Law & the Courts

This Day in Liberal Judicial Activism—September 24

President Bill Clinton speaks in the briefing room of the White House, June 16, 1998. (Gary Cameron/Reuters)

1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population.

Law & the Courts

Abortion Providers File Extraordinary Petition for Certiorari Before Judgment


The abortion providers challenging the Texas Heartbeat Act currently have their case pending in the Fifth Circuit, with oral argument on jurisdictional issues scheduled (I’m told) for the week of December 8. But they have just filed in the Supreme Court an extraordinary petition for a writ of certiorari before judgment, asking the Court to jump past both the district court and the Fifth Circuit to decide the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

A couple of initial comments:

1. The abortion providers contend that “[o]nly [the Supreme] Court’s immediate intervention will ensure that Texans’ federal constitutional rights are protected.” But the Department of Justice, with much fanfare, has filed its own lawsuit against Texas over the Texas Heartbeat Act. The federal district judge in the DOJ case has scheduled a hearing on DOJ’s motion for a preliminary injunction for next Friday, October 1.

If my quick review is correct, the abortion providers make no mention of that lawsuit, other than to draw on various of the declarations that DOJ filed.

Do the abortion providers believe that DOJ’s lawsuit will surely fail? If so, why? If not, doesn’t that cut strongly against the extraordinary intervention that they seek from the Court?

2. When the Supreme Court denied the abortion providers’ previous application for emergency relief, the per curiam majority observed that their application “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Nothing has changed on that score. So why should the Court grant certiorari? Why not benefit from the Fifth Circuit’s consideration of those antecedent questions?

Law & the Courts

Ninth Circuit Dislodges Homelessness Czar’s Seizure of Power


Back in April, I highlighted an “astounding” ruling by federal district judge David O. Carter that ordered the City of Los Angeles and the County of Los Angeles to take a broad set of actions to address the area’s homelessness crisis, including requiring the city to place one billion dollars in escrow under Carter’s supervision. In a ruling today (in LA Alliance for Human Rights v. County of Los Angeles), a unanimous panel of Ninth Circuit judges, all of whom were appointed by President Obama, has rejected Carter’s effort to appoint himself homelessness czar.

In her opinion for the panel, Judge Jacqueline Nguyen observes that Carter’s order “is premised on [his] finding that structural racism … is the driving force behind Los Angeles’s homelessness crisis.” But whether or not that is so, “none of Plaintiffs’ claims is based on racial discrimination, and the district court’s order is largely based on unpled claims and theories.” Further, the plaintiffs “failed to put forth evidence to establish standing,” and Carter “impermissibly resorted to independent research and extra-record evidence.”

Law & the Courts

Infra-DIG Diversion Gambit in Dobbs


Infra dig (from the Latin infra dignitatem, meaning beneath one’s dignity) is an apt description of the anemic suggestion by the respondent abortionists in their merits brief in Dobbs v. Jackson Women’s Health Organization that the Court dismiss as improvidently granted—or DIG, in the Court’s jargon—the state of Mississippi’s certiorari petition.

Let’s put things in context:

1. When the Court granted certiorari in May, it specifically did so “limited to Question 1 presented by the [state’s] petition.” That Question 1 reads: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” (Emphasis added.)

Supreme Court Rule 14.1(a) expressly provides that “The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” The question whether “all pre-viability prohibitions on elective abortions are unconstitutional” necessarily implicates the question of what the proper constitutional standard is, which in turn “fairly include[s]” the questions whether Roe v. Wade and Planned Parenthood v. Casey are faithful to that standard, and, if they are not, whether they should be overturned.

Indeed, given Casey’s embrace of “the central holding of Roe” that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”—“[r]egardless of whether exceptions are made for particular circumstances”—it is difficult to understand how anyone would fail to recognize that the question “Whether all pre-viability prohibitions on elective abortions are unconstitutional” presents at bottom the question whether Roe and Casey should be overturned. (The issue would be very different if Question 1 were limited to “Whether all pre-viability prohibitions on elective abortions are impermissible under Roe and Casey.”)

Respondents’ own argument—the one argument that I think they have right—that there are “no half-measures” available in Dobbs between overturning Roe and Casey, on the one hand, and applying and affirming them to invalidate Mississippi’s law, on the other, proves the point. The idea that the justices who voted to grant certiorari on Question 1 after many months of deliberation somehow did not understand what Question 1 entailed (even as they denied certiorari on the narrower questions that Mississippi’s petition presented) is ludicrous.

That is why the Court’s grant of certiorari on this question was widely and immediately understood to tee up Roe and Casey for overruling.

That is why the same-day New York Times article on the grant of certiorari was titled “Supreme Court to Hear Abortion Case Challenging Roe v. Wade” and prominently highlighted supporters of abortion rights who denounced the grant as “signaling a willingness to revisit Roe” (NYT’s summary) and as setting up “a test case to overturn Roe.”

That is why SCOTUSblog reported the same day that the case “could upend the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.”

That is why the Los Angeles Times editorial board stated the same day that the “enormously important” question in Dobbs meant that “There are basically two ways for the court to go: gut Roe vs. Wade or reaffirm it.”

That is why NARAL issued a same-day press release that declared that “There is no path for the Supreme Court to uphold Mississippi’s abortion ban without overturning Roe’s core holding.”

That is why an NBC News analysis the very next day stated that the certiorari “is a signal that the court is ready to overturn Roe v. Wade” and that Dobbs “lunges straight at [Roe’s] heart.”

Et cetera, et cetera.

2. To be sure, Mississippi argued in its petition that “the questions presented in this petition do not require the Court to overturn Roe and Casey” (emphasis added) but “merely … to reconcile a conflict in its own precedents.” But Mississippi went on to argue that if it would lose under Roe and Casey—if, that is, “the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate”—then the Court “should not retain erroneous precedent” (i.e., should overturn Roe and Casey).

The respondents complain that Mississippi “mentioned the notion [of overturning Roe and Casey] only in a threadbare footnote.” But that complaint ducks the fundamental point that the question is “fairly included” in the question on which the Court granted certiorari (and thus need not have been mentioned at all). And the complaint is also wrong, as the certiorari petition argued at length (see especially pp. 14-20) against the soundness of Roe and Casey. E.g.:

Roe’s viability line is arbitrary, constantly moves as medical knowledge increases, and fails to honor the reality that states have substantial interests of their own beginning “from the outset of the pregnancy.

The Court should grant the petition, hold that it is illogical to impose a “rigid line allowing state regulation after viability but prohibiting it before viability,” and uphold the Gestational Age Act.

[T]he Court should grant review and reject “viability” as the bright line for determining when a state may legislate to advance its substantial interests in health, safety, and dignity.

Roe’s viability rule is outdated.

In sum, the viability rule was created outside the ordinary crucible of litigation, failed to take account of the state’s accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best. The Court should revisit it.

3. In City of San Francisco v. Sheehan (2015), the Court dismissed as improvidently granted a question on which the parties’ merits briefs were not in dispute. In so doing, the Court explained that the question “would benefit from briefing and an adversary presentation.”

At the risk of severe understatement, it is plain that no such concern is present here. Dozens of merits briefs, by the parties and their amici, have now been filed on both sides of the question whether Roe and Casey should be overruled.

In sum, there is no conceivable ground for DIGging Dobbs.

Law & the Courts

This Day in Liberal Judicial Activism—September 23

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), the Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

Law & the Courts

This Day in Liberal Judicial Activism—September 22

Senator Barack Obama (D-IL) listens during a news conference in the Capitol in Washington on February 6, 2007. (Kevin Lamarque/Reuters)

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Law & the Courts

Does the EEOC Really Get to Decide Whether RFRA Applies in Employment-Discrimination Lawsuits?

LGBTQ activists and supporters hold a rally outside the U.S. Supreme Court as it hears arguments in a major LGBT rights case on whether a federal anti-discrimination law that prohibits workplace discrimination on the basis of sex covers gay and transgender employees in Washington, U.S., October 8, 2019. (REUTERS/Jonathan Ernst)

Earlier this month, a federal district court in North Carolina rejected Charlotte Catholic High School’s religious defenses against a Title VII claim of sex discrimination allegedly based on an employee’s sexual orientation. The case, Billard v. Charlotte Catholic High School, was brought by Lonnie Billard, a male substitute drama teacher, who was fired “for his support of gay marriage” (contrary to Catholic doctrine) after he posted on Facebook about his upcoming civil marriage to another man.

