Law & the Courts

Forceful Dissent from Ninth Circuit Order Allowing Ban on In-Person Religious Services

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In a ruling Friday in South Bay United Pentecostal Church v. Newsom, a divided panel of the Ninth Circuit denied a church’s challenge to state and county orders barring in-person religious services. Judge Daniel Collins forcefully dissented.

Collins rejected California’s “extraordinary claim that the current emergency gives the Governor the power to restrict any and all constitutional rights, as long as he has acted in ‘good faith’ and has ‘some factual basis’ for his edicts.” The Supreme Court’s 1905 ruling in Jacobson v. Massachusetts does not, he argued, “support[] the view that an emergency displaces normal constitutional standards. Rather, Jacobson provides that an emergency may justify temporary constraints within those standards.” (Emphasis in original.) Therefore, the church’s challenge must be evaluated under the traditional framework that governs Free Exercise claims.

Under that traditional framework, the first question in addressing a Free Exercise claim is whether the challenged restrictions are neutral and generally applicable. Here, the restrictions, Collins explains, explicitly discriminate against religious conduct and are therefore not neutral:

In framing its restrictions in response to the pandemic, California did not purport simply to proscribe specific forms of underlying physical conduct that it identified as dangerous, such as failing to maintain social distancing or having an excessive number of persons within an enclosed space. Instead, Executive Order N-33-20 presumptively prohibited California residents from leaving their homes for any reason, except to the extent that an exception to that order granted back the freedom to conduct particular activities or to travel back and forth to such activities.

As set forth by the State, the four-stage Reopening Plan assigns “retail (curbside only), manufacturing & logistics” to the initial portion of “Phase 2,” and in-store retail, “child care, offices & limited hospitality, [and] personal services” to a later portion of Phase 2…. By contrast, “religious services” are explicitly assigned to a “Stage 3” that also includes “movie theaters” and other “personal & hospitality services.”

By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services —the State’s Reopening Plan undeniably discriminates on its face against religious conduct. [Some quotation marks omitted.]

The restrictions are also not generally applicable but instead create a “highly reticulated patchwork of designated activities and accompanying guidelines.”

The restrictions therefore can survive only if they satisfy strict scrutiny, but, Collins determines, they plainly don’t:

The State’s undeniably compelling interest in public health could be achieved by narrower regulations that burdened religion to a far lesser degree. As Plaintiffs have reiterated throughout these proceedings, they will comply with every single guideline that other businesses are required to comply with. [Some quotation marks omitted.]

Law & the Courts

This Day in Liberal Judicial Activism—May 24

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(Brendan McDermid/Reuters)

 2016—Federal district judge Michael H. Watson rules (in Ohio Organizing Collaborative v. Husted) that an Ohio law that altered the period for early in-person voting from 35 days before Election Day to 29 days before Election Day violates the Equal Protection Clause and the Voting Rights Act.

Three months later, a divided panel of the Sixth Circuit (with Obama appointee Jane Branstetter Stranch in dissent) will reverse Watson’s ruling. In his majority opinion, Judge David McKeague explains that the Ohio law “applies even-handedly to all voters” and “continues to provide generous, reasonable, and accessible voting options to Ohioans.” Indeed, Ohio “is a national leader when it comes to early voting opportunities,” and “a third of the states offer no early voting.” McKeague labels “astonishing” the proposition that Ohio’s previous law “established a federal floor that Ohio may add to but never subtract from.” Such a proposition “would discourage states from ever increasing early voting opportunities, lest they be prohibited from later modifying their election procedures in response to changing circumstances.”

Law & the Courts

This Day in Liberal Judicial Activism—May 23

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A member of the New York Police Department stands outside a Planned Parenthood clinic in N.Y., November 28, 2015. (Andrew Kelly/Reuters)

1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

2016—In Planned Parenthood of Greater Ohio v. Hodges, federal district judge Michael R. Barrett (a Bush 43 appointee) grants Planned Parenthood affiliates in Ohio a temporary restraining order against an Ohio law that directs the state department of health to “ensure” that funds it receives through six programs not be used to perform or promote nontherapeutic abortions or to contract with any entity that performs or promotes such abortions. Overlooking that the state law provides two separate and independent bases for the state department of health not to fund the Planned Parenthood affiliates, Barrett fails to respect longstanding Supreme Court precedents holding that there is no constitutional right to government funding of the performance of abortions.

