Law & the Courts

This Day in Liberal Judicial Activism—April 20

(Tyrone Siu/REUTERS)

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

Harper’s complaint will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.

Law & the Courts

This Day in Liberal Judicial Activism—April 19

(Photo Illustration: NRO; Image: Dreamstime)

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”

Under Douglas’s rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.

2016—Never has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception.

In G.G. v. Gloucester County School Board, a divided panel of the Fourth Circuit defers to the Obama administration’s radical claim that federal law requires any school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.” Never mind that the Obama administration never actually interpreted the particular 1975 regulation in the manner that the panel majority imagined it owed deference to. Never mind that assigning facilities and programs on the basis of biological sex disregards—and thus clearly does not discriminate on the basis of—gender identity.

In August the Supreme Court will block the Fourth Circuit’s ruling from taking effect, and in late October it will grant the school board’s certiorari petition. In March 2017—after the incoming Trump administration repudiates the Obama’s reading of federal law—the Court will vacate the Fourth Circuit’s ruling and remand the case for further consideration.

Law & the Courts

This Day in Liberal Judicial Activism—April 18

(Wikimedia Commons)

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws.

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.

Law & the Courts

This Day in Liberal Judicial Activism—April 17

President Obama and Sonia Sotomayor in 2009 (Jewel Samad/AFP/Getty)

2009—Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Association—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat.

Law & the Courts

This Day in Liberal Judicial Activism—April 16

(Photo Illustration: NRO)

2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.”

Law & the Courts

A Note on ‘Future’ Vacancies

The Administrative Office of the U.S. Courts has one list of “current judicial vacancies” (those that exist now) and a separate list of “future judicial vacancies” (those that will exist at some point in the future). It’s sensible for some purposes to keep the lists separate, but the distinction sometimes leads to a confusion.

To dispel that confusion: It’s entirely proper for a president to make a nomination for a future vacancy and for the Senate to confirm that nomination before the vacancy actually arises. (Indeed, when the incumbent steps down “effective upon the confirmation of my successor,” that is the only way to proceed.) What the president can’t do before the vacancy arises is make the separate post-confirmation act of appointing the individual to the office.

Law & the Courts

Second Circuit to Flip to Majority of Republican Appointees?

Second Circuit judge Christopher F. Droney announced today that he will take senior status on June 30, eight days after he turns 65. Droney was appointed to the district court by President Clinton in 1997 and was elevated to the Second Circuit by President Obama in 2011.

Droney’s is the second “future” vacancy on the Second Circuit. Dennis Jacobs, appointed by President George H.W. Bush, will be taking senior status on May 31.

These two future vacancies are on top of the two existing vacancies to which Michael H. Park and Joseph F. Bianco have been nominated. The Park and Bianco nominations await action on the Senate floor; I’m guessing that they will be up for a vote right after the Senate returns from its Easter recess.

When President Trump fills these four vacancies, the Republican appointees on the Second Circuit will outnumber the Democratic appointees 7-6.

Law & the Courts

This Day in Liberal Judicial Activism—April 14

Rosemary Barkett and President Bill Clinton.

1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”

Law & the Courts

This Day in Liberal Judicial Activism—April 13


2001—Judge Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman. The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.” Barkett asserts that the district court injunction properly barred “public student prayer.”

Law & the Courts

Federal Judge Decries ‘Third Great Assault on Our Judiciary’

Yesterday, the University of Virginia law school awarded Mississippi federal district judge (and UVA law alumnus) Carlton W. Reeves its Thomas Jefferson Foundation Medal in Law. In his acceptance speech, which opens with a moving discussion of the “complication[s]” involved in a black judge’s receiving an award named after Thomas Jefferson, Judge Reeves addresses what he calls the three “great assault[s]” on the federal judiciary.

The first great assault came during the post-Civil War Reconstruction Era, when “the Klan responded to the threat of democratic justice by trying to assassinate black judges, shooting black jurors, and murdering federal court officers.” Reeves presents a powerful summary of the terrible suffering and injustice that blacks in the South endured.

The “second great pushback against the judiciary” was triggered by the Court’s ruling in Brown v. Board of Education. “White power returned to the playbook of the past: smearing judges, shrinking judicial power, and scrubbing diversity from courtrooms.” Reeves provides a poignant account of the education and opportunities he received when that pushback failed.

According to Reeves, “We are now eyewitnesses to the third great assault on our judiciary.” By his account, that assault consists, first and foremost, of various tweets and comments by Donald Trump, both as candidate and as president, slamming various judges and rulings. But you can believe, as I do, that many of those tweets and comments were deplorable without seeing in them anything remotely like the return of the Klan. And you can likewise lament, as I do, that Reeves has received a lot of vicious mail without concluding that the “deliverers of hate who send these messages aim to bully and scare judges who look like me from the judiciary.” (Reeves’s judicial grandstanding on abortion and marriage provide ample non-race-based reasons for people to be upset with him, though that is certainly no excuse for vicious messages.)

