Law & the Courts

This Day in Liberal Judicial Activism—August 16


1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.   

Law & the Courts

This Day in Liberal Judicial Activism—August 15


1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) Breyer will serve in that position until for 28 years. His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”   

2000—The New Jersey supreme court rules by a vote of 4-2 (in Planned Parenthood v. Farmer) that a state statute providing for parental notification for abortion violates the state constitution because it treats minors seeking abortion differently from minors who decide to carry their child to term.  

Law & the Courts

This Day in Liberal Judicial Activism—August 13


2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.) 

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment. 

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerfuldissent make clear. 

Law & the Courts

This Day in Liberal Judicial Activism—August 12


2010In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal. 

Law & the Courts

The People Want Attorney General Garland to Enforce the Law


On March 4, 2020, Senator Chuck Schumer stood in front of the Supreme Court declaring to Justices Brett Kavanaugh and Neil Gorsuch that they “have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

On June 8, 2022, a man was arrested for attempting to assassinate Justice Kavanaugh. And now, in August 2022, one hundred days since the draft opinion in Dobbs v. Jackson Women’s Health Organization was leaked, the country is witnessing a dangerous intimidation campaign against the Supreme Court, with protesters converging on the homes of Supreme Court justices, harassing them at restaurants, and calling for their death on social media platforms like Twitter.

Many of the initial protests on homes were driven by a dark-money group called “Ruth Sent Us” that offered stipends to demonstrators. Other groups, including ShutDown DC and Downright Impolite, jumped into the fray. The protests have not ceased since early May—they did not even pause the evening of the Kavanaugh assassination attempt.

A group called “Jane’s Revenge”—which is more of a radical militant network akin to the Weather Underground—has inflicted threats and violence against pro-life pregnancy centers and churches. Democrats did not bat an eye.

Shortly after the Dobbs leak, Virginia Governor Glenn Youngkin and Maryland Governor Larry Hogan wrote Attorney General Merrick Garland requesting that the Justice Department “provide appropriate resources to safeguard the Justices and enforce the law as it is written.” It is clear from the law they referenced, 18 U.S.C. § 1507, that it is illegal to picket at the justices’ residences in an attempt to influence them.

A month later, shortly after the attempt on Kavanaugh’s life, the Justice Department finally responded. The Attorney General of the United States declined to enforce the law. This inaction came from a colleague and friend of Kavanaugh who worked with him on the D.C. Circuit for 12 years.

After the Court released its decision in Dobbs, the violence continued, as did the menacing of the justices who were part of the majority. This time it extended outside their private residences. When protesters showed up at a restaurant where Kavanaugh was dining, demanding the manager kick him out, ShutDownDC offered bounties for spotting and reporting any of the Republican-appointed justices.

There is no denying that Garland is cowering before the woke mob. He won’t protect Supreme Court justices but was quick to go after parents who complained at school board meetings as if they were potential terrorists. Last week, FBI Director Christopher Wray testified in response to questioning from Senator Tom Cotton on why § 1507 was not being enforced that “[o]ur agents are . . . up to their necks enforcing all sorts of laws.” Well.

The bigger picture is that the attorney general is operating according to a partisan compass rather than an objective commitment to the law. And the faction he is appeasing is not a broad constituency of Democrats, but the far Left. JCN recently released the results of a poll in which 58% of respondents agreed that Garland should enforce the law that prohibits protests at the justices’ homes. That included 56% of independents and 50% of Democrats.

The same poll found 61%, including 60% of independents and 52% of Democrats, agreeing that these types of protests undermine our democracy. Some 71%, including 69% of independents and 61% of Democrats, agree that activist groups paying “bounties” for tips about where justices are dining goes too far.

Most Democratic voters want the law to be enforced and judges not to be harassed. But the dark money Left is very invested in this intimidation campaign and has the deep pockets to pursue it. Remember that this is the faction that wants to pack the Supreme Court. They could not muster the votes to support that, but they have found plenty of Democratic politicians who would rather carry water for them than ensure the justices’ safety.

Motivated in part by abortion but also by other causes that are subjects of ongoing litigation, the protests continue at the justices’ homes for the indefinite future because Attorney General Merrick Garland refused to do his job. As long as this inaction continues, the justices’ safety is endangered.

The price is to be paid not only by the justices threatened by the likes of Senator Schumer and radical protesters, but by all of us who depend upon the rule of law. That is why Attorney General Garland must stop cowering before the woke mob and enforce the law.

Editor’s note: This article has been emended since original publication. 