In 2019, the en banc Sixth Circuit will rule that the Ohio law is constitutionally permissible.

Law & the Courts

This Day in Liberal Judicial Activism—May 22

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A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, U.S., June 14, 2019 (Jonathan Ernst/Reuters)

1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

2015—First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”

Law & the Courts

‘Female Justices Were Allowed Longer Average Questioning Periods Than Male Justices, Study Says’

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The headline of this post would be an alternative—and, as I will discuss, perhaps a more reliable—takeaway from a study by law professor Leah Litman of the Supreme Court’s recent telephonic arguments, but it’s obviously not as attention-grabbing as the National Law Journal’s story titled “Female Justices Were Cut Off More Than Colleagues During Phone Arguments, Study Says.”

Litman reports that over the course of the ten telephonic oral arguments the Chief Justice “ended questioning periods a total of 158 times, either by interrupting someone or by saying ‘thank you’ after an advocate paused.” By her count, the Chief Justice interrupted other justices only 11 times, and nine of these 11 interruptions were of female justices. She finds that an unusual disparity compared to who had the longest “questioning periods.”

It seems to me, though, that Litman is using a dubious benchmark. You’d expect the Chief Justice’s interruptions to correlate with how often a justice begins asking a question after the justice’s allotted question time has expired. That is not the same metric as what Litman calls a justice’s “questioning period”—which she defines as “the amount of time each Justice received to ask questions and have them answered.” (Emphasis added.)

To illustrate the difference: Assume that each justice is allotted three minutes for each round of questioning. (As I understand it, the actual allotment varied by case depending on the number of advocates.) Justice X completes a question with ten seconds left in the round, and the advocate proceeds to take forty seconds to answer it. Justice Y tries to ask a question after the three minutes have expired, and the Chief Justice interrupts Justice Y. Justice X would have a longer “questioning period,” but of course there would have been no occasion for the Chief to interrupt Justice X.

It might well be that some justices did a better job than others of keeping track of their own time and were adept at getting questions in under the wire. If so, there could well be a large disparity between average questioning period (or number of long questioning periods) and number of times interrupted by the Chief. It’s also possible, of course, that the metric I propose would yield the same disparity that Litman found.

On my alternative headline: Litman reports that Gorsuch and Sotomayor tied for first in “average time allowed to speak per questioning period they used,” with Kagan in fourth place and Ginsburg in seventh. The average time allowed per questioning period for the female justices was 189 seconds, versus 183 seconds for the male justices. I’m not going to maintain that this difference is statistically significant (though Litman herself argues that “small differences matter”), but it does cut rather sharply against a general claim that the Chief Justice was unfair to the female justices.

Law & the Courts

The Court Should Fix This Gap in Free-Speech Law

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Free speech is not free if the government can force you to say things you disagree with. That is the principle behind the Supreme Court’s ruling in Janus v. AFSCME (2018) that public-sector workers cannot be forced to pay for a labor union’s speech.

The same idea is being litigated in the context of state bar associations in Jarchow v. State Bar of Wisconsin. There two Wisconsin attorneys are challenging the requirement that those who practice law in the state join the State Bar of Wisconsin and financially support its speech. The bar is one of the state’s most powerful lobbying organizations. It seeks to influence legislation leftward on a wide range of ideologically charged issues, including the death penalty, abortion, felon voting, campaign finance, LGBT issues, and tax reform. And it throws in plenty of criticism of President Trump.

A state forcing nonconsenting attorneys to support any such speech as a condition of having their law licenses is no more acceptable than public sector unions deducting their own fees from the paychecks of nonconsenting workers. But this case has made its way as a cert petition before the Supreme Court, because while Janus arose in the context of labor unions, there is older precedent that provides at least some support to Wisconsin’s scheme.

