Re: Tenth Circuit Requires Funding of Planned Parenthood

by Ed Whelan

A postscript to my Part 1 and Part 2 posts: I now see that Harvard law professor Noah Feldman, right on the heels of his misguided defense of Justice Ginsburg’s attack on Donald Trump, has praised the Tenth Circuit’s ruling.

Indeed, Feldman outdoes Judge Mary Beck Briscoe’s majority opinion in at least two respects.

First: Whereas Briscoe embraced the silly proposition that the Center for Medical Progress videos were “selectively edited,” Feldman falsely asserts that they were “doctored.”  

Second: Whereas Briscoe relied on her highly speculative assessment of how a jury would “more likely than not” view the evidence of Governor Herbert’s motivation, Feldman somehow sees fit to play factfinder himself and declares, flat-out, that Governor Herbert’s directive “stemmed from a generalized political desire to show solidarity with the antiabortion movement.” Feldman doesn’t bother to raise for his readers why Herbert didn’t act on that same supposed desire during his previous six years as governor.

Ground Beef

by Ed Whelan

That’s the groan-inducing title (my fault) of my review, in the new issue of National Review, of Michael J. Graetz’s and Linda Greenhouse’s The Burger Court and the Rise of the Judicial Right. The review is available to NR Digital subscribers here. My first two paragraphs:

By the standards of judicial conservatives, the so-called Burger Court — the Supreme Court presided over by Chief Justice Warren E. Burger from 1969 to 1986 — earns lots of poor marks. That Court invented, among other things, a supposed constitutional right to abortion in Roe v. Wade in 1973; struck down all existing death-penalty laws and then concocted a morass of confused standards to govern newly enacted laws on capital punishment; and paved the way for massive racial preferences by failing to give effect to federal statutes that bar discrimination on the basis of race. More broadly, the Court frequently adopted vague balancing tests that could be deployed to reach a broad range of results.

Law professor Michael J. Graetz and legal commentator Linda Greenhouse have a very different beef, so to speak, with the Burger Court, and they grind their beef throughout their sometimes interesting, sometimes tedious book. They claim that the Burger Court enjoyed much more success than has been realized in carrying out a “counterrevolution” against the historic liberal activism of the Court under Burger’s predecessor, Earl Warren. They also contend, as the second half of their title suggests, that the Burger Court “played a crucial role in establishing the conservative legal foundation” for what they label “the even more conservative Courts that followed.”


This Day in Liberal Judicial Activism—July 15

by Ed Whelan

2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.

Ruth Bader Ginsburg Still Doesn’t Get It

by Carrie Severino

Being Associate Justice Ruth Bader Ginsburg means never having to say you’re sorry. 

Today, after the firestorm caused by her comments in three – three – recent interviews in which she speculated about how some justices would vote, breached the confidentiality of the Supreme Court conference, and even telegraphed how she would vote in future cases, Ginsburg issued the most tepid of apologies today: “On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.”

It’s too little too late from a justice who politicized her job at the Supreme Court long before she launched her career in punditry last week. Letting the New York Times editorial page dictate the substance of her apology may satisfy left-wing groups, but it can’t undo the damage to the Supreme Court’s reputation for impartiality.

Ginsburg seems truly incapable of recognizing how much damage she’s done. She didn’t say a thing about the other offenses, like her comments on the Garland nomination, spilling the beans about other justices’ positions in conference and her slams on the late Justice Scalia. Her inability to acknowledge the gravity of her other offenses should put to rest the idea that she is anything other than the most hackish of political hacks.

At this point, she might as well hang up the black robe. She’s not fooling anyone anymore. 

Ginsburg’s Regret

by Ed Whelan

Justice Ginsburg has finally recognized that she was wrong to attack Donald Trump (an attack that she carried out in at least three separate interviews):

On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them. Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect.

Some quick comments:

1. Good for her, I suppose—though I might prefer to be able to continue to give her credit for being consistent, both in her judicial decisionmaking and in her public statements, in failing to respect the line between judging and politics.

2. I agree with legal ethicist Stephen Gillers and others that she can’t “unring the bell.” In other words, the recusal obligations that she has incurred as a result of her comments continue to exist. (In my judgment, she is obligated to recuse, at a minimum, from any matter that materially involves Donald Trump’s electoral interests in the current campaign.)

3. Ginsburg did not express any regret for the other inappropriate comments she made—most especially, her criticism (see point 2 here) of Senate Republicans for not acting on the Garland nomination.

4. Some folks wove elaborate theories about how thoughtfully strategic Ginsburg was being in challenging what she saw as Trump’s existential threat. Among other flaws, those theories couldn’t explain why Ginsburg was being a blabbermouth on multiple fronts, and they also failed to deal with the pedestrian quality of Ginsburg’s attacks on Trump (e.g., “faker,” “really has an ego,” “How has he gotten away with not turning over his tax returns?”).

5. I’m no fan of Trump’s, but I would find it very amusing if (as seems likely) Ginsburg’s attack on him ends up having helped him.

Tenth Circuit Requires Funding of Planned Parenthood—Part 2

by Ed Whelan

Let’s move past Judge Mary Beck Briscoe’s Huffington Post flacking for Planned Parenthood and turn to the reasoning in her majority opinion.

