Law & the Courts

Sotomayor’s Shoddy Dissent in Kennedy v. Bremerton


Justice Sotomayor’s dissent in Kennedy v. Bremerton is as shoddy as its first sentence, where she uses deceptive wordplay to recast Coach Kennedy’s quiet post-game prayer at midfield as “say[ing] a prayer at the center of a school event.” No, the fact that Kennedy prayed at the 50-yard line after the game was over did not make his prayer “at the center of a school event.”

It gets much worse. Sotomayor refuses to focus on the actual grounds that the school district identified for disciplining Kennedy. As Justice Gorsuch’s majority opinion explains, “The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015.” Sotomayor does not dispute this. She complains instead that by looking only to the grounds that the school district “articulate[d],” the majority “errs by assessing [the district’s Establishment Clause concerns] divorced from the context and history of Kennedy’s prayer practice.”

As Gorsuch’s majority opinion spells out, for over seven years no one complained to the school district about Kennedy’s pre-game and post-game practices (which took different forms over time). When the school district in September 2015 did object to Kennedy’s post-game “inspirational talks” with “overtly religious references,” Kennedy complied by ending those talks.

Under Sotomayor’s contextual assessment, it doesn’t matter that Kennedy stopped giving post-game talks with religious content, and it doesn’t matter that the school district stated that it was disciplining Kennedy only for (in Gorsuch’s summary) “praying quietly without his players after three games in October 2015.” What this means is that Sotomayor would treat Kennedy differently from another coach with no history of prayer practice who started praying quietly without his players at midfield. Kennedy’s prayers would somehow violate the Establishment Clause, while the other coach’s identical conduct wouldn’t. What sense does that make, especially when the district itself didn’t invoke Kennedy’s past practice against him?

Sotomayor has also gotten a lot of attention for including in her dissent three photos that the usual suspects misinterpret as somehow refuting Gorsuch’s statement of the facts. Oddly, Sotomayor does not discuss the photos and thus invites the misinterpretations.

The first photo (on page 5 of her dissent) shows Coach Kennedy in a prayer circle with players from both teams. Unlike with the other two photos, Sotomayor doesn’t include a date in the photo’s caption, so only a careful reader will know that it came from the time that Kennedy was giving post-game talks (i.e., before he received the school district’s directive in September 2015), not from any of the three games for which the school district punished Kennedy.

The second photo (on page 9) shows Coach Kennedy in a prayer circle surrounded by players, and it bears the date of October 16, 2015—the first game for which Kennedy was punished. But only the careful reader will discern that all of the players surrounding Kennedy are “from the opposing team” (as Sotomayor states on the previous page). So any suggestion that he coerced them to join him would be absurd.

The third photo, on page 10, shows Coach Kennedy in a prayer circle without any players, but with some players in the background. The caption states that it is from October 26 (after the third game). Sotomayor’s text preceding the photo states that “The BHS [Bremerton High School] players, after singing the fight song, joined Kennedy at midfield after he stood up from praying.” (Emphasis added.) I’m reliably informed that the players in the background of the photo, in white jerseys, are from the opposing team, not from Bremerton High. In any event, even if that weren’t so, I don’t see how she thinks that the photo helps her argument.

Even if the “endorsement” test that Sotomayor invokes were a sound interpretation of the Establishment Clause, how and why would an objective observer, on a proper presentation of the facts, think that the school district was endorsing religion by allowing Coach Kennedy to say a quiet prayer at midfield after a football game? How and why would the fact that no players from his team joined him for any of the prayers after the three games suggest that players felt coerced to join those prayers?

Law & the Courts

Coach Kennedy’s Win Off the Field


Yesterday saw yet another big victory for religious liberty at the Supreme Court. And a win for high school football coach Joseph Kennedy. For kneeling after games on the 50-yard line and saying a quiet personal prayer, the school district placed him on administrative leave and advised against rehiring him.

Kennedy conducted his prayers for over seven years before the school district’s superintendent apparently learned of his practice in 2015 and tried to stop it. He initially prayed alone, but players would eventually ask to join him, to which he replied, “This is a free country. You can do what you want.” He also offered (in a tradition predating him) locker-room prayers and incorporated prayer or religious references into postgame motivational talks to his team, both practices he ended after being directed by the district to avoid such “religious expression, including prayer.”

There were ultimately several occasions on which the district ordered Kennedy to desist in his religious expression. The coach, trying to work with his employer, made the modest request to be able to offer a short prayer on the field while students were occupied with other activities such as boarding the bus or singing the school fight song, but the district would not budge. He was disciplined for saying such prayers, quietly and in the absence of his students, after three games. The record made clear that Kennedy was disciplined solely for persisting in such prayer, with the district admitting it was restricting his actions at least in part because of their religious character.

Writing for a 6–3 Court in Kennedy v. Bremerton School District, Justice Neil Gorsuch wrote that the school had violated both Kennedy’s free exercise as well as his free speech rights. “Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities,” Gorsuch wrote. “That the First Amendment doubly protects religious speech is no ac­cident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dis­sent.”

The Free Exercise Clause was implicated because the school was targeting the religious character of the coach’s actions and because it failed to set generally applicable standards. Other members of the coaching staff were permitted for brief periods after games “to do things like visit with friends or take personal phone calls.”

Kennedy’s prayer was private expression in his capacity as a private citizen, which was key to carrying his threshold burden to make his free speech claim. As the school district admitted, “Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities,” but he used that time to pray.

Since Kennedy met his threshold under both clauses, the school district needed to demonstrate that its restrictions served interests that would satisfy either strict scrutiny or a more lenient standard of review. The Court found that the district did not satisfy its burden regardless of which test applied.

The school district’s attorneys misconstrued Kennedy’s prayers as government speech that violated the Establishment Clause, which they argued trumped any protection they otherwise might have under the Free Exercise and Free Speech Clauses, and thus required the imposed restrictions. Yet as Gorsuch noted, the three clauses appear in the same sentence and “would seem to . . . have ‘complementary’ purposes, not warring ones.”

That describes the textual problem with the school district’s argument, also made by the three liberal justices in a dissent by Justice Sonia Sotomayor, that Kennedy was violating the Establishment Clause. “The Constitution does not authorize, let alone require, public schools to embrace this conduct,” Sotomayor asserted. According to that argument, Gorsuch countered, the Court should “adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression.” The argument drew from the ahistorical test the Court used to apply, established by Lemon v. Kurtzman (1971). But Gorsuch noted that the Court “long ago abandoned” the defunct, ahistorical Lemon test and replaced that test with a command to interpret the Establishment Clause in light of its “original meaning and history.”

The district and the dissent also argued that because Kennedy was an authority figure, his students might feel coerced to pray alongside him—which none of them did during the three games for which he was disciplined. “Mr. Kennedy’s private reli­gious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion,” Gorsuch observed. What was coercive, of course, was the boorish behavior of school administrators who refused to make a simple accommodation.

Yesterday the Court struck the right balance between the various First Amendment interests that were implicated and added yet another case to its decade-plus stretch of decisions affirming the religious liberty protections guaranteed by the Constitution.

An important part of the Court’s message is that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” Hopefully, after yesterday’s win in court, Coach Kennedy will have the opportunity to achieve many more wins on the football field.

Law & the Courts

This Day in Liberal Judicial Activism—June 28


1971—In an opinion by the jurisprudentially rudderless Chief Justice Warren Burger, the Supreme Court in Lemon v. Kurtzman concocts an ahistorical and highly malleable test for Establishment Clause violations. Under the Lemon test, a law satisfies the Establishment Clause only if it has a secular purpose, has a principal or primary effect that neither advances nor inhibits religion, and does not cause an entanglement of government with religion. 