In Lathrop v. Donohue (1961), a fragmented Court upheld mandatory bar dues in another case arising out of Wisconsin. Justice Hugo Black dissented, and he wrote the following to rebut the notion that law practice was a “privilege” justifying the dues obligation:

The mere fact that a lawyer has important responsibilities in society does not require or even permit the State to deprive him of those protections of freedom set out in the Bill of Rights for the precise purpose of insuring the independence of the individual against the Government and those acting for the Government.

Nearly three decades later, the Court in Keller v. State Bar of California (1990) would similarly uphold a mandatory bar dues requirement, resting less on its own reasoning than on Lathrop and a more recent precedent that arose in the context of labor unions, Abood v. Detroit Board of Education (1977).

It was enough for Abood that unions provide a procedure for objections to be raised to fees that specifically go toward advocacy. But that unworkable paradigm was rejected by Janus, which overruled Abood. This leaves a contradiction in existing free-speech law between the state bar context and the labor union context. That inconsistency is even more stark when we consider that Wisconsin lawyers are required to be formal members of the bar while the public-sector worker who sued in Janus did not have to join the union that charged him.

Keller was right about one thing: The same principles that apply to labor unions should also apply to state bars. So the overruling of Keller should logically follow the overruling of Abood. But because this is a precedent of the Supreme Court, lower courts cannot do it. That is why the Court should grant the cert petition in Jarchow to correct this anomaly in free speech law. Hopefully it will decide to do so at its private conference tomorrow, when the petition is expected to come up.

Law & the Courts

En Banc Sixth Circuit Vacates Rogue Panel Ruling on ‘Fundamental Right to a Basic Minimum Education’

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In an order yesterday, the en banc Sixth Circuit granted rehearing of the highly adventuresome panel decision last month that held that the Constitution “provides a fundamental right to a basic minimum education.” Kudos to Judge Eric E. Murphy, who persuasively dissented from the panel decision.

The en banc order vacates the panel decision, so that decision will have no precedential effect. There remains a question whether the settlement that plaintiffs rushed to reach with Michigan governor Gretchen Whitmer in the wake of the panel decision means that the en banc court, once formally notified of the settlement, will dismiss the appeal or whether the Michigan legislature, which is seeking to intervene in the case, has a stake that keeps the matter alive.

Law & the Courts

Distorted Attack on Federalist Society and 200-Judge Letter

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In an op-ed today in the New York Times, Caroline Frederickson and Eric Segall contend that the controversy over the draft advisory opinion on judicial membership in the Federalist Society and the American Bar Association “has shown beyond doubt  … that the Federalist Society has distorted how it actually operates.” But it’s their own op-ed that is replete with distortions.

1. Frederickson and Segall take issue with the Federalist Society’s statement that it does not “sponsor or endorse nominees and candidates for public service.” For starters, this is a bizarre ground on which to defend the draft opinion’s disparate treatment of the Federalist Society and the ABA, as the ABA has long done formal ratings of all federal judicial nominations.

But Frederickson and Segall don’t undertake to show that the Federalist Society as an institution sponsors or endorses nominees and candidates for public service. Instead, they impute to the Federalist Society actions taken by Leonard Leo in his individual capacity, including when on leave from the organization, as well as actions taken by “an immensely influential but largely unseen network of conservative organizations, donors and lawyers” at whose “nexus” Leo is said to “sit.” (Ouch. That must be uncomfortable for him.)

But the White House under presidents of both parties has routinely received informal advice on judicial nominations from lots of people. It’s quite a leap to maintain that their advice is to be imputed to their employers, even more so to others who are said to be in their “network.” Are Segall’s views to be charged to the law school that employs him? Are the law firms whose attorneys formally take part in the ABA’s judicial-evaluations process accountable for the votes of those attorneys?