The religious school was not willing to employ teachers who openly oppose Church teachings the school is responsible for imparting and modeling to its students. Indeed, the high school’s Catholic school system was consistent in its treatment of employees who openly flouted the Catholic Church’s teachings on marriage and sexual relations, whether or not they were homosexual. This included dismissing a male teacher for having an extra-marital affair, a male teacher for adopting a child with his same-sex partner, and a female teacher for planning to marry a divorced Catholic man who did not secure an annulment of his prior marriage from the Church.

The Catholic school argued that the Religious Freedom Restoration Act (RFRA) protected its right to select and employ substitute teachers who do not engage in conduct or publicly advocate positions contrary to Church doctrine. RFRA was passed in 1993 with overwhelming bipartisan support and signed into law by President Bill Clinton in the wake of the Supreme Court’s 1990 Employment Division v. Smith case that gutted First Amendment Free Exercise Clause protections. Under RFRA, the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The district court in Billard held that “RFRA does not apply to suits between purely private parties,” such as the one between Billard and Charlotte Catholic High School, citing several circuit and district courts that held RFRA’s protections are only available if the federal government is a party. The district court, however, noted that the Fourth Circuit, which handles appeals from North Carolina federal district courts, has not yet decided the issue.

The dispute over when RFRA applies is based on how best to interpret the statutory text. The Billard court (and others) point to two phrases. First, RFRA permits a person whose religious exercise has been burdened to raise a claim or defense “in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). Second, a burden on religious exercise is permitted only if the government demonstrates a compelling interest achieved by the least restrictive means. “Demonstrates” is defined as “meet[ing] the burdens of going forward with the evidence and of persuasion.” Taken together, both of these phrases, according to the court, contemplate a scheme only where the government is a party, presenting evidence and argument in court and against which relief must be obtained.

The other side points to RFRA’s sweeping language. RFRA “applies to all Federal law, and the implementation of that law.” “Government” includes any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Its stated purposes are “to provide a claim or defense to persons whose religious exercise is substantially burdened by government” and to apply “in all cases.” Notably, defenses do not provide relief against the government (or otherwise). They merely defeat liability or the application of the law to the defendant.

Who is burdening Charlotte Catholic High School’s exercise of religion: Billard or the government? Here, it is the government in the form of potential court enforcement of Title VII liability. In response to that burden, the school raised an RFRA defense, claiming there was no compelling government interest in forcing it, under penalty of court sanctions and court-awarded damages, to retain teachers who publicly oppose Catholic teachings on marriage.

Ironically, the very case that gave Billard his cause of action — Bostock v. Clayton County — specifically described RFRA as a “super statute” that “might supersede Title VII’s commands in appropriate cases.” Yet Billard failed to address the Supreme Court’s pronouncement, which calls into question the pre-Bostock RFRA cases the court relied on. What are “appropriate” Title VII cases if not teachers at religious schools?

Under Billard’s reasoning, if the Equal Employment Opportunity Commission (EEOC) — the federal agency charged with enforcing Title VII and other laws prohibiting employment discrimination — had sued on behalf of the teacher, RFRA would be available as a defense.

To bring a Title VII claim in federal court, an employee (or applicant) must first file a charge of discrimination with the EEOC. The employer is required to issue a position statement in response and will often include any applicable defenses. If the EEOC finds that reasonable cause exists for the employee’s discrimination claim, the EEOC will try to conciliate the case with the employer, at which point an employer claiming an RFRA defense would likely raise it. If the case does not settle, the EEOC would choose either to file a lawsuit against the employer or issue a notice of right sue to the employee (a necessary step before employees can sue on their own in federal court under Title VII).

Consider three different scenarios, all of which involve the same claim of employment discrimination against a religious employer.

  1. EEOC sues on behalf of the employee.
  2. EEOC sues and the employee intervenes as a private-party plaintiff.
  3. EEOC issues a notice of right to sue, and the employee sues as a private-party plaintiff.

According to Billard, the religious employer could raise an RFRA defense in the first two scenarios, but not the third. Notably, there is no suggestion that the RFRA defense applies unequally in mixed-party suits, such that RFRA would apply only to the federal government and not to the private-party plaintiff.

But can an employer’s rights to religious freedom and an employee’s rights to nondiscrimination really be a function of which party sues on behalf of the alleged injured employee? Or more specifically, whether the EEOC sues?

Under Billard, if the EEOC brings or intervenes in a lawsuit on behalf of an employee, and the court recognizes an RFRA defense, then the employee loses the nondiscrimination claim. But if the EEOC declines to bring a lawsuit where the religious employer could have brought a successful RFRA defense, then the employer loses its rights to religious exercise. That can’t be right. Otherwise, the EEOC could put its thumb on the scales and purposely avoid becoming a party in lawsuits against religious employers to deprive them of a potentially winning RFRA defense.

Instead, RFRA should be available “in all cases” as a defense whenever the government substantially burdens religious exercise through “all Federal law, and the implementation of that law” — regardless of whether the government is a party to the lawsuit. After all, it is the federal courts themselves that would ultimately impose the substantial burdens on religion — here, in the form of Title VII liability and damages as the district court held.

Law & the Courts

Ruth Marcus on How to Lobby Justice Kavanaugh


In the Washington Post, Ruth Marcus offers very mixed criticism of the abortion activists who marched on Justice Kavanaugh’s home last week “to protest his vote allowing the Texas abortion law to take effect.”

On the one hand, Marcus says that the protesters “were within their rights” (that’s far from clear) and that she is “aggrieved by Kavanaugh’s vote, too.” (Never mind that his vote against emergency relief on procedural grounds was clearly correct.) She even implausibly compares their protest at his home to the annual March for Life on Constitution Avenue.

On the other hand, Marcus acknowledges that it’s “intimidating, even terrifying, to have people turn up at your home”—a “kind of bullying [that] goes too far.” Plus, in what Marcus seems to regard as the decisive factor, “[i]t’s also, in the case of Kavanaugh and the court, apt to be counterproductive,” especially regarding the pending Mississippi abortion case.

Much like law professor Noah Feldman’s pitch to Kavanaugh to “become the new Kennedy,” Marcus presents Kavanaugh as someone who, above all, “wants to be liked and admired,” who wants to “win plaudits from those [in the legal establishment] whose acceptance he still craves.”

What a demeaning depiction. But it gets worse. Marcus also posits that Kavanaugh might “want[] to avoid deciding the Mississippi case in a way that [she thinks] would likely hurt Republicans in the midterm elections a few months later.”

I’ll repeat basically what I said in response to Feldman’s plea: I expect that Kavanaugh’s jurisprudential principles, including the discussion of precedent that he set forth in his concurrence in Ramos v. Louisiana (2020), will lead him to reject Roe v. Wade and Planned Parenthood v. Casey and that he will strive in Dobbs v. Jackson Women’s Health Organization, just as in other cases, to do his constitutional duty to rule based on the law, not to feed his ego or do political favors.

Law & the Courts

Badly Botched ‘Originalist Case for an Abortion Middle Ground’


Last week, law professor Aaron Tang posted a long article titled “The Originalist Case for an Abortion Middle Ground.” In that article, Tang disputes the proposition that, “at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy.” The actual number, he argues, was 15.

Tang somehow imagines that his argument, if it were correct, would undermine the predominant originalist position against a constitutional right to abortion. But he badly misunderstands that position.

To state the matter most simply, the originalist proposition that the states have the authority to prohibit elective abortion does not depend at all on whether 27 or 17 or seven states prohibited abortion from conception at the time the 14th Amendment was enacted. Under standard originalist methodology, any of those counts would place on proponents of a constitutional right to abortion a very high burden of demonstrating that the original public meaning of the 14th Amendment somehow disallowed those state laws. To be sure, the higher the number, the more patently ridiculous the originalist argument for a right to abortion is. But Tang is simply wrong to posit that the originalist argument against a right to abortion depends on what he calls the “27-states claim.”

When a state chooses to allow an action, it does not ordinarily imply that it lacks the power to prohibit the action. By contrast, when it chooses to bar an action, it ordinarily conveys its belief that it has the power to do so.