Two decades later, Justice Scalia will liken the Lemon test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” He adds: 

“The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs ‘no more than helpful signposts.’ Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.” 

In 2022 (just yesterday!), the Supreme Court will finally certify the death of the Lemon ghoul in Kennedy v. Bremerton School District.

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.” 

Law & the Courts

Recommended Reading on Dobbs


Amidst the ocean of bad takes on Dobbs, there are some lush islands. I’ll highlight two here.

1. In the City Journal, law professor Joel Alicea, who six months ago wrote a piece on “Dobbs and the Fate of the Conservative Legal Movement,” follows up with an excellent essay titled “An Originalist Victory.” Alicea explains that “Dobbs is, without question, a triumph for originalism and a vindication of the support given to originalism by the conservative legal and political movements since Roe was decided almost half a century ago.” He addresses two critiques that contend otherwise.

One critique, from moral critics of originalism, contends (in Alicea’s summary) that “the overruling of Roe and Casey is not a momentous victory because it leaves abortion to be decided on a state-by-state basis.” That critique, he points out, involves a “combination of goalpost-shifting and heads-I-win-tails-you-lose argumentation [that] is as obvious as it is unconvincing.” Further:

To say that the overruling of Roe and Casey is not a monumental moral achievement because it did not ban abortion is like saying that the Thirteenth Amendment was not a monumental moral achievement because it did not guarantee full civil and political equality to black people. No doubt the efforts of the pro-life movement have only just begun, just as the efforts of those who sought to guarantee full civil and political equality for black people had only just begun with the Thirteenth Amendment’s ratification. But to diminish the importance of the crucial first step in light of the ultimate destination of our journey is as unsound morally as it is practically.

The second critique, from some originalists, is that Justice Alito’s majority opinion “is not originalist in methodology.” Alicea offers a long and intricate response to this critique. Here is an excerpt:

[T]he opinion devotes page after page to a detailed historical analysis of how abortion was treated by American law up through the ratification of the Fourteenth Amendment—precisely what one would expect in an originalist opinion. Though that analysis is presented as showing that a right to abortion is not “deeply rooted in [our] history and tradition” (rather than as showing that it is not part of the original meaning of the Fourteenth Amendment), in the context of this case, it serves the same function as demonstrating that a right to abortion is not supported by the original meaning of the Fourteenth Amendment. Indeed, the opinion’s staid refusal to affirmatively endorse substantive-due-process doctrine and its footnote pointing out that its Glucksberg analysis would carry over to an originalist analysis under the Privileges or Immunities Clause shows that the Court was thinking of its Glucksberg analysis as serving the same function as an originalist analysis. And the Court’s self-understanding of its analysis is right: the fact that abortion was so widely prohibited in the lead-up to and during the ratification of the Fourteenth Amendment should—given the range of potential original meanings of the amendment put forward in the scholarly literature—conclusively establish that abortion is not protected by any provision of the Fourteenth Amendment as originally understood.

2. On Public Discourse, law professor (and stalwart originalist) Michael Stokes Paulsen argues that “Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time.” Here’s his summary assessment that his essay amplifies:

[Dobbs] is as important as Brown v. Board of Education. It is as fundamental to the Constitution as Youngstown Sheet & Tube. It is as beautiful, in its own way, as Barnette. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision.

Law & the Courts

Federal Laws Bar Mailing and Interstate Carriage of Abortion Drugs


One longstanding federal statute (18 U.S.C. § 1461), amended as recently as 1994, bars use of the United States postal service for abortion drugs:

Every article or thing designed, adapted, or intended for producing abortion … and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion …

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Another longstanding federal statute (18 U.S.C. § 1462), amended as recently as 1996, bars use of “any express company or other common carrier … for carriage in interstate or foreign commerce” for “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

Each statute imposes a prison sentence of up to five years for a first offense and up to ten years for each additional offense.

The existence of Roe v. Wade might well have been a barrier to enforcement of these provisions. But now that Roe has been overruled, surely the Department of Justice will enforce these provisions, right? And even if Attorney General Garland and the Biden administration fail in their duty to pursue evenhanded enforcement of our laws, anyone who violates these provisions is vulnerable to prosecution in the next administration for violations that occur during this administration (subject, of course, to the relevant statute-of-limitations period, which I believe is five years).

These federal statutes ought also to mean that states have free rein to enact similar bans on carriage of abortion drugs. For there would surely be no conflict between the federal and state bans.

(There are First Amendment objections that can be brought against the parts of these statutes that limit advertising and other speech about abortion drugs, but those objections should have no bearing on their application to mailing and carrying abortion drugs.)



Law & the Courts

Court’s Excellent Ruling in Coach Kennedy Case


By a 6-to-3 vote, the Supreme Court ruled today in Kennedy v. Bremerton School District that a school district violated the Free Exercise and Free Speech rights of a high-school football coach when it disciplined him for praying quietly after three games. Justice Gorsuch wrote the outstanding majority opinion, and the three liberal justices dissented.

Gorsuch’s majority opinion forcefully explains that the Free Exercise and Free Speech Clauses do not conflict with the Establishment Clause. In the process, it observes that the Court has already abandoned the notorious Lemon test under the Establishment Clause. And it emphasizes the increasingly unpopular point that “[r]espect for religious expressions is indispensable to life in a free and diverse Republic.”

Here is a quick outline of the key points in Gorsuch’s majority opinion (with many verbatim passages not cluttered with quotation marks):

1. Free Exercise Clause/threshold inquiry (pp. 11-14). Kennedy has shown that the school district burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable” (under Employment Division v. Smith test). The school district disciplined him only for his decision to persist in praying quietly without his players after three games in 2015. It sought to restrict his actions at least in part because of their religious character. Its policies were not neutral toward religion. Nor were they generally applicable: In response to Kennedy’s religious exercise, the district imposed on him a post-game obligation to supervise students that it did not impose on other members of the coaching staff.

2. Free Speech Clause/threshold inquiry (pp. 15-19). Kennedy’s speech was private speech, not governmental speech. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters. (Justice Kavanaugh did not join this part and was evidently content to rely on the Free Exercise ground.)

3. The district did not meet its burden (pp. 19-31). Whether the standard under the Free Exercise Clause and the Free Speech Clause is strict scrutiny or intermediate scrutiny, the district loses.

a. The district is wrong to contend that its suspension of Kennedy was necessary to avoid violating the Establishment Clause. This Court has long ago abandoned the Lemon test and has instead instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings.

b. The district is wrong to contend that Kennedy’s praying would have coerced students to pray. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. Kennedy did not seek to direct any prayers to students or require anyone else to participate. Learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry.

There is no indication in the record that anyone expressed any coercion concerns to the district about the quiet, postgame prayers that Kennedy asked to continue and that led to his suspension. Nor is there any record evidence that students felt pressured to participate in these prayers. To the contrary, and as we have seen, not a single Bremerton student joined Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined.

The district suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law— impermissibly coercive on students. Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the district would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity.

Addendum: I’ve only skimmed Justice Sotomayor’s 35-page dissent (slightly longer than Gorsuch’s majority). It sure doesn’t get off to a good start with this ridiculous first sentence:

This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. [Emphasis added.]

The “school event” here was a football game, and what happens at the “center” of a football game is very different from a coach’s kneeling at midfield (the “center” of the field) after the game has ended. It’s stupid wordplay for her to try to suggest otherwise.

Law & the Courts

This Day in Liberal Judicial Activism—June 27


1979Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.” 

2005By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.  

Law & the Courts

This Day in Liberal Judicial Activism—June 26


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

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

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

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

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

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

2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.” 

