Law & the Courts

Justice Thomas Lays Out an Originalist’s Perspective on Stare Decisis

Today the Supreme Court announced its decision in Gamble v. United States, in which it declined to overturn its longstanding view that the Double Jeopardy Clause does not prevent an individual from being prosecuted by both the state and the federal government — under each jurisdiction’s respective criminal laws — regardless of whether the state and federal offenses stem from the same conduct. In its decision, the Court found “the historical evidence assembled by” the defendant to be “feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent.”

Justice Clarence Thomas joined the Court’s decision and wrote a concurrence so he could separately address “the proper role of the doctrine of stare decisis.” He spelled out as explicitly as he has in his nearly 28 years of service why the current Court is wrong to “view[] stare decisis as a ‘principle of policy’ that balances several factors to decide whether the scales tip in favor of overruling precedent,” requiring (in the words of Planned Parenthood v. Casey (1992)) “a ‘special reason over and above the belief that a prior case was wrongly decided’ to overrule a precedent.” That approach “might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different.”

Here the Court’s role is set forth in Article III, § 1 of the Constitution, as the exercise of “judicial Power.” Citing two decisions by Chief Justice John Marshall, the Federalist Papers, and James Madison’s correspondence, Thomas explained,

That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particular “case” or “controversy” before the court. . . . It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” . . .

That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legislate). . . . The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” . . .

Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. . . . [It] is not the power to “alter” the law; it is the duty to correctly “expound” it.

Thomas recognized the pedigree of stare decisis in English common law but added that judges were long expected to correct erroneous precedent. Moreover, federal courts look to different sources of law than common-law courts: They “need not—and generally cannot—articulate the law in the first instance,” but are primarily bound by “three bodies of federal positive law—the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing ‘customs’ or ‘rules and maxims.’”

Since “the primary role of federal courts today is to interpret legal texts with ascertainable meanings,” Thomas summarized the weight of judicial precedent as follows:

[I]f the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.

Thus, “[w]hen faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” After all, judicial officers take an oath to support the Constitution, and “the Constitution . . . requires us to privilege its text over our own precedents when the two are in conflict.”

Still, precedent “may remain relevant when it is not demonstrably erroneous,” as when the indeterminacy of written law may lead reasonable jurists to arrive at different conclusions regarding a legal text’s original meaning. This case provided such an example. Thomas praised the “admirable job” done by Justice Neil Gorsuch, who dissented with an analysis of the double jeopardy question that explored among other things postratification legal treatises. Ultimately, however, he found those sources inconclusive about the understanding of the Fifth Amendment when it was ratified, leaving him unpersuaded “that our precedent is incorrect as an original matter, much less demonstrably erroneous.”

Thomas concluded his commentary on stare decisis by noting how his view would provide more certainty and stability to the law than the current Court’s “malleable balancing test.” For good measure, he added the “true irony . . . that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible.”

With significance well beyond the immediate issue in Gamble, Thomas’s concurrence is one of the most thoughtful expositions on judicial precedent to come from the bench in modern times. It should be required reading, especially for originalists exploring the doctrine of stare decisis.

Law & the Courts

This Day in Liberal Judicial Activism—June 18

1973—By a vote of five justices, the Supreme Court rules in United States v. SCRAP that plaintiffs, including a group of law students (“Students Challenging Regulatory Agency Procedures”), have standing to challenge the Interstate Commerce Commission’s decision not to suspend a 2.5% freight rate increase.

What is the alleged injury on which their standing is based? As the majority sums it up, the rate increase “would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area,” thus causing the plaintiffs economic, recreational and aesthetic harm. The majority even acknowledges that the case presents “a far more attenuated line of causation to the eventual injury” than in a case the previous year in which the Court found no standing, and it further observes that “all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. ”

1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

2004—A mere audience member at an American Constitution Society panel discussion on the forthcoming presidential election, Second Circuit judge Guido Calabresi can’t restrain himself. Calabresi begins his comments from the floor by acknowledging that he is “not allowed to talk politics,” but he quickly descends into a thinly disguised diatribe: “What the Supreme Court did in Bush v. Gore” was “exactly what happened when Mussolini was put in by the King of Italy” and “what happened when Hindenburg put Hitler in.” Of course, Calabresi is “not suggesting for a moment that Bush is Hitler.” But, “like Mussolini, he has exercised extraordinary power.” And “when that has happened it is important to put that person out [of office].”

