliance Defense Fund (www.telladf.org) and is a member of the ProtectMarriage.com legal team defending the California marriage amendment in the federal lawsuit Perry v. Brown.

I see that Eugene Volokh’s initial assessment is similar to mine. He’s unpersuaded by Reinhardt’s argument that Prop 8 doesn’t advance an interest in proceeding cautiously (his point 5, my point 4), and he doesn’t think that Reinhardt’s reasoning can be limited to situations like California’s (his point 3, my point 5).

Volokh and I also agree that Reinhardt’s dismissal of California’s interest in procreation and childrearing is erroneous, though his argument (his point 4) has only some overlap with mine (my point 3).

We also agree that this is a ruling the Supreme Court will see fit to review.

Some quick comments on Judge Reinhardt’s majority opinion:

1. From the very first line of his opinion (“Prior to November 4, 2008, the California Constitution guaranteed the right to marry to opposite-sex couples” (emphasis added)), Reinhardt persistently conflates the California constitution with the state supreme court’s lawless misinterpretation of it. That trick is essential to his line of reasoning—including his extensive reliance on the inscrutable ruling in Romer v. Evans (1995)—for if one recognizes that the people of California, by adopting Proposition 8, exercised their sovereign power to correct the state supreme court’s misreading of the state constitution, then it follows that they didn’t take away anything that the state constitution ever really conferred.

(I recognize that a federal court, in applying state law, is generally obligated to accept a state supreme court’s authoritative construction of state law. But it’s far from clear to me that that proposition properly extends here.)

2. For Reinhardt, “‘marriage’ is the name that society gives to the relationship that matters most between two adults.” (P. 37.) The right to marry that the state supreme court conferred on same-sex couples “symbolize[d] state legitimization and social recognition of their committed relationships.” (P. 5.)

Notice what’s missing from Reinhardt’s description? Any recognition that the very institution of marriage arose and exists in order to encourage responsible procreation and childrearing.

3. On pages 56-63, Reinhardt does confront the argument that Prop 8 advances California’s interest in procreation and childrearing, but his analysis is badly flawed:

a. Reinhardt first undertakes to address the argument that “children are better off when raised by two biological parents and that society can increase the likelihood of that family structure by allowing only potential biological parents—one man and one woman—to marry.” But he somehow finds it dispositive that Prop 8 “had absolutely no effect on the ability of same-sex couples to become parents or the manner in which children are raised in California.” What he utterly ignores is that it is eminently reasonable to believe that the less marriage is centered around the concerns of responsible procreation and child-raising, the less well marriage will serve those goals. That’s an elementary lesson about mission confusion.

The redefinition of marriage to encompass same-sex couples fatally severs the link between marriage and procreation. That’s why Reinhardt has to misdescribe marriage (see point 2).

b. Reinhardt also addresses the argument that “marriage reduces the threat of ‘irresponsible procreation’—that is, unintended pregnancies out of wedlock—by providing an incentive for couples engaged in potentially procreative sexual activity to form stable family units.” He says that this argument necessarily rests on the proposition that “opposite-sex couples were more likely to procreate accidentally or irresponsibly when same-sex couples were allowed access to the designation of ‘marriage’” (emphasis in original)—a proposition he dismisses as not “even conceivably plausible.”

It is odd that Reinhardt defines “irresponsible procreation” to mean only “unintended pregnancies out of wedlock.” Given how marriage benefits children, it is entirely reasonable to regard intended pregnancies out of wedlock at as least as irresponsible. And, again, it is entirely reasonable to believe that the more marriage is devalued as the vehicle for responsible procreation (a devaluation that necessarily flows from the redefinition of marriage to include same-sex couples), the more out-of-wedlock procreation, intended or unintended, there will be.

4. Reinhardt opines that Proposition 8 doesn’t advance California’s interest in “proceed[ing] with caution” in redefining marriage. (Pp. 64-66.) Here again, he plays his game of obscuring the role of the California supreme court, as he maintains that “the State” didn’t proceed with caution by first “provid[ing] same-sex couples the right to marry” and enabling more than 18,000 such couples to marry before adopting Proposition 8.

Reinhardt also contends that there is “no rational connection”—none at all—“between the asserted purpose of ‘proceeding with caution’ and the enactment of an absolute ban, unlimited in time, on same-sex marriage in the state constitution.” His contention rests on the fallacy that re-amending the state constitution would be exceptionally difficult to do.