 It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”  

Law & the Courts

This Day in Liberal Judicial Activism—June 25


1962—“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” 

In Engel v. Vitale, the Supreme Court holds that the Establishment Clause forbids a state board of education from directing that prayer to be said at the beginning of each school day, even if students who wish to do so are permitted to remain silent or to be excused from the room. 

In solo dissent, Justice Potter Stewart objects that the prayer is consistent with “the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their ‘firm Reliance on the Protection of divine Providence’ when they proclaimed the freedom and independence of this brave new world.” 

1979—Racing to fill the 35 new federal appellate judgeships that a Democrat-controlled Congress had given Jimmy Carter, Senate Judiciary Committee chairman Teddy Kennedy holds a confirmation hearing for seven Carter nominees to the Fifth Circuit. (Six of the seven nominations were to new seats.) All seven will be confirmed by the Senate a mere seventeen days later. 

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

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

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

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

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

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

Law & the Courts

The Long Battle to Overturn Roe


Some reflections on the long, and now successful, battle to overturn Roe:

1. I was a law clerk for Justice Scalia when the Court decided Planned Parenthood v. Casey in 1992. That case presented a golden opportunity for the Court to overturn Roe. But Justices O’Connor, Kennedy, and Souter instead combined to produce a joint majority opinion that was breathtaking in its grandiose misunderstanding of the Court’s role and that made me long for the sterile incoherence of Justice Blackmun’s opinion in Roe.

In their deservedly mocked declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” O’Connor, Kennedy, and Souter were asserting an unconstrained power to define for all Americans which particular interests should be beyond the bounds of citizens to address through legislation. And in their command that the “contending sides of a national controversy … end their national division by accepting a common mandate [supposedly] rooted in the Constitution,” they set forth what Scalia aptly labeled a “Nietzschean vision of us unelected, life tenured judges … leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals.’”

2. When Casey was decided, I doubted very much that Roe would ever be overturned. That doubt intensified a year later, when President Clinton appointed Ruth Bader Ginsburg to replace Justice Byron White, who had dissented both in Roe and Casey. As Senate Judiciary Committee counsel to Senator Orrin Hatch, I saw how unwilling so many Republican senators were to engage in a battle over judicial philosophy generally and over Roe in particular.

3. There are at least two large reasons that the long battle to overturn Roe has succeeded. First, pro-lifers did not heed Casey’s command that they give up on working to defend the lives of unborn human beings, and they remained a powerful political force in the Republican party, all the more so as nearly all Democrats had abandoned the pro-life cause. Second, the conservative legal movement grew and flourished, thanks in large part to the Federalist Society and to Justice Scalia and Justice Thomas. Over time, pro-lifers and the conservative legal movement drove Republican senators to fight for and against judicial nominations on the ground of judicial philosophy.

4. One episode that deserves special mention is President George W. Bush’s nomination of Harriet Miers, his White House counsel, to replace Justice Sandra Day O’Connor in early October 2005. That nomination elicited a firestorm of opposition from the conservative legal movement, which did not perceive Miers to be a conservative judicial stalwart and which did not want to see Bush repeat his father’s error in nominating the unknown David Souter to the Court in 1990. Judicial conservatives were seeking a justice with intellectual heft, the sort of justice who could, say, write a forceful opinion overturning Roe. Weeks later, Bush abandoned the Miers nomination and instead nominated Alito.


Law & the Courts

Dobbs and Rational-Basis Review


Justice Samuel Alito’s magisterial majority opinion in Dobbs v. Jackson Women’s Health Organization displaces the abortion regime that the Supreme Court had imposed on the nation for the past five decades. Under that regime, the states were stripped of their perennial broad authority to bar and regulate abortion. In its 1973 decision in Roe v. Wade, the Court ruled that states could not prohibit abortion before “viability,” the point at which the baby is thought to be able to survive outside the mother’s womb—under current technology, at 23 or 24 weeks of gestation. And in its ruling 30 years ago in Planned Parenthood v. Casey, the Court adopted a subjective and amorphous “undue burden” standard for assessing regulations of abortion before viability.

In overruling Roe and Casey, the Court in Dobbs sets forth “rational-basis review” as the appropriate constitutional standard for review of challenges to abortion laws. Under this very deferential standard, a law governing abortion, like most other laws, “is entitled to a ‘strong presumption of validity’” and “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” The Court expressly acknowledges a broad array of legitimate state interests, including “respect for and preservation of prenatal life at all stages of development” (i.e., from conception forward), “the preservation of the integrity of the medical profession,” “the mitigation of fetal pain,” and “the prevention of discrimination on the basis of race, sex, or disability.”

Dobbs puts an end to the Court’s intrusive micromanagement of abortion legislation. No longer will the Constitution be said to require (or even allow) courts to cast a jaundiced eye on abortion laws or to concoct supposedly damning evidence of an improper legislative intent.

Of the dozens of state laws that courts have enjoined under the Roe/Casey regime, it is doubtful that a single one would fail to satisfy rational-basis review. Indeed, the Court takes only one paragraph to conclude that the Mississippi law at issue in Dobbs, which would generally bar abortion after 15 weeks of gestation, rationally serves legitimate state interests. Similarly brisk dismissal of challenges to abortion laws should be routine under the rational-basis standard.

Law & the Courts

Supreme Court in Dobbs Overturns Roe


In a crowning achievement of the conservative legal movement, the Supreme Court has—at long last!—overturned Roe v. Wade and restored abortion policy to our democratic processes. On a quick review, Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization is essentially the same as the draft that was leaked more than seven weeks ago (and which I summarized here). That isn’t surprising, as the countless criticisms of the draft ranged from the insubstantial to the ridiculous.

Alito and the other four members of the majority—Justices Thomas, Gorsuch, Kavanaugh, and Barrett— deserve ardent praise for their fidelity to the Constitution and for their courage. Even before the leak, the justices were subject to intense pressures that many armchair critics seem oblivious to. It would have been very tempting to look for a way to capitulate to these pressures, but these justices all remained strong.

Law & the Courts

This Day in Liberal Judicial Activism—June 24


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

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

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

Law & the Courts

New York State Rifle & Pistol Association v. Bruen a Major Win for the Second Amendment


In today’s 6–3 ruling in New York State Rifle & Pistol Association v. Bruen, the Supreme Court vindicated the Second Amendment by invalidating New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense. New York is one of only seven jurisdictions that had similarly onerous restrictions conditioning the issuance of a license to carry on a citizen’s showing of an additional special need.

Under New York’s licensing law, anyone wanting to carry a concealed handgun outside his or her home or place of business for self-defense must show, among other requirements, “proper cause.” To meet this high standard, applicants had to show something more than the mere desire to protect themselves or their property. Absent such a showing, only a “restricted” license for public carry may be issued, and that would confine permission to carry a firearm to a limited purpose like hunting or employment.

In New York, “need for self-protection” must be “distinguishable from that of the general community,” a standard interpreted by state courts so rigidly that they held it insufficient to apply to those who live or work in an area “noted for criminal activity” in the absence of evidence of “particular threats, attacks or other extraordinary danger to personal safety.”

In a scholarly opinion written by Justice Clarence Thomas, the Court applied its precedents in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), which recognized the Second Amendment as protecting an individual right for law-abiding citizens to possess a handgun at home for self-defense. Lower court decisions since those cases were decided adopted a “two-step” framework for Second Amendment challenges that looks not only to history, but also to a “means-end scrutiny” of gun laws. The latter notion in this context entails case-by-case examination of how worthwhile a particular law is, a standard so flimsy as to be difficult to distinguish from legislating. Quoting Heller, Thomas observed, “A constitutional guarantee subject to future judges’ assessments of its use­fulness is no constitutional guarantee at all.”