2. Frederickson and Segall label “highly unusual” the letter from 200-plus judges in response to the draft opinion. They don’t disclose, though, that the Committee on Codes of Conduct that drafted the opinion invited judges to offer their comments on the draft. Nor do they see fit to note the fact, inconvenient to their narrative, that the signatories include some prominent appointees of Democratic presidents (e.g., Second Circuit judge José Cabranes).

Frederickson and Segall also contend that in stating that “it is simply not true that the Federalist Society takes legal or policy decisions,” the 200-judge letter was “[s]ignificantly … silent on whether the group supports nominees for public service.” But it is odd to read the judges’ statement as being silent on that question. The 200-judge letter makes the quoted statement in the context of responding to the draft opinion’s assertion that the public reasonably “would view judges holding membership [in the Federalist Society] to hold, advocate, and serve … conservative interests.” In context, the judges’ statement that the Federalist Society does not take legal or policy decisions is fairly understood to include the legal or policy decisions on who ought to be nominated for judgeships.

(As I’ve made clear from the outset, I won’t quarrel with anyone who maintains that federal judges shouldn’t be members of the Federalist Society or the ABA. Whether or not that is the best reading of the Code of Conduct, I think that it’s a plausible one. What strikes me as indefensible, and what I haven’t seen anyone even attempt to offer a defense of, is the draft opinion’s conclusion that judges can’t be members of the Federalist Society but can be members of the ABA.)

Law & the Courts

This Day in Liberal Judicial Activism—May 20

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Supreme Court Associate Justice Anthony Kennedy speaks during a swearing in ceremony for Judge Neil Gorsuch as an associate justice of the Supreme Court in the Rose Garden of the White House, April 10, 2017. (Carlos Barria/File Photo/Reuters)

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”

Law & the Courts

This Day in Liberal Judicial Activism—May 19

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(Pixabay)

2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other … and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunk rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex.

Law & the Courts

Re: Title VII, Compositionality and ‘Discriminate Against’

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Three weeks ago, I highlighted an interesting new paper by James C. Phillips, a scholar at Stanford law school’s Constitutional Law Center, that bears on the question whether Title VII’s bar on “discriminat[ion] against any individual … because of such individual’s … sex” bars discrimination on the basis of sexual orientation or gender identity. Phillips has called to my attention his response to a critique, so I direct interested readers to the exchange.

On Phillips’s rejoinder to the charge that he has “effectively incorporate[d] purpose into the very meaning of the words of the statute,” I’d simply add this passage from Justice Scalia:

The term purposivism suggests, wrongly, that its supposed antonym—namely textualism—precludes consideration of a text’s purpose. That is not so. It is untrue that a textualist judge must “put on blinders that shield the legislative purpose from view.” As we will demonstrate, the textualist routinely takes purpose into account, but in its concrete manifestations as deduced from close reading of the text. It is when an abstract purpose is allowed to supersede text that the result is what Justice Felix Frankfurter cautioned against: “interpretations by judicial libertines” who “draw prodigally upon unformulated purposes or directions.” [Reading Law: The Interpretation of Legal Texts 20 (co-authored with Bryan A. Garner).]

Law & the Courts

Dismissal of Smear Charge Against Judge Griffith, and More Puzzling Behavior by Chief Judge Srinivasan

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On Friday, D.C. Circuit judge Karen LeCraft Henderson issued an order dismissing Demand Justice’s scurrilous—and wildly hyped—charge that D.C. Circuit judge Thomas Griffith’s decision to retire might have been in exchange for a bribe. Judge Griffith publicly disclosed two weeks ago what was no surprise to anyone familiar with the D.C. Circuit: that he made his decision to retire in June 2019; that he informed his family and law clerks at the time; that he faced no political pressure to step down; and that his wife’s “debilitating chronic illness” was the “sole reason” for his retirement.

As Henderson states in the memorandum accompanying her order, Demand Justice “has provided nothing that calls into doubt the judge’s explanation of his decision.” Its complaint “rests entirely on unsupported speculation about the subject judge’s motives.” Because the complaint “is based on allegations lacking sufficient evidence to raise an inference that misconduct has occurred” (Henderson is quoting the applicable rule), it should be dismissed.