Reinhardt further claims that “it is not credible to suggest that ‘proceed[ing] with caution’ was the reason the voters adopted the measure.” Whether or not it was the exclusive reason, it certainly is credible to suggest that it was part of the reason. Reinhardt contends that the “avowed purpose of Proposition 8 was to return with haste to a time when same-sex couples were barred from using the official designation of ‘marriage,’ not to study the matter further.” But here he ignores the fact that the California supreme court construed the voters’ intent as leaving in place existing same-sex marriages. He also ignores the elementary fact that California voters could “study the matter further” by observing what happens to marriage in other states and other countries.

5. If one accepts Reinhardt’s reasoning that dismisses the core rationales for traditional marriage, I don’t see how traditional marriage laws could survive anywhere. In other words, the sweep of Reinhardt’s reasoning is far broader than his purportedly narrow holding.

6. Former judge Vaughn Walker’s purported factual findings play virtually no role in Reinhardt’s ruling. That’s further evidence that Walker’s whole trial was a pointless (and time-consuming) farce.

As I expected, a divided panel of the Ninth Circuit has affirmed former judge Vaughn Walker’s outlandish ruling that California’s Proposition 8 violates the federal Constitution. Arch-liberals Judge Stephen Reinhardt and Judge Michael Hawkins were in the majority, with Hawkins joining Reinhardt’s opinion. Judge Randy Smith dissented.

From a quick skim of the introduction, I see that the majority opinion purports to be narrow. It doesn’t opine on the general question “[w]hether under the Constitution same-sex couples may ever be denied the right to marry.” [Emphasis in original.] Instead, it maintains that the particular context in California—in which same-sex couples under California’s domestic-partnership law had all the rights of opposite-sex couples and in which Proposition 8 restored the definition of marriage that the state supreme court had invalidated—means that there was no “legitimate reason” for Proposition 8.

In the grand scheme of things, there is nothing enduringly significant about today’s ruling. The Ninth Circuit was just a way-station on the path to the Supreme Court, and the composition of the Ninth Circuit panel meant that there was no prospect for a reversal of Walker’s ruling. What would have been most troubling would have been a ruling that Prop 8 proponents didn’t have standing on appeal, as that might have complicated the prospects for Supreme Court review. But the case now has a seemingly clear path to the Supreme Court.

It’s still possible, of course, that the Ninth Circuit might take the case en banc, either on its own initiative or on a request from Prop 8 proponents. My own guess is that it won’t do so—and that the Court will grant review of the Ninth Circuit’s ruling before the November elections (and perhaps even hear oral argument in October or November).

I will provide further commentary after I have read the ruling more carefully.

Last Thursday, the Senate Judiciary Committee favorably reported the nomination of Paul Watford to the U.S. Court of Appeals for the Ninth Circuit on a party line vote, 10-6.  Senator Grassley explained his opposition here.

Lyle Denniston’s SCOTUSblog preview of tomorrow’s Ninth Circuit ruling in the Prop 8 case includes the assertion that one of the panel members, Clinton appointee Michael D. Hawkins, “is considered to be a moderate.” Hawkins has described himself that way—“I think of myself as being entirely moderate in all things”—but even he has hastened to add the disclaimer, “but others might say otherwise.” Indeed, they might.

As I reported when the panel members were initially made public, a source I trust told me that of the nearly 50 active and senior judges then on the Ninth Circuit, there were only five or six other judges who were as aggressively and reflexively leftist as Hawkins and his fellow panel member, the ultraliberal Stephen Reinhardt.

I am not aware of any group more supportive of Governor Christie’s efforts to reform the New Jersey judiciary than the Judicial Crisis Network, of which I am chief counsel. Christie has consistently promised to break the liberal-activist stranglehold on the New Jersey courts by appointing judges who would “interpret laws and the Constitution, not legislate from the bench.” After a very promising start, Christie has disheartened conservatives by going back on his word with his recent nominations to the state supreme court.  

Exhibit A is Bruce Harris who Christie just nominated to New Jersey’s highest court from what appears to be a great desire to check some diversity boxes. There are two possible explanations, neither flattering to Governor Christie. The governor’s office was either astoundingly incompetent in vetting Harris, or Christie has quite resoundingly betrayed his campaign promises.