The Court articulated as the applicable standard:

[W]hen the Second Amend­ment’s plain text covers an individual’s conduct, the Consti­tution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is con­sistent with this Nation’s historical tradition of firearm reg­ulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” [citation omitted]

This standard clearly follows from both Heller and McDonald. The point of a fundamental right is that one must able to exercise it, and New York’s discretionary licensing scheme was simply too demanding to meet constitutional muster. Indeed, the phrase “keep and bear arms” in the Second Amendment would be rendered practically meaningless if New York’s gun regulations had been allowed to stand because then the average citizen then could only keep a gun at home, not bear it elsewhere.

Likewise, Thomas noted that the right to bear arms in public for self-defense is not (quoting McDonald) “a second-class right” subject to a different standard from that governing “the other Bill of Rights guarantees.” Just as the Court would not require individuals to “demonstrat[e] to government officers some special need” before they can exercise their speech or free exercise rights under the First Amendment or the right to confront witnesses against them under the Sixth Amendment, the Second Amendment rights should not be subjected to a different analytical framework.

Justice Stephen Breyer’s dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan, argued in favor of a means-end standard, but it focused on policy arguments in favor of New York’s law, as if to admit to the weakness of its advocated level of scrutiny. The opinion cited a litany of statistics on gun violence and even noted the greater population density of the restrictive jurisdictions, as if that had any bearing on constitutional rights. If anything, the need for self-defense that Heller recognized to be at the core of the Second Amendment is greater for those who live or work in dangerous places and who find no solace under New York’s gun laws.

Justice Samuel Alito penned a concurring opinion that exposed the irrelevancy of much of Breyer’s exposition on gun policy to the issue before the Court and chided the dissent for a one-sided presentation of much of the data it presented. Justice Brett Kavanaugh’s concurrence reiterated language from Heller that was also quoted in McDonald: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of fire­arms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Breyer professed a deference to elected officials—“the question of firearm regulation . . . should be solved by legislatures rather than courts”—that of course is situational and oblivious to constitutional text. As we have seen (and surely shall soon see again) in contexts such as abortion, where a right the liberal bloc favors is not in the Constitution, they will gladly steamroll legislatures. Yet they rail against judicial intervention when a right they disfavor is explicitly stated in constitutional text, as in the Second Amendment.

Breyer, who had dissented in Heller, made a feeble attempt to claim he was now deferring to that precedent as a matter of stare decisis, only to repeatedly add why he found that decision’s historical observations “questionable.” “Many experts now tell us that the Court got it wrong in a number of ways,” he noted in reference to liberal historians who supported his view, just three sentences after claiming that he was not trying to “relitigate Heller.” Sure he wasn’t.

Fortunately, today’s ruling commanded a strong majority. This is a reminder of how far we have come to have a majority on the Court who look primarily to the text, history, and tradition when analyzing constitutional questions rather than acting like legislators.

Law & the Courts

This Day in Liberal Judicial Activism—June 23


2005—In an act of judicial passivism, a five-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.  

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

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What Justice Alito’s Draft Opinion Overlooked

Associate Justice Samuel Alito poses during a group photo of the Justices at the Supreme Court in Washington, D.C., April 23, 2021. (Erin Schaff/Reuters)

Justice Samuel Alito’s leaked draft opinion could be even stronger in refuting the notion that Anglo-American law ever recognized a right to abortion. The draft addresses the common-law history in detail and is powerful in assembling the historical data and describing the contemporary medical context.

But nowhere does the February 10 draft discuss the common-law born-alive rule. The rule — and, more important, its prenatal application — demonstrates conclusively that Anglo-American law never recognized any right to abortion, even before quickening. This is particularly relevant in rebutting the claim of the U.S. solicitor general, Elizabeth Prelogar, who told the Supreme Court that “at the Founding and for decades thereafter, women generally could terminate a pregnancy, at least in its early stages.”

As the draft opinion shows, abortion law was necessarily limited by contemporary medical understanding. The era of the common law — before 1803 when the first English abortion statute was adopted by Parliament — was a time of primitive medicine and high infant mortality. (The stethoscope, for example, wasn’t invented until 1816.) Before modern medicine, the mother’s first sense of fetal movement — called quickening — was the most reliable evidence of a viable (progressing) pregnancy and a live child in utero. That generally occurs around 16 to 18 weeks of pregnancy.

Before quickening, all “signs” of pregnancy were ambiguous, evanescent, and unreliable. The law focused on quickening as the most reliable evidence of pregnancy and fetal life. The quickening rule was an evidentiary rule, as numerous treatises and common-law cases confirm, not — as abortion advocates claim — a substantive rule of humanity or personhood.

Proof that an abortive act caused a miscarriage (abortion) was not enough to show homicide — that the act killed a living child. The child might have died after quickening, and it was difficult to show in the case of a stillbirth whether the death was caused by natural or human causes.

So the born-alive rule was adopted as a standard of sufficient evidence of homicide. Live birth — showing signs of life outside at any time of pregnancy — was necessary at the time to connect the dots, to show that an abortive act killed a living prenatal human being. Evidence of live birth was accepted at any stage of pregnancy. There was no gestational limit.

Pro-abortion advocates have for decades alleged a right to abortion before quickening. And they make that claim again in Dobbs. The pro-abortion “history” brief filed by the American Historical Association (AHA) and Organization of American Historians (OAH) claims a “right” to abortion before quickening.

The claimed right to an abortion before quickening suffers from three major defects. First, by ignoring the contemporary medical context of the law, the claim assumes that there was reliable evidence of a pregnancy before quickening. If quickening was essential to show there was a pregnancy, it was necessary to show its termination (abortion). Talk of any recognition of a “right” to abortion before proof of pregnancy (quickening) is nonsense. How could there be a right to abort something for which there was no reliable evidence? In effect, pregnancy didn’t exist before quickening. The Alito draft shows that there was never any legal recognition of any such “right.”

Second, the claimed right assumes but never attempts to show that a safe and effective method of abortion existed early in pregnancy. Joseph Dellapenna, the foremost historian of abortion and abortion law in the Western world, rebuts that assumption through an exhaustive examination of contemporary medicine in his 2006 treatise, Dispelling the Myths of Abortion History. Dellapenna shows that any supposed method of abortion was either deadly or ineffective or both. Evidence of a safe and effective method is virtually nonexistent. As Brooklyn Law professor Anita Bernstein, an advocate of abortion rights, conceded in the Buffalo Law Review (2015), “Dellapenna argues persuasively that this combination [safety and effectiveness] did not come together until the nineteenth century.” The brief filed by the AHA-OAH in Dobbsnever dares to confront Dellapenna’s evidence.

Nevertheless, folklore about potions or herbs that acted as abortifacients persisted. Why? The obvious reason is that since medicine was so primitive, and the determination of pregnancy was so uncertain, any “remedy” that might be taken could be “connected” to the disappearance of virtually any symptom of pregnancy, at least before quickening. Signs appeared, potion taken, signs disappeared, the potion must have ended a pregnancy.

Given the lack of any safe and effective method of abortion, the real “method of choice” for dealing with an unwanted pregnancy was infanticide, not abortion. Because killing the child in utero was ineffective and deadly for the mother, the method of choice was to wait until the child was outside and kill the child outside — infanticide. The evidence of infanticide, and of the law’s prosecution of infanticide, is abundant. As historian Mary Kenny wrote, “the traditional forms of abortion have been infanticide and abandonment.”

Finally, the claim of a right to abortion before quickening ignores the born-alive rule. The born-alive rule dictated that the killing of a child in utero — resulting in a stillbirth — could not be a homicide due to unreliable evidence. Only if the child was injured in utero and delivered alive and died thereafter could the perpetrator be charged with homicide — the killing of a human being. The born-alive rule, like the quickening rule, was an evidentiary rule. And if the infant was born alive, that evidence of life outside eclipsed the need for the quickening rule.