A week later, Calabresi will apologize that his comments could reasonably have been understood to be partisan. In April 2005, the Judicial Council of the Second Circuit will confirm that Calabresi violated the canon of judicial ethics that provides that a judge “should not … publicly endorse or oppose a candidate for public office.”

Law & the Courts

Justice Thomas and Justice Ginsburg on Overruling Precedent

In its ruling today in Gamble v. United States, the Supreme Court, by a vote of 7 to 2, affirmed 170 years of precedent applying the dual-sovereignty doctrine to the Fifth Amendment’s Double Jeopardy Clause. As Justice Alito’s majority opinion sums up this doctrine, “a crime under one sovereign’s laws is not ‘the same offence’ [under the text of the Double Jeopardy Clause] as a crime under the laws of another sovereign.” In other words, the Double Jeopardy Clause does not bar a state from “prosecut[ing] a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” and vice versa.

I’m going to pass over the substantive debate between Justice Alito, on the one hand, and Justice Ginsburg and Justice Gorsuch, on the other. I’d instead first like to highlight Justice Thomas’s 17-page concurring opinion in which he addresses how the doctrine of stare decisis ought to be applied.

Thomas argues that the Court’s manner of viewing stare decisis as a judicial policy that balances several factors “might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law.” But “[w]e operate in a system of written law” in which “the systematic development of the law is accomplished democratically.” In such a system, “Our judicial task is modest: We interpret and apply written law to the facts of particular cases.”

It follows, Thomas argues, that “if the Court encounters a decision that is demonstrably erroneousi.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other facts support overruling the precedent.” (Emphasis added.) By contrast, federal courts “may (but need not) adhere to an incorrect decision” that is a “textually permissible interpretation of the law.” (Emphasis added.) The same principles, he says, should apply to both constitutional questions and statutory questions.

Thomas’s opinion (which my brief summary doesn’t do justice to—read the whole thing) should provoke a lot of discussion. Much criticism is likely to come from folks who think that his approach fails to give enough weight to stare decisis (or at least to the wrong precedents they hope to salvage). But I suspect that there will also be critics who lament that he would allow an incorrect decision to stand merely because it offers a “textually permissible” interpretation.

Meanwhile, Justice Ginsburg, in calling for the dual-sovereignty doctrine to be overruled, again departs from the alarmist tenor of the attention-grabbing dissent she joined last month. In that dissent, she and her fellow liberals warned that “Each time the Court overrules a case, the Court produces increased uncertainty” that could threaten the “necessary stability” of the law, and that the Court should therefore overrule precedent “only when the circumstances demand it.” Today, while acknowledging that the Court has “repeatedly embraced” the dual-sovereignty doctrine, she recites the usual proposition that stare decisis “is not an inexorable command” and offers her reasons why 170 years of precedent should be overturned.

Law & the Courts

Judicial-Nominations Update

The Senate held nine — yes nine — confirmation votes for judicial nominees last week, including votes for seven district-court nominees and two Court of Federal Claims nominees.  The confirmations are expected to continue this week, as Senate Majority Leader Mitch McConnell has filed for cloture to end debate on four additional district-court nominees. The Senate has confirmed 36 judicial nominees since January, including 25 district-court nominees and eleven circuit court nominees.

Also last week, the White House announced its intent to nominate three more federal judges, including Halil “Sul” Ozerden to the U.S. Court of Appeals for the Fifth Circuit.

Here is a full update on the status of President Trump’s federal judicial nominations:

Current and known future vacancies:  145

Courts of Appeals:  6

District/Specialty Courts*: 139

Pending nominees for current and known future vacancies:  60

Courts of Appeals: 2

District/Specialty Courts*:  58

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Dan Bress (9th) 2/6/2019 131 5/22/2019
Peter Phipps (3rd) 5/13/2019 35 6/5/2019

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor

 Nominees Awaiting Floor Votes: 28

Courts of Appeals: 0

District/Specialty Courts: 28

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 2
  • # of pending nominees originally nominated > 500 days ago: 2
  • # of pending nominees originally nominated > 400 days ago: 8
  • # of pending nominees originally nominated > 300 days ago: 27

Nominees Confirmed by the Senate during the 116th Congress: 36

Supreme Court: 0

Courts of Appeals: 11

District/Specialty Courts: 25

Nominees Confirmed by the Senate since Inauguration Day: 121

Supreme Court: 2

Courts of Appeals: 41

District/Specialty Courts: 78

Law & the Courts

This Day in Liberal Judicial Activism—June 17

Judge Rosemary Barkett.