In other words, even if Tang were right that, at the time the 14th Amendment was ratified, there were 22 states in which “pregnant persons [sic] were free to obtain an abortion at any time before quickening,” he’s utterly wrong to think that that datum ought to lead originalists to conclude that the 14th Amendment protects a constitutional right to abortion before quickening. If, by his count, 15 states then had laws that barred abortion “at all points in pregnancy,” that establishes a very strong presumption that the 14th Amendment allowed such laws.

What’s more, if the 14th Amendment somehow protected a constitutional right to abortion before quickening, you’d expect that the states that had pre-quickening bans would, immediately after ratification, eliminate those bans. Instead, the trend was in the opposite direction: States that had in place the common-law ban on abortion post-quickening enacted statutes that barred abortion from conception.

In any event, it appears that Tang has gotten his history badly wrong. In a “preliminary rejoinder,” law professors John Finnis and Robert P. George offer what appears to be a devastating demolition of Tang’s claims. Working their way alphabetically through the states in which Tang says that there is “clear [and] specific historical evidence” that the states did not forbid pre-quickening abortion, they rebut Tang’s claims and identify one gross misrepresentation after another. Their bottom line:

To our surprise, Tang’s essay sadly outdoes the articles of Cyril Means on which Roe relied. Just as partisan, the new essay is conceptually even more confused and historically even more error-strewn, at all levels of generality, from big picture to granular case law.

(Finnis and George, I’ll note, argue not merely that the 14th Amendment allows states to prohibit elective abortion from conception but that it compels states to do so.)

Law & the Courts

This Day in Liberal Judicial Activism—September 21

Election officials canvass absentee ballots received on Election Day at a central count facility in Kenosha, Wis., November 3, 2020. (Daniel Acker/Reuters)

2020—In Democratic National Committee v. Bostelmann, federal judge William M. Conley rules that the coronavirus pandemic entitles him to extend various statutory deadlines in Wisconsin election law, including the deadline for online and mail-in registration and for the receipt of mailed ballots. Two weeks later, a Seventh Circuit panel will stay Conley’s order.

Law & the Courts

Woke Federal Court Staff Wanted


You might think that those who administer the federal courts would be keen to attract staffers who could be trusted to carry out their duties impartially. But the Fourth Circuit, in its announcement for a position of appeals case manager, somehow sees fit to state that it “prides itself on being a collegial, collaborative, and progressive organization” and that it wants “strong candidates who share our vision and passion.”

Further, rather than providing the customary assurance that it is an “equal opportunity employer” that does not “discriminate” against applicants based on race or various other grounds, the hiring office states that it is “an Equal Opportunity Employer that values diversity and inclusion.” It thus signals that it will discriminate against applicants in order to advance those “values” of “diversity and inclusion.”

Given the hijinks and bias that have occurred in federal judicial administration, I can’t say that I’m surprised. If only judicial bureaucrats were content to “make[] a difference in administering justice” by being impartial and efficient.

Law & the Courts

Texas Abortionist Seeks Test Lawsuit Under Heartbeat Act


In a Washington Post op-ed, Alan Braid, an abortionist in San Antonio, says that he recently “provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit” under the Texas Heartbeat Act. He says that he did so in order “to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

For three reasons, no one should sue Braid to give him the imagined test case that he is seeking. In ascending order of importance:

1. It’s not at all clear that Braid is actually admitting to have violated the Act. He states that the Texas Heartbeat Act “virtually banned any abortion beyond about the sixth week of pregnancy” and that his recent abortion “was beyond the state’s new limit.” But rather than imposing a time limit, the Act forbids a physician from “perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” (Emphasis added.) I don’t know whether Braid’s language is cagey or sloppy, but it leaves open the possibility that he conducted the required test for the fetal heartbeat but did not detect one. Indeed, his abortion clinic maintains that it is “compliant” with the Act and therefore “cannot provide abortion services to anyone with detectable embryonic or fetal cardiac activity.”

2. It makes no sense for a private person to bring a civil enforcement action under the Act against Braid or any other suspected violator until the Supreme Court has overruled Roe v. Wade and Planned Parenthood v. Casey. Until such overruling — which ought to happen by the end of June 2022 — a lawsuit is bound to fail. (To be clear, it’s not that the Act is actually unconstitutional; it’s instead that it conflicts with the flagrantly unconstitutional holdings of Roe and Casey.) The Act provides a four-year statute of limitations, so there is no point in racing to court before that overruling occurs.

3. In its complaint against the state of Texas, the U.S. Department of Justice contends that private persons who enforce the Act are “agents” of Texas. That contention, which is likely to fail under Fifth Circuit precedent, opens the way for DOJ to bring civil and criminal actions against private civil enforcers for acting “under color of law” to deprive individuals of constitutional rights. Indeed, law professor Laurence Tribe has specifically recommended that DOJ do so. Rather than sue now and expose oneself to those risks and the costs of defending against them, a private enforcer would be far more prudent to wait until DOJ’s action against Texas has failed.

All that said, Braid is wrong to imagine that a “test case” would give him or other abortionists any meaningful relief. What is deterring them from providing post-heartbeat abortions is the prospect of crushing liability for damages for abortions done between now and the time that Roe and Casey are overturned. Even if Braid were to win a lawsuit against him (as I expect he would) for his recent abortion, that victory would do nothing to alter that prospect. The court couldn’t enjoin any of the millions of other potential private enforcers from filing lawsuits down the road. Indeed, Braid would remain liable to another private enforcer even for that same abortion. (The Act makes explicit the ordinary rule that claim preclusion would not operate against persons who were not parties to the first case.)

Law & the Courts

This Day in Liberal Judicial Activism—September 20

(AMAYRA/iStock/Getty Images)

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional.

Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

Law & the Courts

This Day in Liberal Judicial Activism—September 19

The White House in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

Law & the Courts

This Day in Liberal Judicial Activism—September 18

U.S. Court of Appeals for the Ninth Circuit (

2017—Evidently unhappy that a criminal defendant wasn’t making sweeping attacks on the statute under which she was convicted, a Ninth Circuit panel presided over by Stephen Reinhardt issues an extraordinary order, months after oral argument, inviting three left-wing organizations to file amicus briefs that make those attacks.

In May 2020, the Supreme Court, in a unanimous opinion by Justice Ginsburg (in United States v. Sineneng-Smith), will determine that the Ninth Circuit panel “departed so drastically from the principle of party representation as to constitute an abuse of discretion.” Ginsburg faults the panel for its “takeover of the appeal,” for intervening to displace the arguments made by “competent counsel” on Sineneng-Smith’s behalf and to substitute instead a “radical transformation” of the case that “goes well beyond the pale.”

2019—In an action filed by a suspected Al Qaeda-associated terrorist to obtain information related to the CIA’s covert activities in Poland, a divided panel of the Ninth Circuit (in Husayn v. United States) directed the district court to try to “disentangle” information that supposedly wasn’t protected by the state-secrets privilege from that which was.

In July 2020, twelve judges will dissent from the Ninth Circuit’s refusal to rehear the appeal en banc. As Judge Daniel Bress sums things up:

The serious legal errors in the majority opinion, and the national security risks those errors portend, qualified this case for en banc review. The majority opinion treats information that is core state secrets material as fair game in discovery; it vitiates the state secrets privilege because of information that is supposedly in the public domain; it fails to give deference to the CIA Director on matters uniquely within his national security expertise; and it discounted the government’s valid national security concerns because the discovery was only sought against government contractors—even though these contractors were the architects of the CIA’s interrogation program and discovery of them is effectively discovery of the government itself.

Law & the Courts

This Day in Liberal Judicial Activism—September 17

Washington as Statesman at the Constitutional Convention (Junius Brutus Stearns, Image via Wikimedia)

A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

2020Pennsylvania law requires mail-in and absentee ballots to be returned no later than 8:00 p.m. on Election Day. Acknowledging that “there is no ambiguity regarding the deadline and that “there is nothing constitutionally infirm” about it, a narrow majority of the Pennsylvania supreme court nonetheless rules (in Pennsylvania Democratic Party v. Boockvar) that the coronavirus pandemic justifies a three-day extension of the deadline.

Law & the Courts

IWF Report on Transgender Threat to Girls’ and Women’s Sports


The Independent Women’s Forum has issued a comprehensive new report on how allowing males who ID as female to take part in girls’ and women’s sports “undermines Title IX,” “put[s] female athletes at a significant competitive disadvantage,” and in some cases “will deny female athletes the opportunity to compete at all.”