Some common-law writers mention the born-alive rule as early as the 1300s. And it was confirmed by cases and legal authorities such as Coke for centuries, but the clearest statement was by William Blackstone in his influential Commentaries on the Laws of England in the 1760s. He held: “To kill a child in its mother’s womb, is now no murder, but a great misprision: but if the child be born alive, and dieth by reason of the potion or bruises it received in the womb, it is murder in such as administered or gave them.” This is the clearest statement of the prenatal application of the born-alive rule.

The born-alive rule shows two things of legal importance that utterly refute Roe v. Wade. First, there was no “right” to an abortive act. An abortive act that resulted in death after birth was a homicide. Second, it shows that the connection of the prenatal act in utero to the death after birth from the prenatal act proved the elements (corpus delecti) of homicide. It showed that the prenatal being and the child after birth were the same individual. If the child was not a human being until after birth — as Justice Blackmun suggested in Roe — then no prenatal act could be relied upon to prove homicide. The prenatal application of the born-alive rule showed that the human entity inside and outside the womb was the same entity in the view of the common law.

The born-alive rule is stronger and clearer than the quickening rule in showing that Anglo-American law never recognized a right to abortion, that the law considered the prenatal entity to be a human being, and that proof of killing from an abortive act could be treated as a homicide.

Law & the Courts

Carson v. Makin Scores Another Victory for Religious Liberty


Today the Supreme Court handed down a significant victory for religious liberty in Carson v. Makin. At issue was a program enacted by Maine to provide tuition assistance to parents who live in school districts that do not operate their own secondary school, but only permitting such support to go to private schools the parents designate if they are “nonsectarian.” By a margin of 6–3, the Court struck down that prohibition as a violation of the Free Exercise Clause. Families may not be barred from participating in an otherwise generally available student-aid program simply because they choose to use their aid for religious schools.

Today’s holding is a clear application of Espinoza v. Montana Department of Revenue (2020), where the Court held that Montana could not prohibit, under the guise of its Blaine Amendment, a program providing a tax credit for contributions to a scholarship program simply because it gave parents the choice of applying it to religious schools. Unlike Montana, Maine does not technically have a Blaine Amendment—which is ironic given that the namesake of those no-aid provisions, James G. Blaine, hailed from Maine—but this case, like Espinoza, strikes a blow against the Blaine Amendments that remain in most states.

The Court should be applauded for reaching the same conclusion as it did in Espinoza, but the legal question involved in this case is so nearly identical to that of Espinoza that it may raise eyebrows that Carson was not decided unanimously. As Chief Justice John Roberts wrote in his opinion for the Court, “were we to accept Maine’s argument, our decision in Espinoza would be rendered essentially meaningless.”

For that matter, Espinoza built on Trinity Lutheran Church of Columbia v. Comer (2017), which held that a state could not exclude churches from an otherwise neutral and secular aid program—in that case, a playground-resurfacing grant program that excluded church-controlled entities. As in Espinoza, Roberts explained, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

What is remarkable about this case is the fact that Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan were unwilling to follow Trinity Lutheran and Espinoza here. Rather than abide by those precedents, they went along with Maine’s attempt to concoct a loophole by reframing secular education as rendering sectarian schools non-equivalent. (We saw a very similar dynamic play out with red-herring dissents in the eviction moratorium case last year and the religious liberty cases during COVID.) Roberts exposed this sleight of hand:

Saying that Maine offers a benefit limited to private secular education is just another way of saying that Maine does not extend tuition assistance payments to parents who choose to educate their children at religious schools. But “the definition of a particular program can always be manipulated to subsume the challenged condition,” and to allow States to “recast a condition on funding” in this manner would be to see “the First Amendment . . . reduced to a simple semantic exercise.” [citations omitted]

Roberts also quoted Justice John M. Harlan’s statement concurring in a 1970 decision that upheld property tax exemptions for churches: “The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders.”

Embedded in the contrary argument is the notion, advanced in Justice Breyer’s dissent, that prior cases turned on the religious status of the schools involved, not the use of public funds. Justice Neil Gorsuch, joined by Justice Clarence Thomas, had previously argued against the status-use distinction in a concurring opinion in Trinity Lutheran. Today, Roberts’ opinion for the Court flatly rejected the notion “that use-based discrimination is any less offensive to the Free Exercise Clause” than status-based discrimination, and it quoted yet another 2020 religious freedom precedent, Our Lady of Guadalupe School v. Morrissey-Berru, to explain why: “[E]ducating young people in their faith, incul­cating its teachings, and training them to live their faith are responsi­bilities that lie at the very core of the mission of a private religious school.”

The dissent by Justice Breyer for the Court’s liberal bloc argued that Maine’s program reflects “government neutrality” sought by the Establishment Clause, but Roberts countered, “The State pays tuition for certain students at private schools—so long as the schools are not religious. That is discrimination against religion.” Additionally, Roberts explained, “a neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause.”

Besides joining most of Breyer’s dissent, Justice Sotomayor penned a dissent of her own that was not masked by any pretense of adherence to Trinity Lutheran or Espinoza. “What a difference five years makes,” she lamented, reiterating her 2017 dissent.

Notably, the First Circuit judgment that the Court reversed today was joined by retired Justice David Souter sitting on the panel by designation. It would seem that liberal justices do not feel bound by Supreme Court precedent even after they leave the Court.

Keep this in mind when the Court’s much anticipated decision in Dobbs v. Jackson Women’s Health Organization is finally handed down. Once the context shifts to abortion, we are going to hear a lot about stare decisis from the dissenters, not to mention members of the Biden administration, whose solicitor general’s office switched sides in the First Circuit after the prior administration had sided with the plaintiffs. Their philosophy is more accurately stated as “stare decisis for me but not for thee.”

Carson v. Makin adds to the Court’s impressive victory streak in merits cases spanning more than a decade for religious freedom and expression. But there remain several justices who would not only end the streak, but undo it, precedent notwithstanding.

Law & the Courts

Court’s Excellent Free-Exercise Ruling in Carson v. Makin


By a 6-to-3 vote, the Supreme Court ruled today in Carson v. Makin that Maine violated the Free Exercise Clause by restricting its program of tuition assistance to private schools that are “nonsectarian.” Chief Justice Roberts wrote the majority opinion, and the three liberal justices dissented.

Maine, it turns out, is the most rural state in the nation, and more than half of its school districts don’t operate a high school. Maine has therefore enacted a program of tuition assistance that assists parents in such districts in paying for their children to attend a public or private high school. Private high schools that are eligible to receive payments must be accredited by a regional accrediting authority or approved by Maine’s Department of Education. Plus—and here’s the catch that led to the lawsuit—private schools are eligible only if they are deemed to be “nonsectarian.”

Maine imposed this “nonsectarian” requirement in 1981, in response to a state attorney general’s advice that its public funding of private religious schools violated the Establishment Clause. The Supreme Court rejected that reading of the Establishment Clause two decades later in Zelman v. Simmons-Harris but Maine did not drop the requirement. It turns out that nonsectarian does not simply mean not religious, as schools that are affiliated with churches or other religious institutions are eligible to take part, so long as they are deemed nonsectarian.

The Chief Justice invokes the general principle (which “we have repeatedly held”) that “a State violates the Free Exercise Clause when it excludes religious observers from otherwise available public benefits.” The Court’s recent rulings in Trinity Lutheran Church v. Comer (2017) and Espinoza v. Montana Department of Revenue (2020), he explains, make this case easy. (See slip op. at 9-11.)