I don’t come to this conclusion lightly.  

From the outset many have voiced concerns that Harris lacks trial experience. While I can imagine scenarios in which individuals with otherwise stellar credentials and a clearly articulated judicial philosophy would be sound judicial picks, it seems logical that most judges should be drawn from the ranks of lawyers with experience in a courtroom – or at least someone who has otherwise evidenced some background of having thought through a range of legal issues beyond their corporate clients’ immediate case.

If Harris has a cohesive judicial philosophy, it is known only to him and — we can hope — Governor Christie. One would assume some due diligence about judicial picks from a governor who pledged: 

I will remake the court and I will remake it in this one simple principle. If you [want to] legislate [then] run for the Legislature, don’t put on a black robe and go to the Supreme Court and there won’t be any justices that I either reappoint or put on that court that do that.

Did Christie interview his potential nominees to probe their judicial philosophies? Did Harris articulate a clear legal approach and pledge never to legislate from the bench? And did Christie have any evidence that Harris (or his other nominee, Phillip Kwon, for that matter) had adhered to a judicial philosophy in the past that placed consistent legal principles over personal policy preferences? Without a proven track record, it is too easy for judges to simply tell the governor what he wants to hear. After all, we all would be concerned about undergoing surgery by someone who has never been near the operating room, but was hired on the strength of his self-assessment.  

Furthermore, the only available evidence of Mr. Harris’ views — an e-mail he sent to support gay marriage — shows him to be anything but a judicial conservative. Granted, there are conservatives who may agree with altering the definition of marriage to include same-sex couples, but the reasons cited by Harris amount to a frontal assault on faith, judicial restraint, and tradition, oozing hostility to religion.

 Mr. Harriss’ e-mail reads (emphasis mine): 

You have met me and my partner . . . Marc, on more than one occasion. . . . The New Jersey Supreme court has determined that our relationship is entitled to the equal protection guarantees of the State Constitution. 

Harris’s appeal to “the equal protection guarantees” in the New Jersey Constitution shows his approval of the New Jersey case of Lewis v. Harris, which required the state to create homosexual civil unions. In a move familiar to students of liberal judicial activism, the New Jersey Supreme Court decided that language in the Constitution guaranteeing life, liberty, property, and the pursuit of safety and happiness created an equal protection guarantee by implication. What is his originalist defense for this position? Is there any defense of this decision that does not constitute legislating from the bench? What other phrases might Harris read into the New Jersey constitution?  

When I hear someone say . . . marriage is . . . between a man and a woman because that’s the way it’s always been, I think of the many “traditions” that deprived people of their civil rights for centuries: prohibitions on interracial marriage, slavery, (which is even provided for in the Bible), segregation, the subservience of women . . .

And, if the basis of your opposition is religious, then I suggest that you do what the US Constitution mandates — and that is to maintain a separation between the state and religion.

While the separationist rhetoric may sound harmless on the surface, in fact it is the basic operating logic of every liberal assault on religious liberty and has been the rallying cry of every effort to force people of faith out of the public square. While our Constitution prohibits establishing religion, it establishes neither non-religion nor a separationist state. Importing a policy of extreme secularism into constitutional law is hardly consistent with what anyone would consider a restrained jurisprudence.

This is not about Harris’s homosexuality. This is about using government’s monopoly on power to advance a hostile secular agenda that dictates the contours of acceptable religious beliefs, suppressing those beliefs that are contrary to what our wise judges deem acceptable. His methods of reasoning in the letter indicate a pattern of loose readings of the constitutional text to obtain a desired result, whether by creating a new right to equal protection out of whole cloth or by upending religious rights to shield the state from religion rather than vice versa.

Andy McCarthy said of Christie, “In any event, it becomes increasingly clear that as a potential presidential candidate, Chris Christie makes a good governor of New Jersey.”  

That may be an overstatement. If this is how he approaches judicial nominees, Governor Christie has failed in a fundamental duty as governor.  

The Ninth Circuit has announced that it expects to issue tomorrow—by 10 a.m. Pacific time, 1 p.m. Eastern—its ruling on the merits of the Prop 8 appeal. Its opinion will address both the constitutionality of Prop 8 and the question whether former judge Vaughn Walker’s ruling should be vacated because of his failure to recuse.