The report, titled “Competition: Title IX, Male-Bodied Athletes, and the Threat to Women’s Sports,” “summarize[s] American law regarding sex discrimination and athletics, analyze[s] the evidence regarding physiological sex differences and the male-female athletic gap, and review[s] testimony from just a few of the many females who have competed with or against male-bodied athletes. It is a valuable resource for anyone interested in this important matter.

(Disclosure: After a colleague highly recommended the report to me, I was pleased to discover that one of its six co-authors is my daughter-in-law.)

Law & the Courts

‘Like a Classic Clown Bop Bag’


Here’s the opening paragraph of Ninth Circuit judge Sandra Ikuta’s dissent today in Chamber of Commerce v. Bonta:

Like a classic clown bop bag, no matter how many times California is smacked down for violating the Federal Arbitration Act (FAA), the state bounces back with even more creative methods to sidestep the FAA. This time, California has enacted AB 51, which has a disproportionate impact on arbitration agreements by making it a crime for employers to require arbitration provisions in employment contracts. And today the majority abets California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it bars only nonconsensual agreements. The majority’s ruling conflicts with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark (2017), and creates a circuit split with the First and Fourth Circuits. Because AB 51 is a blatant attack on arbitration agreements, contrary to both the FAA and longstanding Supreme Court precedent, I dissent. [Some citations omitted or simplified.]

The majority opinion is by Judge Carlos Lucero, visiting from the Tenth Circuit, joined by Judge William Fletcher.

Mark this one for Supreme Court reversal. (Even then-Governor Jerry Brown vetoed similar previous versions of AB 51 on the ground that they were contrary to Supreme Court precedent.) I doubt that the Chamber of Commerce and the other plaintiff business associations will waste their time seeking en banc review in the Ninth Circuit.

Law & the Courts

Judiciary Republicans Confront Ideologues in Contentious Hearing

President Joe Biden delivers remarks about Afghanistan, from the East Room of the White House in Washington, D.C., August 26, 2021. (Jonathan Ernst/Reuters)

Yesterday the Senate Judiciary Committee held a hearing for two circuit nominees, Jennifer Sung for the Ninth Circuit and Beth Robinson for the Second Circuit. They are just two more examples of ideologues nominated by the current president, and committee Republicans deserve kudos for bringing that out.

Jennifer Sung is actually the second Biden circuit nominee to have worked at the Brennan Center, a left-wing dark-money organization, where she spent two years as a Skadden Fellow. (I previously covered the other nominee, Myrna Pérez, who was picked for the Second Circuit after spending most of her career at the Brennan Center.) During Brett Kavanaugh’s nomination to the Supreme Court, Sung signed an incendiary letter to the Yale Law School administration with a number of outrageous statements. Chief among them: calling Kavanaugh, based on his rulings as a D.C. Circuit judge, “an intellectually and morally bankrupt ideologue” and asserting that “people will die if he is confirmed.”

When Senator Tom Cotton asked Sung why she thought Kavanaugh was a “morally bankrupt” man, she described the letter’s statements as “overheated rhetoric, but they were rhetorical advocacy,” and she apologized if they “created the impression that I would fail to respect Justice Kavanaugh’s authority as a Supreme Court justice.”

“Has anyone died as a direct result of Brett Kavanaugh being confirmed to the Supreme Court?” Cotton asked pointedly.

Sung repeated her “rhetorical advocacy only” line. That she was giving a canned response was clear after she repeated that line over and over again as she dodged one Republican senator after another — Ted Cruz, John Kennedy, and Mike Lee — asking her specifically whether she believed what she signed.

So is “overheated rhetoric” okay because it is done in the service of “rhetorical advocacy”? Is such a view remotely reflective of a judicial temperament? Such statements do not occur in a vacuum. The night before the hearing, demonstrators gathered outside Kavanaugh’s home engaging in “rhetorical advocacy” in what can only be interpreted as an act of intimidation against a sitting Supreme Court justice. Senator Chuck Grassley took note of that intimidation during the hearing. The “rhetorical advocacy” of 2018 is not over and forgotten. It’s still around perpetuating the bullying and smears.

Several of the Republican senators called Sung out on her lack of judicial temperament, and Kennedy was especially blunt about her evasiveness. To her line that she “would absolutely respect” the authority and precedents of the Supreme Court, he replied:

I don’t believe you. I think you allowed your political beliefs to cloud your judgment, and I think you said a few years ago what you said about Brett Kavanaugh, and I think you believe it. And I can’t imagine what it’s going to be like to be a litigant in front of you, with that demonstration of lack of judicial temperament and judgment. How can a litigant possibly think that you’re not going to act on personal beliefs if you were so intemperate to say something like this?

Beth Robinson for her part raised red flags about her hostility to religious freedom. She had a reputation as an activist lawyer before joining the Vermont supreme court. As an attorney, she represented a woman who during the 1990s sued a printer under a state antidiscrimination law for refusing to print membership cards she made for a group called Vermont Catholics for Free Choice, which opposed the church’s stance on abortion. Malcolm and Susan Baker, the Catholic couple who owned the printer, followed Church teaching and therefore declined to process the order.

That sounds a lot like a case involving a small-b baker, the future Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Robinson’s brief for the plaintiff was hostile to the Bakers’ religious views on a level comparable to the Colorado officials whose conduct earned them seven votes against them, including those of Justices Stephen Breyer and Elena Kagan. As Senator Ted Cruz noted, Robinson’s brief referred to the couple’s views as “invidious” and “pernicious.” When he asked the nominee about those statements, she dug herself into a hole by citing Employment Division v. Smith as the operative precedent, the notably less protective free-exercise precedent whose future is in doubt after the Court’s last term, while ignoring the more on point Masterpiece Cakeshop.

Senator Josh Hawley pursued a similar line of questioning, adding a reference to Robinson’s comparison between the Bakers’ pro-life views and racial discrimination. The nominee failed to answer his question on whether she stands by such a comparison. On the applicable jurisprudence, Hawley specifically asked her about Masterpiece Cakeshop, and she dug herself into a deeper hole by dismissing the applicability of that precedent while returning to Smith as the applicable law from which the Court, in her view, “hasn’t backed away.”

The Republican senators’ questions were probing and effective in highlighting the nominees’ ideological obtuseness and (in Sung’s case) temperamental unfitness for the bench. Yesterday’s hearing underscored just how extreme Joe Biden’s judicial nominees are turning out to be, in contrast to his campaign pledge of moderation and unity. No doubt the left-wing dark-money groups who spent hundreds of millions of dollars to elect him are delighted.

Law & the Courts

DOJ Motion for Injunctive Relief in Texas Heartbeat Act Litigation — Some Observations


Late on Tuesday evening, the U.S. Department of Justice filed its motion for injunctive relief against the state of Texas in its lawsuit over the Texas Heartbeat Act. A few observations:

1. DOJ maintains that it has broad authority to seek “equitable relief to protect interests of the federal government, notwithstanding the absence of express statutory authority to do so.” It argues that the “unique circumstances presented here — including, most notably, S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review through a congressionally conferred cause of action — distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue.” (See pp. 22–28.)

Texas will surely vigorously contest DOJ’s position on this issue. This will likely be a major focus of the dispute, both before federal district judge (and Obama appointee) Robert L. Pitman and on appeal in the Fifth Circuit. It’s a safe bet that Pitman will agree with DOJ and adopt its proposed order. It’s far less clear to me that the Fifth Circuit will do so.

2. Any injunctive relief that Pitman provides will likely be of little or no use to abortion providers in Texas unless and until there is a final ruling from the Fifth Circuit (or Supreme Court) that affirms Pitman’s order. If the injunctive relief is vacated on appeal (including by the en banc Fifth Circuit), the abortion providers will remain liable for any post-heartbeat abortions that they do in the interim. The Texas Heartbeat Act specifically provides that “a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates [the Act],” is not a defense to liability under the Act. Any challenge (on due-process or other grounds) to the operation of this provision strikes me as baseless. Thus, the liability concerns that that have evidently led abortion providers not to violate the Act should remain essentially unchanged in the interim.