I’ll leave it to others to provide a more extensive summary of the Chief’s straightforward application of Trinity Lutheran and Espinoza. I’ll instead highlight a few points that I think have been overlooked in some of the early responses I’ve seen to the ruling.

First, contrary to some extravagant rhetoric in the dissents, the ruling in no way requires states to adopt voucher programs or other programs of tuition assistance. As the Chief explicitly states:

As we held in Espinoza, a “State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

Instead of its tuition-assistance program, Maine could choose to “expand the reach of its public school system, increase the availability of transportation, provide some combination of tutoring, remote learning, and partial attendance, or even operate boarding schools of its own.”

Second, the Court’s ruling will have Maine’s tuition-assistance program operating as it did before 1981. Maine was hardly a hotbed of theocracy before then, so there is no reason to expect the Court’s decision to make it one. The fact that eligible schools must be accredited or approved cuts short the parade of horribles that some are trotting out.

Third, on what conceivable basis can the dissenters think it’s okay for state bureaucrats to rule that some religious schools are nonsectarian while others are not? (As the Chief pointed out in his majority opinion in Espinoza, the term sectarian has a “checkered tradition” as a code for bigotry against Catholics.)

I’ll also note that retired Supreme Court justice David Souter was part of the First Circuit panel that implausibly tried to distinguish away Trinity Lutheran and Espinoza (see slip op. at 11-18), and he thus provides an encouraging reminder of the much better line of Supreme Court picks that Republican presidents have made ever since President George H.W. Bush plucked him from obscurity in 1990 (with that line beginning, of course, with Bush’s own selection of Clarence Thomas in 1991).

Law & the Courts

This Day in Liberal Judicial Activism—June 21


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

Law & the Courts

This Day in Liberal Judicial Activism—June 20


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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 19


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 an extraordinary 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.” 

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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 appoints ACLU activist Ruth Bader Ginsburg to the D.C. Circuit.  

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Iowa Supreme Court Abortion Ruling a Reminder of the Importance of State Courts


Today the Iowa Supreme Court issued a groundbreaking decision in Planned Parenthood of the Heartland v. Reynolds that at least begins the process of getting that court out of the business of dictating abortion policy to elected officials under the guise of state constitutional law. Rejecting a challenge to Iowa’s required 24-hour waiting period prior to getting an abortion, the court overruled a 2018 precedent striking down a 72-hour waiting period under a stringent “strict scrutiny” standard for abortion.

Another of the court’s abortion precedents, from 2015, recognized the U.S. Supreme Court’s “undue burden” test developed in Planned Parenthood v. Casey as also applying under the state constitution. Under today’s decision, written by Justice Edward Mansfield, that remains the applicable test in Iowa “[f]or now,” but perhaps not for long as the court explicitly stated that “the legal standard may . . . be litigated further.” The court seems open to ridding itself of that muddled standard upon further litigation, even going as far as to openly suggest that the pending Dobbs v. Jackson Women’s Health Organization case in the U.S. Supreme Court, once decided, “may provide insights that we are currently lacking.”

Read Ed Whelan’s post for an incisive review of today’s decision. I will add that this is a reminder of the importance of preparing for the legal landscape that would follow the overturning of Roe v. Wade and Casey. Many of the highest courts among the fifty states are dominated by activist judges who would readily concoct a right to abortion if they have not done so already. In many states, there is a major risk that judges will feel emboldened to override by judicial fiat pro-life measures passed by elected officials.

For living constitutionalists, it does not matter that, as is the case with the U.S. Constitution, no state constitution enumerates a right to abortion. (At least for now; a Vermont ballot measure, if approved this year, would make that state the first to do so.) State court judges who feel unanchored to legal text and original meaning have long shown the same tendency to blur their policy preferences into law as the more familiar Supreme Court activists have. This has been visible on issues ranging from the death penalty to tort reform.

One of the nation’s most prominent living constitutionalists encouraged this trend. In a 1977 law review article, Supreme Court Justice William Brennan, finding himself on the losing side of an increasing number of cases on the high court, famously called upon “state courts to step into the breach” with their own, more expansive interpretations of rights under state constitutions and statutes.

This remains a rallying cry on the Left in recent times. And of course, their principal grievance with originalist judges is not with expansive readings of rights that are actually in the Constitution. Living constitutionalists have been amassing a track record of trying to shrink such rights, including notably religious liberty and political speech under the First Amendment and the right to keep and bear arms under the Second Amendment. Where they would like to be more expansive is in fact in the invention of rights that constitutions, state and federal, simply do not confer.

Abortion is the consummate example of a right concocted out of thin air. No standing precedents of the Court are more highly charged—or less persuasive—than Roe and Casey. Once the Court, barring the unexpected, overrules them in Dobbs, the challenge on the state level will become more pronounced as state supreme court judges face new temptations to overstep their bounds and impose their own versions of Roe v. Wade. This is why public vigilance about the composition of our courts must not be limited to the federal bench. For representative democracy to thrive, we need constitutionalist judges on state courts.

Law & the Courts

Iowa Supreme Court Overrules Pro-Abortion Precedent


One down, one to go.

In a momentous ruling today (in Planned Parenthood of the Heartland v. Reynolds), the Iowa supreme court today repudiated one of its two recent rulings that confers protection on abortion under the state constitution, and it strongly signaled that the other ruling is in severe jeopardy.

The issue in the case was whether to affirm a lower-court ruling that held that a law providing a 24-hour waiting period for an abortion violated the state constitution. By a vote of 5 to 2, the supreme court reversed that ruling and remanded the case to the lower court. Justice Edward Mansfield’s lead opinion garnered a majority in all but one subpart; on that subpart, two members would have gone further than Mansfield goes now.

Some brief background (drawn from Mansfield’s opinion) on the two earlier rulings:

In 2015, the Iowa supreme court held that a statewide ban on telemedicine abortions violated the state constitution. The court found it unnecessary to decide whether the state constitution conferred even more protection for abortion than the federal Roe/Casey regime did, as it found that the ban on telemedicine abortions violated Casey’s undue-burden test, which the state for some reason conceded applied under the state constitution.

In 2018, the Iowa supreme court held that abortion was a “fundamental right” under the state constitution and that a 72-hour waiting period for abortion could not satisfy the “strict scrutiny” that infringements on that supposed right were subject to.

Mansfield’s majority opinion overrules that 2018 ruling and rejects the notion that abortion is a “fundamental right” under the state constitution. But in a plurality portion of his opinion, he declines to decide what constitutional standard—e.g., “undue burden” or deferential rational-basis review—should replace strict scrutiny. Because the state hadn’t taken a position on that question, he deemed it appropriate to leave the “undue burden” test on remand as the governing standard “[f]or now.” At the same time, he expressly left open that the legal standard “may also be litigated further” in the case.

In a separate opinion, Justice Matthew McDermott, joined by Justice Christopher McDonald, would have gone further by overruling the 2015 ruling and applying rational-basis review to laws regulating abortion.

Here are some noteworthy excerpts from Justice Mansfield’s opinion (with PPH II being his shorthand for the 2018 ruling) that would seem to apply as well to future reconsideration of the undue-burden standard:

Textually, there is no support for PPH II’s reading of the due process clause as providing fundamental protection for abortion. Article I, section 9 states, “[N]o person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const. art. I, § 9. Section 9 doesn’t speak in terms of absolutes. If liberty cannot be limited without due process of law, the logical implication is that liberty can be limited with due process of law. Certainly that conclusion seems correct when there are important interests—such as life itself—on both sides….