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)

Law & the Courts

Machinations and Manipulations in the Census Case

Naturalization ceremony in Los Angeles, Calif., in 2013. (Mario Anzuoni/Reuters)

Before the Supreme Court wraps up its term this month, it is expected to issue a ruling in Department of Commerce v. New York (otherwise known as the Census case).  The case concerns Commerce Department Secretary Wilbur Ross’s decision to reinstitute a question about citizenship in the 2020 census.  Census authorities have been inquiring about citizenship status in one form or another for nearly all of the last 200 years, whether as a component of the decennial census or since 2005 as part of an annual survey that reaches a fraction of households.  Nonetheless, this latest decision was met by a court challenge.  The plaintiffs in the case (a collection of states, cities, counties, and civil rights groups) sued the Trump administration in federal district court, and Judge Jesse Furman, an Obama appointee, ruled in January that the citizenship question could not be used in the 2020 decennial census.  The Supreme Court took the unusual step of agreeing to hear the case on direct appeal from the district court.

Late last month (after the Supreme Court heard oral arguments), the plaintiffs wrote both the Supreme Court and the district court to claim they have new evidence—specifically, a file from the hard drive of a deceased Republican strategist named Thomas Hofeller that was turned over to the plaintiffs by Hofeller’s estranged daughter.

The plaintiffs claim that, contrary to the sworn testimony of government officials, Acting Assistant Attorney General John Gore relied on an unpublished 2015 study conducted by Hofeller in drafting the Department of Justice’s formal request to the Department of Commerce to reinstitute the citizenship question.  The plaintiffs allege that Hofeller “concluded in a 2015 study that adding a citizenship question to the 2020 census ‘would clearly be a disadvantage to the Democrats’ and ‘advantageous to Republicans and non-Hispanic Whites’ in redistricting,” and that Hofeller “helped ghostwrite a draft DOJ letter to Commerce requesting a citizenship question and providing the Voting Rights Act enforcement rationale for doing so.”

The “Voting Rights Act enforcement rationale” refers to the Commerce Department’s stated justification for adding the citizenship question to the census, which is that the Department of Justice requested citizenship data from the Commerce Department to support the DOJ’s enforcement of the Voting Rights Act—not because of any impermissible racial animus.  Secretary Ross issued a policy letter explaining his rationale and also testified before Congress about it.

Now plaintiffs say they have the equivalent of a smoking gun.  Even though the case is currently pending before the Supreme Court, the plaintiffs have sought sanctions against the DOJ in the district court, arguing that the government “concealed” the study, which the plaintiffs claim “strongly underscores the pretextual basis for the [government’s] decision to add a citizenship question to the 2020 Decennial Census.” Last week Judge Furman postponed ruling on the plaintiffs’ request for sanctions until the Supreme Court issues its decision and set an August deadline for briefs on the sanctions question.

And then on Thursday, the plaintiffs filed a motion with the Supreme Court requesting that the case be remanded to the district court for “inquiry and fact-finding into whether Dr. Hofeller’s partisan and racially discriminatory motives for adding a citizenship question were shared by, or should otherwise be imputed to, relevant Commerce officials, including the Secretary.”

The government has vigorously refuted the plaintiffs’ claim that Acting Assistant Attorney General Gore relied on the Hofeller study.  In its response to the plaintiffs’ motion to the district court, the government argued that the plaintiffs “provide[d] no evidence that Gore ever read, received, or was even aware of the existence of that unpublished study” and that “neither Hofeller nor his unpublished study played any role whatsoever in the drafting of the [] letter” that was the DOJ’s formal request to reinstate the citizenship question on the census.  Rather, the government asserts that the plaintiffs’ effort to reopen the case is nothing more than an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”  The government also correctly notes that the Hofeller study is irrelevant to the Supreme Court’s decision in this case, “because the critical issue in this APA case is whether the Secretary provided an objectively rational basis for his decision to reinstate the citizenship question,” and nothing in Hofeller’s personal files can resolve that legal issue (emphasis added). The Secretary provided a rational explanation for the reinstitution of the citizenship question, and the APA provides no justification for looking outside the closed record.

More fundamentally, the plaintiffs’ sideshow is irrelevant to the key question in the case, which is whether the plaintiffs have standing to sue in the first place.  The district court found that the plaintiffs had “associational standing” because some of their members receive funds from federal programs that are distributed based on census data.  But the government argues that the plaintiffs’ “alleged injuries will materialize only if unidentified third parties react to the citizenship question by illegally refusing to fully answer and return the census questionnaire in violation of federal law,” so they wouldn’t have standing.  At oral argument, the justices seemed to agree.  This is the nub: if the plaintiffs do not have standing, the case must be dismissed, making who devised the citizenship question irrelevant.