One curiosity of Friday’s order is that it was issued by Henderson rather than by D.C. Circuit chief judge Sri Srinivasan. As you’ll recall, Chief Justice Roberts rejected Srinivasan’s bizarre request to transfer Demand Justice’s complaint to another circuit. Srinivasan, evidently persisting in his ill-founded judgment that he couldn’t decide Demand Justice’s charge, disqualified himself from the matter and thus punted it to Henderson. (Henderson’s order has a footnote that explains that she is acting pursuant to the rule that applies when the “chief judge is disqualified.”)

Srinivasan’s disqualification is puzzling. First, the Rules for Judicial-Conduct and Judicial-Disability Proceedings contemplate that a circuit’s chief judge will ordinarily handle all misconduct complaints regarding his colleagues, so it’s difficult to see why this one would be an exception.

Second, Srinivasan in fact kept the complaint on his plate for six weeks or so: it was under his direction that (as his May 1 order states) the circuit executive’s office informed Demand Justice that it had failed to submit a proper complaint as it hadn’t filed it under penalty of perjury. (It appears that Demand Justice never remedied that defect.) It was only on the cusp of D.C. Circuit nominee Justin Walker’s hearing—a time that would garner the most attention—that Srinivasan tried to have the complaint transferred to another circuit and, in a departure from the ordinary practice of confidentiality, made public his effort to do so.

A cynic might suspect that Srinivasan’s actions can best be explained by his desire to curry favor with the Left in order to advance his prospects for a Supreme Court nomination by the next Democratic president. When Srinivasan was first advanced as a candidate for a D.C. Circuit vacancy in 2010, the Left defeated his candidacy, in part because of union animosity to his corporate clients in private practice, in part because, in his former capacity as an assistant to the Solicitor General, Srinivasan advocated the positions of the Bush administration on Guantanamo war-on-terror detainee issues. Srinivasan is conspicuously missing from Demand Justice’s long “shortlist” of 32 proposed Supreme Court candidates. Dismissing Demand Justice’s baseless complaint obviously wouldn’t win him any favors with the Left. By contrast, publicly asking to have it transferred at a time that would generate misguided hit pieces against the Walker nomination might.

Meanwhile, Demand Justice and Brian Fallon, after hyping their smear against Griffith for weeks, haven’t even acknowledged to their followers that their complaint has been dismissed. Nor, of course, have they apologized to Griffith.

Law & the Courts

This Day in Liberal Judicial Activism—May 18

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1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.

Reinhardt will remain in active status on the Ninth Circuit until his death in March 2018.

2017—The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.

The crystalline clarity of this provision somehow doesn’t stop federal district judge Joseph H. Leeson, Jr. In Blatt v. Cabela’s Retail, Inc., Leeson denies an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.

Among Leeson’s somersaults of reasoning: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

What?!? We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders?

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?

Law & the Courts

This Day in Liberal Judicial Activism—May 17

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Judge Martha Craig Daughtrey

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.”

Law & the Courts

This Day in Liberal Judicial Activism—May 16

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Federal district judge Jack B. Weinstein

2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling:

“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.”

Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling.

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The Makings of Modern Madness

The paradigm of mind–brain dualism, like the story of syphilis, is by no means virgin territory. However, Allan Ropper and Brian Burrell’s How The Brain Lost Its Mind: Sex, Hysteria, and the Riddle of Mental Illness puts both the legacy of dualism and the story of syphilis under the microscope, and offers a ... Read More

The Makings of Modern Madness

The paradigm of mind–brain dualism, like the story of syphilis, is by no means virgin territory. However, Allan Ropper and Brian Burrell’s How The Brain Lost Its Mind: Sex, Hysteria, and the Riddle of Mental Illness puts both the legacy of dualism and the story of syphilis under the microscope, and offers a ... Read More

The Party’s Over — No More Guest(worker)s

Last month's Presidential Proclamation temporarily suspending a tiny sliver of permanent immigration in response to Great Depression 2.0 also called for a review of the alphabet soup of foreign-worker programs. The relevant cabinet departments were instructed to offer recommendations "to stimulate the United ... Read More