Historically, there is no support for abortion as a fundamental constitutional right in Iowa. As the PPH II dissent pointed out, abortion became a crime in our state on March 15, 1858—just six months after the effective date of the Iowa Constitution—and remained generally illegal until Roe v. Wade was decided over one hundred years later.…

Beyond its textual and historical flaws, PPH II is also flawed in its core reasoning. Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues….

As part of his explanation why stare decisis principles don’t weigh heavily in favor of retaining the 2018 ruling, Justice Mansfield observed:

PPH II was overtly based on the notion of a “living” constitution…. To the extent PPH II viewed constitutional interpretation as an evolutionary process rather than a search for fixed meaning, it is hard now to argue that the evolutionary process had to end as soon as PPH II was decided. Does the Iowa Constitution get to “live” until 2018, at which point it must stop living?

Law & the Courts

This Day in Liberal Judicial Activism—June 17


1963—In the course of ruling in School District of Abington Township v. Schempp that the Establishment Clause forbids a Pennsylvania law that requires that Bible verses be read at the opening of each day of public school, the Supreme Court imposes what religion-law scholar Steven D. Smith calls the “odd couple of principles—religious neutrality and governmental secularity— that have “bedeviled religion-clause cases ever since.” (As Smith explains, “as soon as we acknowledge that some or even most religions have a public dimension, with implications for public policy, a determinedly secular government is no longer religiously neutral.”) 

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.) 

2018—In their challenge (in Whole Woman’s Health v. Smith) to a provision of Texas law that would require them to bury or cremate fetal remains, abortion providers enlist the assistance of federal district judge David Ezra in harassing the Texas Catholic Conference of Catholic Bishops, which is not even a party to the litigation. On Father’s Day, Ezra issues an order giving the Texas Catholic Conference a mere 24 hours to turn over to the abortion providers some 300 internal Conference communications among the bishops and their staff. That’s on top of thousands of pages of documents the Conference had already provided. 

A Fifth Circuit panel, in blocking Ezra’s order, will find his assessment of the competing interests “hard to fathom.” 

Law & the Courts

En Banc Fourth Circuit Sharply Divides on Whether Charter School Is State Actor


By a vote of 10 to 6 along ideological lines, the en banc Fourth Circuit ruled yesterday (in Peltier v. Charter Day School) that a public charter school in North Carolina violated the Equal Protection Clause of the Fourteenth Amendment when it adopted a dress code that required female students to wear skirts, skorts, or jumpers. The court divided sharply on the question whether a public charter school is a state actor subject to the Equal Protection Clause.

Judge Marvin Quattlebaum wrote the lead dissent. Here are some excerpts from the introduction to his dissent:

The question is not whether we like or don’t like Charter Day School’s requirement that female students wear skirts, skorts or jumpers, or whether we think the requirement is good or bad for female students. We face a legal question—is Charter Day School a state actor? …

Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor under § 1983. The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues. The immediate casualty of the majority’s decision is a small part of a dress code at a particular charter school. That is the least of my concerns. My worry is that the majority’s reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents, will be limited.

But the implications of the majority’s decision extend beyond even charter schools. By casting aside guidance from Supreme Court precedent, the majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state for purposes of a § 1983 claim. Frankly, it is hard to discern, much less define, the limits of what constitutes “state action” after the majority’s decision.

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

Elephants and Habeas Corpus


That’s not a post title I ever expected to write.

By a vote of 5 to 2, New York’s highest court, the New York Court of Appeals, ruled today (in In re Nonhuman Rights Project v. Breheny) that the petitioner Nonhuman Rights Project may not seek habeas corpus relief on behalf of Happy, an elephant at the Bronx Zoo, in order to transfer Happy to an elephant sanctuary.

In her straightforward majority opinion, Chief Judge Janet DiFiore holds that the common law writ of habeas corpus is a remedy available only to human beings. Happy is not a human being, and thus “while no one disputes that elephants are intelligent beings deserving of proper care and compassion,” habeas corpus relief can not be sought on Happy’s behalf.

In an interesting but discursive and unpersuasive 70-page dissent, Judge Rowan D. Wilson roams over a lot of terrain. Wilson acknowledges that Happy is not a human being (or a person). But in his view the writ of habeas corpus is available to Happy if Happy’s detention is “unjust”:

Because this appeal comes on a motion to dismiss, the legal question presented is whether the detention of an elephant can ever be so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should be made available under the common law.

Wilson answers this question yes:

If we accept all of the information [submitted on Happy’s behalf] as true, Happy is a being with highly complex cognitive, social and emotional abilities. She has self-awareness, social needs and empathy. She also comes from a wild, highly social species whose bodies and minds are accustomed to traversing long distances to connect with others and to find food. Happy has established a prima facie case that her confinement at the Bronx Zoo stunts her needs in ways that cause suffering so great as to be deemed unjust.

In Wilson’s view, Happy is therefore entitled to a merits hearing on its habeas corpus petition, in which the court below “must undertake a normative analysis that weighs the value of keeping [Happy] confined with the value of releasing [Happy] from confinement.” Wilson has little doubt how that merits hearing should be resolved:

In Happy’s case, the value of the confinement to the Zoo and to society appears low or nonexistent: the Zoo decided in 2006 that it would end its elephant program, meaning it would accept no new elephants into the zoo. That decision strongly suggests that, whereas the value to the Zoo and society in displaying an elephant might have been substantial long ago, today that value is negligible, while at the same time (and relatedly), our appreciation for the fundamental qualities, abilities and needs of elephants has led us to understand the damage done to them by confinement in close, companionless quarters.

Wilson, I’ll note, also maintains that we confer rights on animals whenever we impose duties on ourselves with respect to those animals:

For example, 16 USC § 668 imposes a duty on humans not to capture or kill a bald or golden eagle, enforced by fines and imprisonment; that duty establishes a correlative right of bald and golden eagles to be free from capture by humans (except as authorized by permit). The Endangered Species Act (16 USC § 1531 et seq.) gives all animals falling within its purview the right not to be captured, harassed or harmed by humans, and imposes a correlative duty on humans.

In a second dissent, Judge Jenny Rivera broadly agrees with Wilson and opines that the “human/nonhuman binary relied upon by the majority” is unsound: “I conclude that history, logic, justice, and our humanity must lead us to recognize that if humans without full rights and responsibilities under the law may invoke the writ to challenge an unjust denial of freedom, so too may any other autonomous being, regardless of species.”

Those who discern a general inverse relationship between elite education and good judgment won’t be surprised to learn that Wilson is a graduate of Harvard College and Harvard Law School and that Rivera (who clerked for then-district judge Sonia Sotomayor three decades ago) has degrees from Princeton, NYU law school, and Columbia law school. By contrast, DiFiore graduated from C.W. Post College and St. John’s law school.

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

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 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

Excellent WSJ House Editorial on Abortion Polling


Today’s Wall Street Journal carries an excellent house editorial, “The Contradictions of Abortion Polling,” that contests the “conventional wisdom … that the Supreme Court is walking into a gale-force political wind if it overturns Roe v. Wade.” As the editorial argues:

The real contradiction in the polling is Roe, which has become a totem that doesn’t reflect the underlying policy views. Fifty-five percent of Americans tell Gallup that abortion should be generally illegal in the second trimester. Yet a majority say the Supreme Court should keep Roe. That circle can’t be squared, and it probably reflects that many Americans don’t realize what Roe really allows.

In short, “whatever people tell pollsters about Roe as precedent, they can’t get the policy they seem to want until Roe goes and the political debate opens up.”

The editorial also points out how radical the so-called Women’s Health Protection Act (the bill in Congress being pushed by pro-abortion legislators) is:

That bill guarantees abortion access through viability, and through all nine months if a health provider deems the pregnancy a “health” risk…. It also protects sex-selective abortions and undercuts state laws that require parental involvement for minors.