As I’ve said, I think that it’s a sure thing that Judge Reinhardt and Judge Hawkins will vote to affirm Walker’s ruling that Prop 8 is unconstitutional. I expect that they will stay their ruling from taking effect until the process of Supreme Court review is complete.

It appears that Perry v. Brown will be decided on the merits tomorrow, the decision to be announced by the Ninth Circuit at 10:00 a.m. Pacific time, 1:00 p.m. in the East.

In this morning’s Washington Post, E.J. Dionne has a fairly run-of-the-mill liberal diatribe about the awfulness of the Supreme Court’s January 2010 decision in the Citizens United case, which overturned part of the McCain-Feingold “campaign finance” legislation.  According to Dionne, the ruling was “one of the most naive decisions ever rendered by the court.”  He has, of course, not a paragraph–a sentence–even a clause–attempting to criticize the Court’s reasoning about the First Amendment.  Dionne is exercised about the results, which he regards as very bad (what with those “Super PACs” funded by gazillionaires and all that), and entirely predictable (and thus sufficient reason for the Court to have decided the other way, regardless of what the First Amendment might be most fairly interpreted to mean).  Not liking the results, he is sure that the decision can be called “activist” (a label that never emerges from his typing fingers when discussing rulings with liberal results, but you knew that already), and “legislating from the bench” (ditto).

All this is so much of the usual blather that one could turn the page in boredom and miss what is really eyebrow-raising about Dionne’s column.  Here it is:

But ascribing an outrageous decision to naiveté is actually the most sympathetic way of looking at what the court did in Citizens United. A more troubling interpretation is that a conservative majority knew exactly what it was doing: that it set out to remake our political system by fiat in order to strengthen the hand of corporations and the wealthy. Seen this way, Citizens United was an attempt by five justices to push future electoral outcomes in a direction that would entrench their approach to governance.

In fact, this decision should be seen as part of a larger initiative by moneyed conservatives to rig the electoral system against their opponents. . . .

Got that?  In mid-column, Dionne reverses field.  Citizens United should not be seen as a “naive decision” by a Court too wedded to erroneous interpretations of the First Amendment to see the ill effects of its ruling.  No, there’s “a more troubling interpretation” of the decision, and Dionne doesn’t simply offer it as an alternative, for in the next paragraph he says Citizens United should be seen this way.  And that darker view is that the “conservative” justices actually want to engineer certain electoral outcomes that favor “corporations and the wealthy,” and presumably the Republican Party, while disadvantaging the poor and the middle class, and presumably the Democrats.  This will “entrench their [i.e., the justices'] approach to governance”–whatever that is.

One need not be a defender of Citizens United to find this an absolutely appalling canard, more suited for the fever-swamp blogs of the left than for a columnist in a respected national newspaper.  Let me restate this so no one will misunderstand.  E.J. Dionne evidently believes that Chief Justice John Roberts, and Justices Scalia, Kennedy, Thomas, and Alito are not only wrong about the principles of the Constitution.  Dionne thinks they know they are wrong, and that they are willing to pretend that the Constitution means something it doesn’t, in order to give electoral advantage to corporations and fat cats.  He is, in short, accusing them of violating their oaths, traducing the Constitution, and betraying their country for the lowest of reasons–mere partisan political advantage for people whose interests attract their sympathy, for reasons unexplained other than that the justices have some “approach to governance” that will be “entrenched.”  If he had a shred of evidence for such a wild accusation, he would, I suppose, produce it.  He has not produced it, and he cannot.  If he were right, the five justices in the Citizens United majority would have committed an impeachable offense.  Since he is wrong, it is E.J. Dionne who has impeached himself.

Now perhaps in Dionne’s defense it might be said that he doesn’t really mean to accuse anyone of having really acted in bad faith–that in the steady drumbeat of writing columns on deadline one will sometimes get careless–that this sort of thing is more common now in the wild, wild West of the blogosphere, so what’s the big deal–that he was just throwing red meat to his friends in the left-wing law faculties.

In that case, I would accept without further question Dionne’s withdrawal of what stands, as of now, as a foul calumny on honest public servants.

The video of my “Washington Journal” segment on C-Span this morning—on the topic of the HHS contraception mandate—is currently available here.