The Party’s Over — No More Guest(worker)s

Last month's Presidential Proclamation temporarily suspending a tiny sliver of permanent immigration in response to Great Depression 2.0 also called for a review of the alphabet soup of foreign-worker programs. The relevant cabinet departments were instructed to offer recommendations "to stimulate the United ... Read More

Unsustainable America

Americans are having fewer babies than ever, or at least than since the government began tracking the general fertility rate in 1909. The total fertility rate ticked down to 1.7 in 2019, meaning that the average number of babies an American woman would have over her lifetime is well below replacement ... Read More

Unsustainable America

Americans are having fewer babies than ever, or at least than since the government began tracking the general fertility rate in 1909. The total fertility rate ticked down to 1.7 in 2019, meaning that the average number of babies an American woman would have over her lifetime is well below replacement ... Read More

Where Does Ron DeSantis Go to Get His Apology?

A  couple of months ago, the media, almost as one, decided that Governor Ron DeSantis was a public menace who was going to get Floridians killed with his lax response to the coronavirus crisis. In an interview with National Review, DeSantis says he was surprised at “how knee-jerk” the hostile coverage ... Read More

Where Does Ron DeSantis Go to Get His Apology?

A  couple of months ago, the media, almost as one, decided that Governor Ron DeSantis was a public menace who was going to get Floridians killed with his lax response to the coronavirus crisis. In an interview with National Review, DeSantis says he was surprised at “how knee-jerk” the hostile coverage ... Read More

John Wayne: The Hero We Need Now

America fits into John Wayne's filmography, and this does not make America small. It makes John Wayne huge. The coronavirus has brought us back to the Wild West. Lonely lives, deserted streets, looks of distrust, and whiskey for throat disinfection; the scientific community has not made an official statement as ... Read More

John Wayne: The Hero We Need Now

America fits into John Wayne's filmography, and this does not make America small. It makes John Wayne huge. The coronavirus has brought us back to the Wild West. Lonely lives, deserted streets, looks of distrust, and whiskey for throat disinfection; the scientific community has not made an official statement as ... Read More

Michigan Governor Extends Stay at Home Order to June 12

Michigan Governor Gretchen Whitmer extended the state's stay at home order on Friday to last until June 12 even as she faces pushback from Republican state lawmakers and some residents over the social distancing restrictions aimed at controlling the spread of the coronavirus. “While the data shows that we ... Read More

Michigan Governor Extends Stay at Home Order to June 12

Michigan Governor Gretchen Whitmer extended the state's stay at home order on Friday to last until June 12 even as she faces pushback from Republican state lawmakers and some residents over the social distancing restrictions aimed at controlling the spread of the coronavirus. “While the data shows that we ... Read More

Biden’s Progressive Gamble

A few hours after this column appears on the Internet, more than 30 liberal activists will meet online to plan your future. The gathering is called the “Friday Morning Group.” It comprises, according to the New York Times, “influential figures at labor unions, think tanks and other progressive ... Read More

Biden’s Progressive Gamble

A few hours after this column appears on the Internet, more than 30 liberal activists will meet online to plan your future. The gathering is called the “Friday Morning Group.” It comprises, according to the New York Times, “influential figures at labor unions, think tanks and other progressive ... Read More

‘Professor Lockdown’ Modeler Resigns in Disgrace

Neil Ferguson is the British academic who created the infamous Imperial College model that warned Boris Johnson that, without an immediate lockdown, the coronavirus would cause 500,000 deaths and swamp the National Health Service. Johnson’s government promptly abandoned its Sweden-like “social ... Read More

‘Professor Lockdown’ Modeler Resigns in Disgrace

Neil Ferguson is the British academic who created the infamous Imperial College model that warned Boris Johnson that, without an immediate lockdown, the coronavirus would cause 500,000 deaths and swamp the National Health Service. Johnson’s government promptly abandoned its Sweden-like “social ... Read More