Indeed, that bill is even more extreme—indeed, barbaric—than WSJ’s brief summary suggests.

The Supreme Court’s role, of course, is to get the Constitution right, not to be swayed by the political winds. But anyone who is a confident judge of those winds is fooling himself. As the editorial observes, “How the politics shakes out depends on how the debate and policies go in the states.” And, of course, in the coming election campaigns.

Law & the Courts

This Day in Liberal Judicial Activism—June 10


1968What 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. 

Law & the Courts

Courting Assassination


A couple of thoughts on the horrific attempt to assassinate Justice Kavanaugh:

1. From the moment that Politico published the leaked draft of Justice Alito’s majority opinion in Dobbs, there was an obvious risk that someone seeking to thwart the overruling of Roe v. Wade and Planned Parenthood v. Casey might try to assassinate one or more of the five justices thought to be in the majority. The leaker’s creation of that risk is one of many reasons that the liberal-leaker theory has struck me as vastly more plausible than the conservative-leaker theory: For a liberal leaker, the risk of assassination might well be a feature, not a bug (at least for the fear it would induce).*

That’s why I immediately recommended three options for the Court to issue the Dobbs ruling forthwith, including this one:

A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.

Five weeks have passed since the leak. On the day after the leak, the Chief Justice declared, “The work of the Court will not be affected in any way.” But that declaration was seemingly blind to the reality that an assassination would (pardon the understatement) dramatically affect the work of the Court. Nonetheless, it appears that the Court has taken no steps to accelerate the issuance of its decision in Dobbs. The risk of an assassination will therefore persist—and surely intensify—until the Dobbs ruling is announced. (To be sure, some risk will continue after Dobbs is announced, but the incentive will be far weaker.)

On what legitimate theory can the dissenting justices continue to dawdle?

2. Let’s not forget Senate Democratic leader Chuck Schumer’s appalling statements at a pro-abortion rally outside the Supreme Court two years ago:

I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the priceYou won’t know what hit you if you go forward with these awful decisions.

Schumer stated the following day that he “should not have used [those] words” and that they “didn’t come out the way I intended to.” But it’s especially incumbent on him to make a much more forceful denunciation of violence against the justices.

* I’ve tweaked this sentence since original posting.

Law & the Courts

Let’s Recall Sotomayor’s Strange Praise for Chesa Boudin


Given the focus of Bench Memos, I will leave it to others to explore the lessons to be drawn from San Francisco voters’ thrashing recall of progressive district attorney Chesa Boudin. I instead will recall Justice Sonia Sotomayor’s strange decision to send Boudin a video of ardent congratulations for his swearing-in in January 2020, a “surprise video” that “prompt[ed] gasps” from the large audience celebrating the event.

Sotomayor’s video was strange in at least two respects. First, she had no evident ties to Boudin that might justify a simple congratulations. Second, her video comments went far beyond simple congratulations:

I sent you this message to tell you how much I admire you.

[Y]ou too [i.e., like Sotomayor herself, as the context makes clear] are an example that gives hope to so many.

Your personal strength and commitment to reforming and improving the criminal justice system is a testament to the person you are and the role model you will continue to be for so many.

I hope you reflect as a great beacon to many.

[T]he city of San Francisco will be so very well served by a man whose life creed is believing, as you told me “We are all safer when we uplift victims, hold everyone accountable for their actions, and do so with empathy and compassion.”

As I wondered in my original post, how was it proper for a Supreme Court justice to take part in public cheerleading for an elected official?

Will Sotomayor now bless us with her reaction to Boudin’s recall?

Law & the Courts

This Day in Liberal Judicial Activism—June 7


1965Griswold v. Connecticut arose when the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced 

In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern.  

Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt v. Baird (see This Day for March 22, 1972) would confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.” 

Law & the Courts

Distorting Alito, Part 13,214


I haven’t tried to keep up with all of the attacks on the leaked draft in Dobbs, but a couple of very odd recent posts by law professor Sherry Colb caught my attention.

In one of the posts, Colb purports to analyze the opening sentences of Justice Alito’s draft. But she never actually quotes those sentences, and she badly misreads and misrepresents them. Here is the opening paragraph of Alito’s draft:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. [Underlining added.]

Colb argues that “[w]omen who must remain pregnant and birth children against their will simply DO lack control over their own bodies,” and she complains that Alito “demotes what are plain facts to opinion or perspective.” On the other hand, she contends, Alito “credits the belief that a zygote is a baby,” even though, “[a]s commonly understood, the word ‘baby’ does not include a zygote.” By her account, Alito “treats as similar an undeniable fact about forced pregnancy with a false factual claim about what a baby is,” and his “drawing of this equivalence constitutes a lie about a zygote being a baby.”

Let’s unpack Colb’s errors.

1. In presenting the perspective held by many supporters of abortion, Alito states that they believe that “any regulation of abortion invades a woman’s right to control her own body” (by aborting the other body growing inside of her). It is the assertion of that right as dominant that presents a moral claim, not an “undeniable fact.” Colb simply misses this basic point.

2. Colb uses the word baby thirteen times, including twice in quotes, in describing Alito’s supposed account of the pro-life position. Colb’s readers would surely be very surprised to discover that Alito doesn’t use the word baby at all in the passage that she is objecting to. Indeed, he uses the word baby only once in his entire opinion, in referring to the “newborn [put] up for adoption.” Colb seems eager to obscure that the pro-life position, far from resting on “a false factual claim about what a baby is,” builds on the biological fact that the life of a human being begins at conception.

3. Colb’s assertion that Alito “credits the belief that a zygote is a baby” is wrong in a second sense. Alito isn’t crediting anything. He’s dispassionately describing the position of many pro-lifers, just as he dispassionately describes the position held by many supporters of abortion.

4. To top it off, Colb snarkily refers to Alito’s “hero Sir Matthew Hale,” as if Alito’s use of Hale as an authority on the common law is any different from Justice Kagan’s or Justice Breyer’s use of Hale.

In a second post, Colb imagines that Alito might have put the phrase “potential life” in quotes in order “to signify his own rejection of the idea that an ensouled zygote could be anything less than a fully realized person, entitled to take what it needs from its living incubator’s bloodstream.” (Colb is fond of the notion that the unborn child is a parasite.) Colb contends that Alito is “egregiously wrong” in supposedly thinking that “a zygote has an interest in going from potential to actual personhood.”

Alito puts the phrase “potential life” in quotes for the simple reason that he is quoting Roe v. Wade and Planned Parenthood v. Casey. Alito himself takes no position anywhere in the draft on what “interest” a zygote or embryo or fetus might have at various stages of gestation. He instead merely recognizes that there is a legitimate state interest in protecting prenatal life.

What’s more striking is the alternative position that Colb advances:

As moral philosophers have long explained, having an interest means being the sort of creature for whom life could go well or ill. You have interests, and you know that because asking you “how do you feel?” is a coherent question when posed to you. The same question posed to an orange seed or a zygote does not make any sense. Neither an orange seed nor a zygote has preferences, fears, or any of the other feelings and sensations that would give them interests.

I can’t tell from Colb’s account at what point she believes that a human being has “an interest” in not being killed. Does a newborn have “preferences” or “fears”? Does a one-year-old baby know to regard “how do you feel?” as a coherent question? Does Colb really imagine that she is presenting a consensus view of moral philosophers?

Much of the rest of Colb’s post is a bizarre riff on her confusion between gametes (“That ripe egg is a potential person”) and the genetically complete and distinct human organism that comes into being at conception.

Law & the Courts

This Day in Liberal Judicial Activism—June 5


1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime will be voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it mis-imagines contemporary standards to be. (See This Day for February 18, 1972.)