3. Indeed, the injunctive relief that DOJ seeks — even if ultimately affirmed — would not provide abortion providers any protection against private lawsuits brought in federal court by residents of other states under federal diversity jurisdiction. To be sure, plaintiffs invoking a federal court’s diversity jurisdiction (unlike plaintiffs in state court) would have to satisfy federal standing requirements and the $75,000 amount-in-controversy requirement. But there may well be plenty of plaintiffs — e.g., prospective adoptive couples who assert that abortion is harming their ability to adopt a baby from Texas — who could plausibly allege injury in fact. And it takes at most eight violations — and probably no more than two or three, given that the statutory damages of “not less than $10,000” applies to every violator — to meet the amount-in-controversy requirement. So the abortion providers’ liability concerns might well remain even if DOJ is victorious in this case.

Law & the Courts

Footnote Conflict on ‘Pregnant Woman’


Footnote 2 in Judge Martha Craig Daughtrey’s majority opinion (joined by Judge Karen Nelson Moore) in Sixth Circuit panel’s divided ruling last Friday in Memphis Center for Reproductive Health v. Slatery:

We use the word “patient” or “person” instead of “woman” where possible, to be inclusive of transgender and non-binary individuals, who also can become pregnant.

Footnote 3 in Fifth Circuit’s unanimous per curiam opinion (Judge Edith H. Jones, Judge Stuart Kyle Duncan, and Judge Kurt Engelhardt) last Saturday in Whole Woman’s Health v. Jackson:

The district court felt moved to “note that people other than those who identify as ‘women’ may also become pregnant and seek abortion services.” This notion, whatever it might mean, ignores that the law applies only to “an abortion on a pregnant woman.” [Citations omitted.]

Law & the Courts

This Day in Liberal Judicial Activism—September 15


1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—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”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark 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 will condemn 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.”

2000—Declaring that a right to abortion “is inherent in the concept of ordered liberty,” the Tennessee supreme court (in Planned Parenthood v. Sundquist) rules that informed-consent provisions and various other state-law regulations of abortion violate the state constitution.

 2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

Law & the Courts

DOJ Lawsuit Against Texas Heartbeat Act—A Quick Overview


Last Thursday, the U.S. Department of Justice, on behalf of the United States, filed suit against Texas over the Texas Heartbeat Act. (For background on the broader controversy, read my posts on the litigation brought by abortion providers against the Act and the Supreme Court’s denial of their request for emergency relief.)

The complaint alleges that the Act has inflicted irreparable injury on the United States in two different respects. First, under a parens patriae theory, the complaint alleges that the Act “injures the United States by depriving women in Texas of their constitutional rights while seeking to prevent them from vindicating those rights in federal court.” (See pp. 15-16.) Second, the complaint alleges that the Act “unconstitutionally restricts the operations of the federal government” (see pp. 16-24)—in particular, the Department of Labor’s Job Corps Program (pp. 16-19), the Office of Refugee Resettlement (p. 19), the Bureau of Prisons (pp. 19-21), the Centers for Medicare and Medicaid Services (pp. 21-22), the Office of Personnel Management (pp. 22-23), and the Department of Defense (pp. 23-24).

The complaint presents three counts: “Supremacy Clause—Fourteenth Amendment” (pp. 24-25), “Preemption” (pp. 25-26), and “Violation of Intergovernmental Immunity” (p. 26).

At DOJ’s request, the case has been assigned to Judge Robert L. Pitman, the Obama appointee handling the litigation brought by abortion providers against the Act. (That litigation is now pending on appeal before the Fifth Circuit on jurisdictional questions.)

Some preliminary observations:

1. The complaint does not undertake to identify the specific causes of action that might underlie its counts. It instead asserts generically that the federal district court “has authority to provide the relief requested under the Supremacy Clause, U.S. Const. art. VI, cl. 2, the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. §§ 1651, 2201, and 2202, and its inherent equitable authority.” Whether and to what extent any of these sources actually creates a cause of action for a particular claim in DOJ’s complaint will likely be a central matter of dispute in the case.

I’ll briefly illustrate the point with respect to the complaint’s first count. As the Supreme Court made crystal clear just a few years ago (in Justice Scalia’s majority opinion in Armstrong v. Exceptional Child Center (2015)), the “Supremacy Clause is not the source of any federal rights and certainly does not create a cause of action.” (Emphasis added, citations omitted, and cleaned up.) Further, the Fourteenth Amendment does not itself create a cause of action but instead only gives Congress the power to enforce its provisions “by appropriate legislation.” So DOJ will need to establish that one of the other authorities it identifies confers a cause of action regarding the injury that it alleges here. It’s not at all clear that it will be able to do so.

2. The relief potentially available to DOJ would seem to differ considerably depending on whether it is aimed to address the federal government’s asserted parens patriae injury or the injury resulting from alleged interference with the federal government’s operations. In the latter case, it might well be enough (if the court were to agree with DOJ) to exempt the federal government’s operations from the application of the Act.

3. DOJ has not yet filed a motion for preliminary-injunctive relief. Once expedited briefing is complete on such a motion, it’s a safe bet that Judge Pitman will give DOJ whatever relief it requests. The real action will be in the Fifth Circuit, including on the threshold question whether to block Pitman’s order pending appeal.

4. One big-picture point: Nothing in DOJ’s claim to have a right to sue to redress its supposed parens patriae injury hinges on the private civil-enforcement provisions of the Act. Thus, if DOJ were to prevail, that would open the door wide to DOJ’s bringing all sorts of individual-rights constitutional claims against whatever state laws offend the current Administration. DOJs in Republican administrations would sue predominantly “blue” states over such matters as gun regulations and racial preferences, while DOJs in Democratic administrations would sue predominantly “red” states on behalf of liberal causes. The end result would be a dramatic escalation in the politicization of DOJ.

Law & the Courts

Judge Thapar’s Persuasive Case against Roe

(Wavebreakmedia/Getty Images)

Judge Amul Thapar has written another strong judicial opinion, this time in reaction to the Sixth Circuit’s ruling in an abortion case decided Friday. The panel opinion in Memphis Center for Reproductive Health v. Slatery struck down two Tennessee abortion restrictions — one applying when a fetal heartbeat is detected, the other when the doctor knows an abortion is sought because of race, sex, or a Down-syndrome diagnosis of a fetus. Thapar did not join the court’s opinion, instead issuing a partial dissent that took on the Supreme Court’s abortion jurisprudence head on.

Thapar acknowledged that Roe v. Wade and Planned Parenthood v. Casey compelled the outcome regarding the heartbeat provision because it applied before viability, but he asserted up front that both “Roe and Casey are wrong as a matter of constitutional text, structure, and history.” He spent the bulk of his 35-page opinion explaining why.

First, the text:

​​No one, including the Roe majority, contends that such a right exists in the text of the Articles of the Constitution. Instead, jurists and commentators point to the Bill of Rights or the Fourteenth Amendment. But you won’t find the word “abortion” (or any equivalent) there either. Indeed, many thoughtful legal scholars, including those who support abortion as a policy matter, have expressed skepticism of or outright hostility to the idea that the Constitution explicitly provides a right to abortion. The text does not bear it out. [footnote omitted]

A right can be discerned when it is “deeply rooted” in our “history, legal traditions, and practices,” but “this is a tough test to pass. And rightly so. After all, when the judiciary recognizes a new right, we take the decision away from the American people. The Roe majority claimed that a right to abortion easily clears that high hurdle. But in doing so, it rewrote history.” Of course abortion has no such historical pedigree, and the Roe majority’s reliance on “suspect sources” plagued by “historical errors” to try to establish otherwise “is just one of many reasons why historians and jurists have roundly criticized Roe’s historical foundations since the day it came down.”

Thapar buttressed his point with this gem in one of his footnotes referencing other sources that demolished Roe’s history:

I am aware that the Roe majority offered a fleet of additional historical arguments ranging from the views of the Persians and ancient Greeks on abortion to the Hippocratic Oath. But at some point, I must follow the mercy rule for the sake of both Roe and the reader. Gluttons for punishment can look elsewhere for a more thorough demolition of Roe’s historical foundations.

Not only was there no affirmative right to abortion in early America, but

almost every state and territory had in fact passed laws limiting or prohibiting abortion by the end of the nineteenth century. By contrast, the Roe majority did not provide a single example of a state that legally guaranteed an affirmative right to abortion at either the time of the Founding or during the Reconstruction Era. That silence is not just deafening. It should end the debate.

Under any test for evaluating the historical pedigree of an alleged right, the right to an abortion does not just miss the mark. It flunks out.