Another part of this “third great assault,” Reeves tells us, is the lack of racial and gender diversity in President Trump’s judicial picks. The subtitle of Reeves’s speech—“A Call for Justice, Truth, and Diversity on the Bench”—conveys the absolute value that he assigns to diversity. His talk of “[a]chieving complete gender equality on the federal bench” displays his quota mentality. He also misuses Madison when he quotes him, in Federalist No. 39, as “caution[ing] that it was ‘essential’ a democracy’s officials ‘be derived from the great body of the society.’” Madison was of course talking about the House of Representatives, not the judiciary.

Previous Republican presidents, Reeves contends, have “had no trouble finding women and people of color with suitable judicial philosophies.” After all, “Justice Sotomayor was originally a George H.W. Bush appointee.” Reeves somehow misses that this example illustrates the very opposite of what he intends: In a deal with New York senators, Bush nominated Sotomayor despite grave White House concerns about her judicial philosophy. More generally, I sure wish that those who seem to imagine that lots of blacks and women “with suitable judicial philosophies” are being passed over would offer up some names of interested candidates.

I’m also not sure how it’s proper for a federal judge to be criticizing a president’s judicial picks. But Reeves goes even further. In faulting judicial nominees for refusing to address whether Brown v. Board of Education was rightly decided, he supports Senate Democrats’ smear game. In a stealth slam of the five conservative justices, he cites Justice Kagan’s recent dissent in a death-penalty case (which I discussed here) for the proposition that “injustice happens when courts place expediency and finality ahead of truth.” He also faults the Supreme Court for its own “narrow set of perspectives” and even wonders “What Dred Scotts and Plessys will be handed down” by it.

Law & the Courts

Taking Senior Status—Part 2

Let’s now examine an appellate judge’s decision to take senior status in terms of how it affects the by-party-of-appointing-president composition of a court of appeals. To make things less abstract, I’ll use examples that reflect our current situation in which a Republican president would fill the vacancies.

If a judge who was appointed by a Republican president elects senior status and President Trump then fills the vacancy, the new appointment would preserve the pre-existing mix of Republican and Democratic appointees among active judges. At the same time, it would provide a net addition to the court’s workforce of judges (active plus senior) appointed by Republican presidents that would be equal to the caseload that the senior judge chooses to carry.

If a judge who was appointed by a Democratic president elects senior status and President Trump then fills the vacancy, the new appointment would of course increase by one the number of Republican appointees among the active judges on the Court and decrease by one the number of Democratic appointees. The impact that it would have on the court’s overall workforce of judges would depend on the caseload that the senior Democratic judge would carry. If, for example, that judge chose to carry a two-thirds workload, the net effect would be to increase the Republican appointee share of the overall workforce by one judge and to reduce the Democratic appointee share by the equivalent of one-third of a judge.

If judges were basing their decisions on whether or not to take senior status entirely on how their decisions would affect the by-party-of-appointing-president composition of their court, it would therefore be sensible for Republican-appointed judges to take senior status now and for Democratic-appointed judges not to. (Again, I’m focusing on our current situation; the incentives would of course be reversed if we had a Democratic president. I’ll set aside for now the complications that would result if the president and the Senate majority were of opposite parties.) That’s the basis on which Hugh Hewitt has urged senior-eligible Republican appointees to take senior status.

The reality, of course, is that a judge’s decision to take senior status involves a mix of additional considerations. For any judge, the strongest consideration in favor would be the desire for a reduced caseload. A Republican-appointed judge who intends to maintain a full caseload for the foreseeable future might well see some downsides in taking senior status: no longer taking part in en banc proceedings, for example, and no longer being the presiding judge on three-judge panels. At the same time, that judge will realize that delaying a decision to take senior status presents the risk that a future president of the opposite party will fill the judge’s seat with someone of a very different judicial philosophy. How any judge would assess the overall mix of factors is impossible to discern from a distance.

Law & the Courts

Taking Senior Status—Part 1

Given my recent posts on senior-eligible judges, I figured that I’d provide some additional context and, in this post and the next one, discuss specifically the effect of a judge’s taking senior status.

Under the statutory Rule of 80, a judge becomes pension-eligible when the judge’s age plus total years of service on an Article III court (including district courts and, as I was recently reminded, the Court of International Trade) equals 80, so long as the judge is at least 65 and has served at least 10 years. Age and years of service are counted in full years, not fractions. (See 28 U.S.C. 371.)

A judge who has satisfied the Rule of 80 has three choices:

(1) The default choice is to continue in active service.

(2) The judge may choose to retire, in which case the judge will, “during the remainder of his lifetime, receive an annuity equal to the salary he was receiving at the time he retired.” (28 U.S.C. 371(a).)

(3) Or the judge may choose to take senior status. A judge in senior status may choose what caseload to carry. A senior judge who carries at least a one-quarter share of the work of an active judge receives the same annual cost-of-living salary increases that active judges receive. (28 USC 371(b), (e).)