The plaintiffs’ request for a remand for fact-finding about supposed new evidence is nothing more than a desperate Hail Mary effort to prevent the Court from ruling on the case before the end of the term. With the deadline for printing the Census form fast approaching at the end of the month, this is an apt example of the old phrase, “Justice delayed is justice denied.”  The longer that the plaintiffs can keep litigating, the better, from their perspective.  And the plaintiffs’ specious allegations of misconduct by government officials is just window dressing for their bald-faced delay tactics.

Not surprisingly, the editorial board of the New York Times has joined the plaintiffs in their campaign for a delayed decision with a headline blasting, “Looks Like the Trump Administration Lied About the Census.”  As have myriad other left-wing columnists who are wringing their hands over the Supreme Court’s “legitimacy” were it to go ahead and rule in in the case.

There is no reason for the Supreme Court to remand this case. The facts and arguments that the Court needs to rule are squarely before it now, and it should do so this month.

Law & the Courts

This Day in Liberal Judicial Activism—June 15


1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.”

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

Law & the Courts

This Day in Liberal Judicial Activism—June 14

1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

Law & the Courts

The Left’s Secret Judges List

Law School Graduates Supreme Court
(Erin Schaff/Reuters)

Last weekend, the New York Times ran a story about “Building the Bench,” an initiative led by liberal dark-money groups preparing a secret list of judges in case a Democrat wins in 2020, and in turn the opportunity to pack the federal courts with progressive judges in a post-Trump Era.

Their goal is to copy the wild success of “The List,” President Trump’s novel initiative in 2016 to publicize the specific names of individuals he would nominate to Justice Scalia’s Supreme Court seat following the justice’s death.

The individuals on then-candidate Trump’s list were well-respected federal and state judges.  The list demonstrated to voters that Trump was a presidential candidate who cared deeply about the courts and rule of law, and would in turn nominate justices and judges who were committed to the rule of law. When he supplemented the initial list in September 2016, Trump vowed to “appoint justices who, like Justice Scalia, will protect our liberty with the highest regard for the Constitution.”

The List proved instrumental to President Trump’s eventual victory in 2016.  Exit polls showed that for one in five voters in the 2016 election, the Supreme Court was the top issue. Of that group, 57 percent voted for President Trump. And President Trump made good on his campaign promise, first nominating Justice Neil Gorsuch and later Justice Brett Kavanaugh to seats on the Supreme Court.

But there’s one big difference between President Trump’s List and this new liberal initiative: Trump’s list was public, but this new liberal list is being kept secret.

One of its principal organizers and sponsors is reportedly Alliance for Justice, a progressive group that has fought vigorously against President Trump’s judicial nominees at every turn, often smearing and misrepresenting their records. (Look back at my post about now-D.C. Circuit judge Neomi Rao if you need to refresh your recollection about the AFJ and their antics.)

According to the New York Times, “a number of other liberal advocacy groups and labor unions” are partnering with AFJ to put up Building the Bench. But no one knows who exactly these unnamed “liberal advocacy groups” are, what they want from our courts, or who is funding them. The AFJ has posted on its website a job posting for a counsel to help run Building the Bench. The posting notes that one of the necessary qualifications is “[e]xperience in civil rights, labor, consumer and/or constitutional law,” hinting that the list is probably dominated by lawyers who hold extreme views on everything from racial preferences and unions to the Second Amendment.  Do any of these “liberal advocacy groups” have interests before the Supreme Court? Seems likely.

Recently we have heard quite a bit about the idea of expanding the Supreme Court, with a number of Democratic presidential candidates warmly embracing the idea. Kamala Harris has said that she is “open to increasing the numbers on the Supreme Court,” as have Senators Elizabeth Warren and Kirsten Gillibrand. Pete Buttigieg has floated a proposal to expand the number of justices on the Court from nine to 15, with five Republican-appointed justices, five-Democrat-appointed justices, with those ten selecting the other five (a plan that is very clearly unconstitutional).  Beto O’Rourke has suggested a similar plan to Buttigieg’s. Other lesser-known candidates, such as Governor Jay Inslee, Andrew Yang, and Wayne Messam have also said they would be open to adding justices on the Court.