For good measure, Thapar took on living constitutionalism with a call for some judicial humility, quoting Edmund Burke:

I would not take the living constitutional route. Dismissing our constitutional text and history—as the Casey plurality did—is never wise. After all, we must remember that because “the private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.”

He proceeded to eviscerate Casey’s hopelessly unworkable undue-burden standard:

What constitutes an “undue burden”? How about a “substantial” obstacle? What’s a large fraction? How do you calculate the denominator? What about the numerator? How do we balance a state’s interests in preventing fetal pain, safeguarding the unborn child’s life, and preserving the integrity of its medical profession with a woman’s interest in obtaining an abortion? Should we update the undue burden test as neonatal science teaches us new things? How do you know if a law prohibited a woman from obtaining an abortion or merely persuaded her to choose life? And how can we divine future consequences from pre-enforcement challenges? Each of these questions—and there are many more—layers discretion upon discretion. Put any three judges on a panel and you could get three different—and equally reasonable—answers for each question.

The undue burden test is “hopelessly unworkable in practice.” And it is unworkable because it is neither a clear rule nor a judicially manageable standard. The test has the added vice of being untethered from constitutional or statutory text. Instead, it takes judges out of our Article III role and makes us answer questions better left in the hands of legislatures. The Founders understood the danger of this. So should we. [citations omitted]

Thapar appealed to the Supreme Court to do what he as a circuit judge could not:

Only the Supreme Court can tow our jurisprudence back to the safe harbor of democratic legitimacy. . . .

Justice Holmes once remarked that “a page of history is worth a volume of logic.” The argument that the Constitution contains a right to abortion has neither. As shown above, the historical evidence is clear. The Constitution leaves decisions like this to the states. The state legislatures can do what we can’t: listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly. And if the public is unhappy, it can fight back at the ballot box. The courts should return this choice to the American people—where it belongs. [citation omitted]

Thapar is exactly right that Roe and Casey are wrong as a “matter of constitutional text, structure, and history.” I applaud his thoughtful and well-reasoned opinion explaining just how very harmful it has been to our republic and the Court’s own integrity for the “manufacture[d] right to abortion” of Roe and Casey to move the “policy debates from the country to the courtroom.”

Kudos to him for having the courage to say out loud what most federal judges know well but dare not say.

Law & the Courts

Powerful Opinion by Judge Thapar on Illegitimacy and Unworkability of Roe/Casey Regime


On Friday, a Sixth Circuit panel majority ruled (in Memphis Center for Reproductive Health v. Slatery) that two provisions of Tennessee abortion law are constitutionally impermissible. Specifically, the majority (opinion by Judge Martha Craig Daughtrey, joined by fellow Clinton appointee Karen Nelson Moore) ruled (1) that a ban on post-heartbeat abortions imposes an “undue burden” before viability under Planned Parenthood v. Casey, and (2) that prohibiting abortion when the abortionist “knows” that the pregnant woman “is seeking the abortion because of the sex of the unborn child … because of the race of the unborn child … [or] because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in the unborn child” is impermissibly vague.

Writing separately, Judge Amul Thapar explained that Supreme Court precedent compelled him to concur in the first ruling but that the majority’s second ruling turned on “[l]aw professor hypotheticals and dreamed-up scenarios” that defy precedent and that, if applied elsewhere, would mean that “no statute could pass constitutional muster.” (See pp. 37-38, 63-70.)

More notably, while explaining that he was bound to apply the Court’s Roe/Casey regime, Thapar also powerfully expounded how the Roe/Casey framework “conflict[s] with the original understanding of the Constitution,” “cannot be justified under any modern approach to constitutional interpretation” and “has proven unworkable in practice.”

Among other things: The Roe majority “rewrote history” in trying to claim that a right to abortion has a strong historical foundation. (Pp. 42-50.) The living-constitutionalist argument for abortion ignores that abortion “remains one of the most hotly contested issues in American life,” that “‘the United States is an outlier within the international community’ when it comes to abortion,” and that “the steady march of science undermines” Roe’s agnosticism about when the life of a human being begins and Casey’s arbitrary adoption of a viability line. (Pp. 50-55.) And Casey’s “undue burden” test “has proved inherently resistant to neutral and principled application.” (Pp. 55-62.)

Here are some excerpts from Thapar’s opinion on the last point:

What legal rules and doctrines have suffered at the hand of abortion jurisprudence? Statutory interpretation, the rules of civil procedure, the standards for appellate review of legislative factfinding, and the First Amendment to name a few. [Citations omitted.]

Rather than mend the Nation’s fractures, the Casey regime’s lack of concrete guidance has generated decades of bitter litigation and widening circuit splits. Consider, for instance, the circuit split over parental notification requirements. Compare Planned Parenthood v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc), with Planned Parenthood v. Adams, 937 F.3d 973, 985–90 (7th Cir. 2019), and Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995). Or the split about laws requiring abortion providers to make certain disclosures. Compare EMW Women’s Surgical Ctr. v. Beshear, 920 F.3d 421, 430–32 (6th Cir. 2019), and Planned Parenthood v. Rounds, 686 F.3d 889, 893–906 (8th Cir. 2012), with Stuart v. Camnitz, 774 F.3d 238, 244–50 (4th Cir. 2014). Another divide has emerged over nondiscrimination provisions such as section 217. Compare Preterm[-Cleveland v. McCloud, 994 F.3d [512,] 535 [(6th Cir. 2021), with Planned Parenthood v. Comm’r of Ind. State Dep’t of Health, 888 F.3d 300, 307–10 (7th Cir. 2018). Even the question of whether states may prohibit certain types of dilation & extraction procedures—namely, the dismemberment of a still-living unborn child—has produced a circuit split. Compare Whole Woman’s Health v. Paxton, No. 17-51060, 2021 WL 3661318, at *1 (5th Cir. Aug. 18, 2021) (en banc), with W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1319 (11th Cir. 2018), and EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 806–07 (6th Cir. 2020). These conflicts, and others like them, highlight that an undue burden is in the eye of the beholder.

Addendum: Carrie Severino provides some other choice excerpts in this post of hers.

Law & the Courts

This Day in Liberal Judicial Activism—September 13

Then-president Donald Trump delivers a statement in the Grand Foyer at the White House in Washington, D.C., January 8, 2020. (Kevin Lamarque/Reuters)

2019—In CREW v. Trump, a divided panel of the Second Circuit reverses a district-court ruling that the plaintiffs did not have standing to pursue their claims that President Trump’s continuing business interests violated the Domestic and Foreign Emoluments Clauses of the Constitution. The panel majority rules instead that two plaintiffs operating in the hospitality industry adequately alleged that they were economic competitors of the Trump businesses and suffered harm as a result of the allegedly illegal acts, and that they therefore satisfied the competitor-standing doctrine.

In dissent, Judge John M. Walker Jr. argues that the majority’s expansive application of the competitor-standing doctrine conflicts with Supreme Court precedent.

Law & the Courts

This Day in Liberal Judicial Activism—September 12

United States Chief Justice John G. Roberts (Jim Young/Reuters)

2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.”

Law & the Courts

This Day in Liberal Judicial Activism—September 11

The entrance to the New York Times Building in New York, June 29, 2021 (Brent Buterbaugh)

2017—In a New York Times interview just days after his retirement from the Seventh Circuit, Reagan appointee Richard A. Posner provides a candid description of his lawless “pragmatism”:

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Law & the Courts

This Day in Liberal Judicial Activism—September 10

Former president Donald Trump speaks at the “Rally to Protect Our Elections” hosted by Turning Point Action in Phoenix, Ariz., July 24, 2021. (Gage Skidmore)

2020—In New York v. Trump, a three-judge district court enjoins the Secretary of Commerce from complying with a presidential directive to include in census data a state-by-state tabulation of the number of aliens who are not in a lawful immigration status.

 In a 6-to-3 vote three months later, the Supreme Court will vacate the district court’s order: the  case “is riddled with contingencies and speculation that impede judicial review,” and “the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature.”

2020—Less than two months before the upcoming presidential election, federal district judge Douglas Rayes (in Arizona Democratic Party v. Hobbs) enjoins Arizona’s law that requires early voters to have signed their ballots by 7:00 p.m. on Election Day in order to have their votes counted. Rayes orders Arizona to institute a new procedure that would give voters up to five days after voting has ended to sign their ballots.