Now that I’m back in the office and able to follow up on my post from last week, I’d like to highlight what a remarkably (and suitably) stinging condemnation the Ninth Circuit (in an opinion by Judge Reinhardt, no less) makes of the behavior of former district judge Vaughn Walker. To fully appreciate this, it’s important to have in mind that Walker’s successor, Judge James Ware, approved of Walker’s conduct. Thus, the Ninth Circuit’s criticism of Ware’s bottom line is necessarily also a criticism of Walker.

Consider these passages (citations omitted), both individually and in their totality:

The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments.… [T]he interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release. [Emphasis added.]

Proponents reasonably relied on Chief Judge Walker’s specific assurances—compelled by the Supreme Court’s just-issued opinion—that the recording would not be broadcast to the public, at least in the foreseeable future. While Chief Judge Ware found that no such assurances had been given and concluded that, in any event, he was not bound by promises made by his predecessor, his finding was “without ‘support in inferences that may be drawn from the facts in the record,’” and his conclusion—which contravenes the very notion of judicial integrity—was an “implausible” and “illogical” application of the “compelling reason” standard to the facts at issue here. [Emphasis added.]

Interpreted in their full context, at least two of Chief Judge Walker’s statements amount to unequivocal assurances that the video recording at issue would not be accessible to the public. No other inference can plausibly be drawn from the record.

Chief Judge Walker did not merely create the recording and place it in the record under conditions that he and the parties understood to be subject to later modification; rather, he promised the litigants that the conditions under which the recording was maintained would not change—that there was no possibility that the recording would be broadcast to the public in the future. No other inference could plausibly be drawn from the record. [Emphasis in original.]

Chief Judge Walker’s assurances were compelled by the Supreme Court’s ruling in this very case. After the Supreme Court held that his order to broadcast the trial had “complied neither with existing rules or policies nor the required procedures for amending them,” Chief Judge Walker could not lawfully have continued to record the trial without assuring the parties that the recording would be used only for a permissible purpose. Chief Judge Walker’s statements concerning the use of the recording were not only solemn commitments on their own terms, therefore; they were commitments dictated by the actions of a higher court, and thus even worthier of the parties’ reliance. [Emphasis added.]

To revoke Chief Judge Walker’s assurances after Proponents had reasonably relied on them would cause serious damage to the integrity of the judicial process—damage that under any plausible, logical application of the “compelling reason” standard would have caused Chief Judge Ware to keep the recording sealed.

Had Chief Judge Ware properly understood Chief Judge Walker’s statements as commitments to the parties, and had he recognized those commitments as binding obligations and constraints on his own discretion, he could have arrived at only one conclusion that is logical, plausible, and consistent with the record: to preserve the integrity of the judicial system, the recording must remain under seal. [Emphasis added.]

Proponents were thus entitled to take Chief Judge Walker at his word when he assured them that the trial recording would not be publicly broadcast or televised.

Because Proponents reasonably relied on Chief Judge Walker’s commitments in refraining from challenging his actions, the setting aside of those commitments would compromise the integrity of the judicial process. [Emphasis added.]

Again, all together, this is just further evidence demonstrating that Walker’s misconduct in the Prop 8 case is the most egregious performance ever by a federal district judge.

I’m very pleased to report that the Originalism Works-in-Progress Conference that I took part in this past Friday and Saturday at the University of San Diego amply exceeded my hopeful expectations (so much so that I didn’t wonder why I wasn’t outdoors enjoying San Diego’s beautiful weather).

The conference attracted a diverse array of scholars from some twenty or so law schools (only some of whom are listed at the site linked above): various proponents of different versions of originalism, a number of critics of originalism, and others who may not necessarily have staked out a methodological position on originalism but who are interested in exploring historical evidence of the meaning of constitutional provisions. There were liberals and conservatives (in rather different proportions than in legal academia generally), and there were well-known senior scholars as well as rising young academics.

Several of the presentations addressed interrelated questions about Congress’s power:  under the Commerce Clause, under the different subparts of the Necessary and Proper Clause, under Article I, section 8 generally, and under the 13th and 14th Amendments. Others explored methodological challenges that originalism faces. The discussion among the participants was both vigorous and civil—a model (so it seemed to me) of sound collegiality.

Congratulations to Michael Rappaport, Michael Ramsey, and Steven Smith, all of the University of San Diego law school’s Center for the Study of Constitutional Originalism, for making the conference such a success.

Just a reminder, too, of the Center’s Originalism Blog, which aims to be “a ‘one stop site’ for those who are interested in originalism from any perspective.”