In order to obtain a preliminary injunction, a plaintiff must establish (among other things) that it is likely to succeed on the merits of its complaint. Briscoe’s majority opinion concludes that PPAU is likely to succeed on its two “unconstitutional conditions” claims—its claims that Utah’s termination of funding improperly penalized its exercise of its (1) First Amendment free-speech and associational rights, and (2) Fourteenth Amendment right to provide abortion services.

The central question, as the majority opinion puts it, is “whether PPAU can establish that [Utah governor] Herbert issued the Directive [to terminate funding] in retaliation for PPAU’s exercise of those rights.” (Slip op. at 31 (emphasis added).) The majority acknowledges that there’s ample evidence on which a jury could find that Herbert did not act in retaliation for PPAU’s exercise of its constitutional rights but instead issued the Directive because he “mistakenly believed that PPAU [as distinct from other Planned Parenthood affiliates] was implicated in the CMP videos and deserved to be punished for its apparent misconduct.” (Pp. 32-33.) But the majority concludes that on the totality of the evidence—including the governor’s participation in a pro-life event—a jury “is more likely than not” to find that Herbert did act “to punish PPAU for [exercise of its] First and Fourteenth Amendment rights.” (P. 35.)

The majority’s reasoning about how a jury would assess the evidence is highly speculative and hardly seems the stuff of which preliminary injunctive relief is made. Can a plaintiff really establish a likelihood of success on the merits when a jury has ample discretion to read the evidence in various ways? And how does the “abuse of discretion” standard of review entitle the Tenth Circuit majority to override the district court’s assessment that the evidence fell short?

The majority’s reasoning about the evidence also makes little sense. PPAU exercised those same First and Fourteenth Amendment rights for the first six years of Herbert’s time as governor, and he never took any action against it. It was only after the CMP videos were released that he canceled the contracts. Further, his contemporaneous statement to the press about the Directive refers specifically to the videos: “[w]e now have video where they’re selling fetus body parts for money and it’s an outrage.” If a court, at the preliminary-injunction stage, has any business concluding that a jury is merely “more likely” to adopt one reading of the evidence rather than another, how is the Tenth Circuit’s judgment about which is “more likely” at all sensible?

Tenth Circuit Requires Funding of Planned Parenthood—Part 1

by Ed Whelan

Last August, in the aftermath of the Center for Medical Progress’s release of videos depicting various Planned Parenthood affiliates’ ugly involvement in harvesting body parts, Utah governor Gary Herbert directed state agencies “to cease acting as an intermediary for pass-through federal funds” to Planned Parenthood Association of Utah (Planned Parenthood’s Utah affiliate).

In a 2-1 decision on Tuesday, a Tenth Circuit panel in Planned Parenthood Association of Utah v. Herbert ruled that PPAU is entitled to a preliminary injunction preventing the state of Utah from implementing Herbert’s directive. The panel reversed the district court’s denial of preliminary injunctive relief.

I’ll address the legal defects in Judge Mary Beck Briscoe’s majority opinion in my Part 2 post. I’d like to highlight here that the “Factual background” part of her opinion reads in places like a Planned Parenthood press release. Briscoe states, for example, that CMP “released ‘selectively edited videos of Planned Parenthood staff members discussing the health care provider’s fetal tissue donation program.’ [App.] at 398.” (Emphasis added.) She likewise states:

According to the limited information available in the record, to date none of these investigations have “turned up . . . evidence that Planned Parenthood was doing anything other than receiving legal reimbursements for the cost of processing the donations” of fetal tissue. App. at 398. (Emphasis added.)

As Mollie Hemingway has tirelessly explained, “All news, whether broadcast or print, is ‘highly’ and ‘selectively’ edited” and “Both the full footage and the edited cuts were released at the same time and all the videos are publicly accessible.” Further, in haggling over the prices of the body parts that its abortions—oops, “health care” services—generate, Planned Parenthood hardly seems to be engaged in a “donation program.” And the videos themselves provide at least prima facie evidence (as Hemingway discusses here and elsewhere) that Planned Parenthood wasn’t looking simply to be reimbursed for “the cost of processing” these “donations.”

But what also struck me about these passages is Briscoe’s mysterious citation of “App. at 398.” What possible document in PPAU’s appendix to its brief might Briscoe be citing as authoritative on these matters? And why does she give the reader (who has no access to PPAU’s appendix) no clue what that document is? Why would Briscoe, a Clinton appointee who has been on the Tenth Circuit for more than two decades, be so strangely sloppy?

Well, it turns out that what Briscoe is obscurely citing as authoritative is this article from—believe it or not—the Huffington Post. (Here’s the four-page version from PPAU’s appendix that I’ve managed to obtain. You’ll see “App.398” in the lower right on the first page.) No wonder she didn’t identify the source.

These statements of Briscoe’s, I’ll acknowledge, appear to be extraneous to her legal analysis. But that simply presents the puzzle why she went out of her way to provide political cover for Planned Parenthood.

This Day in Liberal Judicial Activism—July 14

by Ed Whelan

1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson, rules (in Ferdon v. Wisconsin Patients Compensation Fund) that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.