Four weeks later, a unanimous Ninth Circuit panel (with a majority of Democratic appointees) will block Rayes’s injunction from continuing in effect pending appeal.

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This Day in Liberal Judicial Activism—September 9

U.S. Army 101st Airborne soldiers arrive back at Bagram base after fighting in the Shahi Kot mountains of Afghanistan, 2002. (Jim Hollander/Reuters)

1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for Mar. 1.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”

2010—In California, federal district judge Virginia A. Phillips rules (in Log Cabin Republicans v. United States) that the Don’t Ask, Don’t Tell law governing homosexuals in the military violates substantive due process and First Amendment speech rights and that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

The Obama administration’s sabotage of Don’t Ask, Don’t Tell litigation—including then-Solicitor General Elena Kagan’s irresponsible failure to seek review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell—helped set the stage for Phillips’s ruling. Indeed, Phillips states several times in her opinion (in slightly different formulations) that the Department of Justice “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” But Phillips compounds the Obama administration’s malfeasance by misstating and misapplying the relevant standard for facial challenges.

Law & the Courts

This Day in Liberal Judicial Activism—September 8

President Ronald Reagan meets with Robert Bork in the White House, October 9, 1987. (White House Photographic Collection/Wikimedia Commons)

1987—While ten members of the American Bar Association’s judicial-evaluations committee sensibly give Supreme Court nominee Robert H. Bork the highest rating of “well qualified,” four members indulge their ideological biases and rate him “not qualified.”

The four members hide behind the cloak of anonymity, but years later they will be reported to be Jerome J. Shestack, Joan M. Hall, Samuel Williams, and John Lane.

Law & the Courts

This Day in Liberal Judicial Activism—September 7

A sign placed on the walkway to a neighborhood polling place on election day in Fort Lauderdale, Fla. ( Jillian Cain/GettyImages)

2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly never “mentioned—or even hinted at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

 2016—State superior court judge Thomas Moukawsher appoints himself czar of Connecticut’s public schools.

As this Hartford Courant article reports, Moukawsher “ordered the state to come up with a new funding formula for public schools”; “directed the state to devise clear standards for both the elementary and high school levels, including developing a graduation test”; “ordered a complete overhaul of Connecticut’s system of evaluating teachers, principals and superintendents”; and “demanded a change in the ‘irrational’ way the state funds special education services.”

Further: “Moukawsher’s mandates come with a tight deadline: The remedies he is ordering must be submitted to the court within 180 days.”

As the reporter observes, “It is unclear how the state Department of Education, the legislature and Gov. Dannel P. Malloy will come up with solutions, within six months, to complicated problems that have plagued public education in Connecticut for decades.” Yes, indeed.

Law & the Courts

This Day in Liberal Judicial Activism—September 6

Ranking Member Senator Dianne Feinstein (D., Calif.) questions Supreme Court nominee Judge Amy Coney Barrett during her confirmation hearing on Capitol Hill, in Washington, D.C., October 14, 2020. (Bonnie Cash/Pool via Reuters)

2016—Over the public dissenting votes of ten of its judges, the Ninth Circuit issues an order declining to grant rehearing en banc of a divided panel decision in Oregon Restaurant & Lodging Ass’n v. Perez.

 This case provides a powerful illustration of how liberal judges and bureaucrats will engage in tag-team tactics to override unwelcome precedent and to invent legal obligations that assist favored constituencies. In brief: The unwelcome precedent here was a 2010 Ninth Circuit ruling that held that, by its plain language, a statutory restriction on a restaurant employer’s ability to require waiters to pool tips with non-tipped employees applied only to restaurants that did not pay waiters the minimum wage. Despite this holding, the Department of Labor in 2011 issued a regulation purporting to bar employers from requiring tip pools to include non-tipped employees, even if the employer was paying the tipped employees minimum wage. And in the divided panel decision in Oregon Restaurant, notorious liberal activist Harry Pregerson ruled that the Labor Department regulation was entitled to deference under the Chevron doctrine, even though the circuit precedent from 2010 held that the plain language of the statute meant otherwise.

2017—“The dogma lives loudly within you,” proclaims Senator Dianne Feinstein to Notre Dame law professor, and Seventh Circuit nominee, Amy Coney Barrett. Feinstein’s display of anti-Catholic bigotry in this comment and other questions earns widespread condemnation, including from liberals such as Princeton president Christopher Eisgruber and Harvard law professor Noah Feldman.

Law & the Courts

This Day in Liberal Judicial Activism—September 5


1969—By a vote of 4 to 3, the California supreme court rules in People v. Belous that the exception to California’s abortion ban for abortions “necessary to preserve [the] life” of the mother is “not susceptible of a construction … that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” On that flimsy basis (which the dissenters deride as a “negation of experience and common sense”), the majority invalidates the state’s abortion law. The decisive fourth vote is provided by a justice pro tem whose appointment to the case was engineered by California chief justice Roger Traynor.

 2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.

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This Day in Liberal Judicial Activism—September 4

(utah778/Getty Images)

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.

Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2014—Graham Henry’s saga of proceedings challenging his conviction for a murder in 1986 had finally seemed to come to an end when the Supreme Court denied his certiorari petition in June 2014. But in an extraordinary procedural contortion, the en banc Ninth Circuit instead votes to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

In dissent, Judge Richard Tallman, joined by four other judges, issues an opinion with this memorable opening:

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.

In December, the Supreme Court will take the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in the case. In a transparent effort to avoid having to explain its misconduct, the Ninth Circuit, on December 30, will terminate its proceedings.

2015—By a vote of 6 to 3, the Washington supreme court rules in League of Women Voters v. Washington that the state law authorizing charter schools violates the state constitution. The ruling came just as nine charter schools, serving some 1,200 students, had started the school year, thus (as one article reports) “creating chaos for hundreds of families.”  

 2018—A Ninth Circuit panel, in an opinion by Judge Marsha Berzon, rules (in Martin v. City of Boise) that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”

Some months later, Judge Milan D. Smith Jr. (joined by five of his colleagues) will dissent from his court’s refusal to grant rehearing en banc:

In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit. Under the panel’s decision, local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination. Perhaps most unfortunately, the panel’s opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.

Law & the Courts

This Day in Liberal Judicial Activism—September 3

The Department of Health and Human Services building in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2020—In its steady decline over two decades from being arguably the best federal court of appeals to becoming perhaps the very worst, the Fourth Circuit hits a new low.

Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” By a vote of 9 to 6, the en banc court rules (in Mayor and City Council of Baltimore v. Azar) that the HHS’s regulations implementing Title X are unlawful. Never mind, as Judge Julius Richardson observes in dissent, that the “‘new’ Rule substantially returns the Title X regulations to the version that HHS adopted in 1988, and which the Supreme Court upheld as a permissible interpretation of Title X in Rust v. Sullivan (1991).”

Law & the Courts

A Procedural Abortion Ruling with a Substantive Lesson

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Last night a 5–4 majority of the Supreme Court showed courage and faithfulness to rule of law by refusing to issue a stay or injunction in Whole Woman’s Health v. Jackson — in the face of an onslaught of egregious lies and histrionics from the Left about the case and its procedural posture. But this case involved abortion, so we shouldn’t be surprised by either the Left’s deception and the drama, or the media’s willingness to play along.

Well before it issued its ruling late last night, the Court drew great ire from liberals who were horrified by the prospect that the justices might not prevent the Texas Heartbeat Act from going into effect. That was despite numerous procedural hurdles in the case, most significantly the lack of a proper defendant.

The Court’s brief order — not at all unusual in the emergency-application context — made clear that the procedural issues prevented it from considering the constitutionality of the Texas law. The defendants are state officials plus one private citizen. The state officials claimed they lacked the authority to enforce the Texas law, which allows private citizens to file suit against any person who provides an abortion or aids or abets such an abortion. The one private citizen who was sued stated he has no intention to enforce the law. Absent such authority or intention among the named defendants, the majority concluded, “We cannot say the applicants have met their burden to prevail in an injunction or stay application.” All of that means that, as Ed Whelan has aptly explained, the case did not present a live controversy (i.e., an actual dispute between the parties).