In either option 1 or option 3, the judge is essentially working for free—apart from the annual cost-of-living increases in the judicial salary.

A vacancy is created when a judge retires or takes senior status. For purposes of a court’s judicial workforce, there is one big difference between the two options. When a judge takes senior status, filling the vacancy provides a net addition to the workforce (with that net addition equal to the senior judge’s continuing caseload). By contrast, when a judge retires, filling the vacancy merely restores the judicial workforce to its previous level.

In my previous posts setting forth the composition of each court of appeals by party of appointing president, I have counted only judges in active service. If you actually want to understand the odds of getting, say, a panel with a majority of appointees of presidents of one political party, you’d also want to factor in the senior judges (as well as visiting judges). But the courts keep confidential the caseload of each senior judge, so it’s impossible to know how much to count a senior judge (i.e., as a one-fourth equivalent of a full judge or as a full judge or as something else).

Overall, there are 78 sitting senior appellate judges who were appointed by Republican presidents and 37 who were appointed by Democratic presidents, so that’s a total of 115 sitting senior appellate judges. The total number of authorized appellate judgeships is 179. If the average senior appellate judge carries a one-third caseload, that would mean that senior judges are accounting for 17-18% of the overall appellate caseload. (The Administrative Office of the United States Courts says that senior judges, district and appellate combined, “typically handle about 15 percent of the federal courts’ workload annually.”)

The count of judges in active service is much more useful for en banc purposes. But it’s essential to emphasize again that party of appointing president is at best a crude proxy for judicial philosophy. (Also, some courts of appeals allow a senior judge who took part in the panel ruling to take part in the en banc proceeding.)

Law & the Courts

This Day in Liberal Judicial Activism—April 12

Judge Rosemary Barkett.

1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Law & the Courts

The Most Senior Senior-Eligible Judges

A reader who is very knowledgeable about the federal courts has asked me to list all federal appellate judges who are eligible to take senior status and who are 75 or older. His premise is that once judges get around that age, they are more likely to take senior status irrespective whether the sitting president is of the same party as the president who appointed them. I don’t know whether that premise is true, but I will nonetheless indulge his request.

I set forth below the senior-eligible federal appellate judges who will be 75 or older by the end of 2019. I emphasize that some of the judges on the list have passed over plenty of opportunities to retire. Judge Tjoflat, for example, turns 90 in December. He became eligible to take senior status in 1994, so there is no particular reason to expect him to take it now.

Appointees of Republican presidents

Henderson, D.C. Circuit

Torruella, First Circuit

Niemeyer, Fourth Circuit

Wilkinson, Fourth Circuit

Flaum, Seventh Circuit

Kanne, Seventh Circuit

Rovner, Seventh Circuit

Loken, Eighth Circuit

Bea, Ninth Circuit

Smith, M., Ninth Circuit

Tjoflat, Eleventh Circuit

Lourie, Federal Circuit

Newman, Federal Circuit

Appointees of Democratic presidents

Rogers, D.C. Circuit

Tatel, D.C. Circuit

Cabranes, Second Circuit

Pooler, Second Circuit

King, Fourth Circuit

Motz, Fourth Circuit

Dennis, Fifth Circuit

Lucero, Tenth Circuit

Dyk, Federal Circuit

Law & the Courts

Re: How Future Vacancies Could Transform the Federal Courts of Appeals

In my post yesterday, I presented the “Potential new” composition of each federal court of appeals on the farfetched assumption that all senior-eligible judges stepped down and were replaced by appointees of President Trump. Here I present the more pessimistic scenario in which no senior-eligible judges step down before the 2020 election and a Democratic president takes office in 2021 and is able to replace those judges. (My numbers assume that President Trump fills the current vacancies.)

D.C. Circuit, now 4 R, 7 D, would become 2 R, 9 D

First Circuit, now 2 R, 4 D, would become 1 R, 5 D

Second Circuit, soon to be 6 R, 7 D, would become 5 R, 8 D

Third Circuit, now 7 R, 6 D, 1 V, would become 7 R, 7 D

Fourth Circuit, now 6 R, 9 D, would become 3 R, 12 D

Fifth Circuit, now 11 R, 5 D, 1 V, would become 8 R, 9 D

Sixth Circuit, now 10 R, 6 D, would become 8 R, 8 D

Seventh Circuit, now 9 R, 2 D, would become 5 R, 6 D

Eighth Circuit, now 10 R, 1 D, would become 7 R, 4 D

Ninth Circuit, now 9 R, 16 D, 4 V, would become 8 R, 21 D

Tenth Circuit, now 5 R, 7 D, would become 4 R, 8 D

Eleventh Circuit, now 6 R, 6 D, would become 4 R, 8 D

Federal Circuit, now 4 R, 8 D, would become 1 R, 11 D

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