When a Court-packing plan was last proposed in 1937 by President Franklin D. Roosevelt, it was correctly viewed as an illegitimate attempt by Roosevelt to do an end-run around the Supreme Court and its cool reception to FDR’s New Deal legislation. But history has a way of repeating itself, and now 82 years later, the majority of 2020 Democrat contenders are chiming in to support the very radical idea of packing the court with political agenda-driven justices.  And now there is a new dark money group to aid in the process of identifying and vetting those potential justices.

So the question remains: Who is on the list?  Why are the Democratic candidates, and these groups, so afraid to say exactly who they would want to nominate to the Supreme Court?  What are they hiding?

Law & the Courts

This Day in Liberal Judicial Activism—June 13


1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction.

In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”

Some 17 months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

Law & the Courts

This Day in Liberal Judicial Activism—June 12

2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

Law & the Courts

This Day in Liberal Judicial Activism—June 11

1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.

The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled. And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

Law & the Courts

This Day in Liberal Judicial Activism—June 10

Former Chief Justice Earl Warren

1968—What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood, in his own words, as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds? In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds.

Law & the Courts

This Day in Liberal Judicial Activism—June 9


2008—With opinions about to be issued concerning the en banc petition in Ricci v. DeStefano, Second Circuit judge Sonia Sotomayor and her panel colleagues—fellow Clinton appointees Rosemary Pooler and Robert Sack—evidently realize that they have failed in their bid to bury the claims by 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. They therefore convert their nonprecedential summary order dismissing the firefighters’ claims into an otherwise virtually identical per curiam precedential ruling dismissing the claims.

Three days later, the Second Circuit issues an order denying en banc rehearing by a 7-6 vote. In a blistering dissent, Judge José Cabranes (also a Clinton appointee) condemns the panel’s mistreatment of the firefighters’ claims. As he sums it up:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

The Supreme Court proceeds to grant review and, one year later—while Sotomayor’s Supreme Court nomination is pending—reverses the panel decision.

Politics & Policy

A Party Switch that Triggered a Confirmation Landslide

Senator James Jeffords of Vermont announces that he is leaving the Republican party to become an independant, May 24, 2001. (Jim Bourg/Reuters)

In addition to the anniversary of D-Day, June 6 also marks the date on which Senator Jim Jeffords of Vermont switched parties to hand Senate control to the Democrats.

The year was 2001, and profound changes were already underway for the judicial-appointment process. Only a few weeks after President George W. Bush took office, Senate Democratic Leader Tom Daschle (S.D.) vowed to use “whatever means necessary” to fight his judicial nominations. In early May, Senate Democrats huddled with liberal law professors and strategists at a Florida retreat where, as the New York Times reported, “a principal topic was forging a unified party strategy to combat the White House on judicial nominees.”

And so a new chapter in confirmation obstruction began. The Jeffords switch made the early going a pretty easy lift. All that new Judiciary Committee Chairman Patrick Leahy (D-Vt.) had to do was . . . nothing. No hearing, no confirmation.

Just a month earlier, on May 9, Bush nominated eleven men and women to the U.S. Court of Appeals in circuits across the country. Priscilla Owen, nominated to the Fifth Circuit, received a unanimous well qualified rating from the American Bar Association. HEARING DENIED. John Roberts, nominated to the D.C. Circuit, also received a unanimous well qualified ABA rating. HEARING DENIED. When he was confirmed two years later, after Republicans regained Senate control, not a single senator voted against him.

Even a nationally respected constitutional scholar like Michael McConnell — yes, he also received a unanimous well qualified rating — was kept in limbo for 16 months before Leahy allowed a hearing. Like Roberts, McConnell was confirmed without any opposition.

Democrats also began slowing the confirmation process by forcing the Senate to take time-consuming roll call votes which require the presence of all senators. In Bush’s first term, the Senate took 131 roll call votes on judicial nominations, more than in the previous 212 years combined. The roll calls accomplished nothing; 89 percent of them were unanimous — that’s right, no opposition at all.

When Democrats returned to the minority in the 108th Congress, they began implementing the strategy developed at their May 2001 retreat. For the first time in history, the filibuster was used to defeat judicial nominees who would have been confirmed if allowed a final vote.

Today, under a new Republican president, Democrats are continuing their “whatever means necessary” strategy. At this point during the Barack Obama administration, only 14 percent of his judicial nominees had received even a single vote against confirmation; that figure has jumped to 75 percent for Trump nominees.

The average Senate Republican had voted against eight percent of Obama’s judicial nominees at this point, while the average Senate Democrat has voted against 43 percent of Trump’s judicial nominees.

Jeffords’s switch was more than one senator changing parties. It also triggered a radical change in the norms of the confirmation process.

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