All four dissenters — Chief Justice Roberts, along with Justices Breyer, Kagan, and Sotomayor — issued opinions. Roberts confined his argument to the procedural issue while the other three showed their indignation at Texas’s affront to Roe v. Wade and Planned Parenthood v. Casey. Justice Sotomayor called the Court’s order “stunning” and accused “a majority of Justices” of “bury[ing] their heads in the sand,” allowing “a law that flouts nearly 50 years of federal precedents.” As if the Court’s abortion jurisprudence were not a decades-long exercise in looking the other way when faced with an egregious misreading of the Constitution.

The rhetoric of the dissenters is head-scratching in light of the majority’s straightforward procedural ruling, which stated:

In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

On its face, the Court’s ruling does nothing to prevent a proper challenge to the Texas law in the future, and we very well may see that happen. Nor does the Court’s order address the constitutionality of Roe or Casey. The Court will have the opportunity to examine that question in depth, and with the benefit of full briefing and oral argument, in Dobbs v. Jackson Women’s Health Organization this coming term.

It is unclear whether a procedurally sound challenge to the new Texas abortion law will ever come before the Court. What is predictable is that if the Court renders a narrow decision on Dobbs that does not grapple with its unsound abortion jurisprudence at its core, another case, whether from Texas or elsewhere, will be just around the corner. Indefensible and unworkable precedents like Roe and Casey have a tendency to cause lingering problems until they are dealt with directly. That should be an incentive for the Court to repudiate its abortion aberration once and for all.

We can also predict that the Left’s lies, fearmongering, distortions, Court-packing threats, and general pressure campaigns of all stripes regarding abortion and the upcoming Dobbs case — and the willingness of the media to amplify them — have only just begun.

Buckle up, everybody.

Law & the Courts

Denial Should Have Been Unanimous


Last night the Court denied abortion providers’ beyondaudacious request for emergency relief against the Texas Heartbeat Act by a 5–4 vote. The feebleness of the four dissents shows that the denial should have been 9–0.

In one long paragraph, the per curiam majority (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) explains that the abortion providers’ request “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Federal courts “enjoy the power to enjoin individuals tasked with enforcing laws, not [as so many people mistakenly suppose] the laws themselves.” The abortion providers haven’t shown that the “named defendants can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” (My emphasis.) Thus, there is no occasion to address the “serious questions [raised] regarding the constitutionality of the Texas law at issue.”

The four dissents have one common glaring defect. They fail to explain what relief they would order against which named defendants in a way that would somehow prevent the millions of nonparty individuals from enforcing the Act in hundreds of Texas courts. As I’ve pointed out, by their own account, the harm that the abortion providers allege is the same whether or not they receive full relief against the named defendants. (That’s why they were trying to get the district court to certify statewide defendant classes of judges and clerks.) Thus, they haven’t shown that emergency relief against the named defendants would prevent any injury they allege. They therefore are clearly not entitled to injunctive relief.

Let’s look at the dissents one by one:

The most disappointing — because we should have expected so much better, especially from someone who often presents himself as very serious about jurisdictional limits on judicial power — is the Chief’s (which Breyer and Kagan join). The Chief acknowledges that defendants “may be correct” that “existing doctrines preclude judicial intervention.” That acknowledgment should be enough to require him to deny relief. Instead, he somehow imagines that the Court has the power to “grant preliminary relief to preserve the status quo ante” so that the lower courts can address the “particularly difficult” questions that the case raises. And, again, he also mistakenly assumes that preliminary relief against the named defendants actually could “preserve the status quo ante.”

One bright note for those who fear that the Chief holds extraordinary sway over a couple of his conservative colleagues is that neither of them went south with him.

Justice Breyer (joined by Sotomayor and Kagan) declares that “it should prove possible to apply procedures adequate to [the] task” of preventing threatened imminent constitutional harm. But he doesn’t acknowledge that there are only eight actual defendants in the case, and the alternatives he imagines all depend on a much larger set of defendants.

Amidst extravagant rhetoric that you might find in a New York Times editorial, Justice Sotomayor (joined by Breyer and Kagan) complains that the majority “declined to grant relief because of procedural complexities of the State’s own invention.” Well, yes, that’s one way, I suppose, to acknowledge that the majority applied ordinary and long-established rules to the innovative Texas statute. She also weirdly faults the majority for “belatedly” explaining why it didn’t grant relief on Tuesday evening. Well, maybe the members of the majority were still working their way through the arguments (on a matter in which the abortion providers waited two-and-a-half months before filing their motion for preliminary injunction), or maybe they wanted to extend the usual courtesy of deferring an order until the dissents were ready. Picking up a cheap talking point from the Left, Sotomayor even charges that “a Fifth Circuit panel abruptly stayed all proceedings before the District Court” and doesn’t disclose that the district judge had already entered an order vacating the preliminary-injunction hearing as to all of the governmental defendants.

Justice Kagan, who is plenty smart enough to find a procedural solution if one existed, doesn’t even try to offer one. Instead, joined by Breyer and Sotomayor, she oddly complains that the “majority has acted without any guidance from the Court of Appeals” and “has reviewed only the most cursory party submissions, and then only hastily.” But her complaints ought to be directed against the abortion providers for leapfrogging the Fifth Circuit and asking for relief on an emergency basis (again, after taking two-and-a-half months to file their preliminary-injunction motion). And how can the three liberals complain in this dissent that the majority acted too hastily, while they complain in Sotomayor’s dissent that the majority acted belatedly?

Law & the Courts

This Day in Liberal Judicial Activism—September 2


2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.

In her dissent, Judge Johnnie B. Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) will reverse the Ninth Circuit in June 2004. Not a single justice will express agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion will take four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court will rule that Ring did not announce a watershed rule of criminal procedure.

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

2014—In Wesby v. District of Columbia, a divided panel of the D.C. Circuit, in a majority opinion by Judge Cornelia Pillard, rules that raucous partygoers who were arrested for unlawful entry into a home that they had no legal right to enter were entitled to summary judgment on their claim that the officers lacked probable cause to arrest them and that the officers were not entitled to qualified immunity.

More than three years later, the Supreme Court will unanimously reverse Pillard. Justice Thomas’s opinion for the Court lambastes the D.C. Circuit panel for “fail[ing] to follow two basic and well-established principles of law.” First, the panel majority “viewed each fact in isolation, rather than as a factor in the totality of the circumstances.” Amazingly, the panel thus entirely dismissed from its assessment any fact that was “not sufficient standing alone to create probable cause.” (The quote is from Pillard’s opinion, with Thomas’s emphasis added.) Second, the panel majority “mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation,’” even if they did not dictate such an explanation.

As Thomas sums it up, a reasonable officer could easily have concluded that there was a “substantial chance” that the partygoers had illegally entered the house:

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized.

The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.…

The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them…. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.

On the qualified-immunity question, Thomas sets forth the elementary and “straightforward analysis” that Pillard should have applied. The supposed rule that Pillard extracted from District of Columbia case law was not “settled law,” as it was not supported by the single decision she cited and was indeed undercut by decisions that the “officers cited … in their opening brief” but that Pillard’s opinion inexplicably “failed to mention.”

Law & the Courts

This Day in Liberal Judicial Activism—September 1

Justice Scalia on Capitol Hill (Kevin Lamarque/Reuters)

2016—As Sherlock Holmes once observed, “it is better to learn wisdom late than never to learn it at all.” But the late learner might have the decency to acknowledge her earlier folly.

In a New York Times piece on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case in which the Court rejected a separation-of-powers challenge to the independent-counsel statute:

“It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight.” [Emphasis added.]

Although her readers wouldn’t know it, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, when she complained of its supposedly “fevered tone” and quoted only a four-word “sarcastic reference” in it. Indeed, she regretted back then that the independent-counsel statute did not intrude more on presidential power. Only the use of the independent-counsel statute against President Clinton and others in his administration awakened Greenhouse to the separation-of-powers problems that were manifest to Scalia. (More here.)

2017—In its statement of opposition to President Trump’s nomination of Michigan supreme court justice Joan Larsen to a seat on the Sixth Circuit, People For the American Way complains that her campaign website for her recent judicial election stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say” and that judges “are supposed to interpret the laws; they are not supposed to make them.”

PFAW asserts that these elementary principles are “coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people.”

Never mind that Justice Sotomayor used that same “coded language” when she testified at her confirmation hearing that “The task of a judge is not to make the law—it is to apply the law.” Ditto for statements by countless other Democratic judicial appointees over the years.