Law & the Courts

This Day in Liberal Judicial Activism—August 11


2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.” 

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no.  

Law & the Courts

This Day in Liberal Judicial Activism—August 9


1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court will void the death sentences that had been imposed on Manson and four other Family members.  

2019—Federal district judge Arenda L. Wright Allen rules (in Grimm v. Gloucester County School Board) that a school board’s policy of assigning students to restrooms based on their biological sex violated the rights of a female student who identified as male under both the Equal Protection Clause of the Fourteenth Amendment and the federal statute known as Title IX. 

(One year later, a divided Fourth Circuit panel will affirm Judge Allen’s ruling, and in June 2021 the Supreme Court will deny the school board’s petition for certiorari.) 

Law & the Courts

This Day in Liberal Judicial Activism—August 8


2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.” 

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL will pull the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report against presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.   

Law & the Courts

This Day in Liberal Judicial Activism—August 7

(Andrew Kelly/Reuters)

2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

2019Sometimes the repeat offender is the judge, not the criminal defendant.

Federal district judge Sheryl Lipman evidently wasn’t happy when the Sixth Circuit reversed her for imposing a sentence of a mere 12 months of home confinement on Dane Schrank, who pled guilty to possession of child pornography for downloading “nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated.” So on remand (in U.S. v. Schrank) Lipman imposes the same soft sentence. Never mind that the Sentencing Guidelines advise a sentence of 97 to 120 months in prison.

A year later, the Sixth Circuit will again vacate Lipman’s sentence as “fundamentally unjust” and will remove her from the case.

2020Mr. Adams began a birth control regimen to end his menstrual cycle.” Such is the denial of biological reality that pervades the Eleventh Circuit panel majority’s ruling in Adams v. School Board of St. Johns County. On the premise that Drew Adams, a girl who identifies as male, is really a boy, Judge Beverly Martin rules that a school board violated the Equal Protection Clause and Title IX by barring Adams from using the boys’ restroom.

As Judge William Pryor explains in dissent, there is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.

Law & the Courts

This Day in Liberal Judicial Activism—August 6


1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense. 

But, as the Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”  

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law. 

Law & the Courts

Ron DeSantis Transforms Florida Supreme Court


When Ron DeSantis became Florida’s governor in January 2019, I highlighted the prospect that he could undo the dominance that liberal justices have had on the state supreme court for decades. As I pointed out, that dominance persisted despite the fact that Florida hadn’t elected a Democratic governor since 1994.

There is ample reason to believe that DeSantis has succeeded in transforming that court.

Today DeSantis appointed circuit judge Renatha Francis to the supreme court. An attorney very knowledgeable about Francis and her record assures me that she is a strong originalist and textualist and an excellent pick. You can watch her beautiful acceptance remarks here (beginning around the 12:00 mark). The fact that she is also an immigrant from Jamaica whose life is (in her words) the “epitome of the American dream” will feed the fury of the Left.

When Francis takes her seat, DeSantis will have appointed four of the seven members of the Florida supreme court. (He’s actually appointed six justices, but two of his early picks—Barbara Lagoa and Robert Luck—were in turn appointed by Donald Trump to the U.S. Court of Appeals for the Eleventh Circuit.) DeSantis has transformed what was long a 5-to-2 liberal majority into a 6-to-1 textualist majority.

Francis will be replacing another textualist justice, so her appointment won’t alter the court’s ideological alignment. But it might well help to entrench it for another two decades or more. The Florida supreme court has a mandatory retirement age of 75, but the oldest of DeSantis’s four appointees won’t hit that mark until 2044. So DeSantis’s appointees could constitute a majority of the court until then.

Law & the Courts

This Day in Liberal Judicial Activism—August 5


1997—By a vote of 4-3, the California supreme court rules (in American Academy of Pediatrics v. Lungren) that a state law that requires a pregnant minor to obtain parental consent or judicial authorization before she obtains an abortion violates the state constitution.  

In one dissent, longtime liberal justice Stanley Mosk charges that the justices in the majority, while purporting to apply the principle governing claims under the state constitutional right to privacy, in fact “reverse the principle, sub silentio.” In another, Justice Marvin Baxter argues that the majority “departs radically from any defensible view of the voters’ intent when they added a right of privacy to the [state constitution] in 1972 and undermines the fundamental and constitutionally protected right of parents to guide and control the upbringing of their children.” In the third, Justice Janice Rogers Brown concludes that the case “is an excellent example of the folly of courts in the role of philosopher kings.” 


Law & the Courts

The Best Attorney General Pick for Tennessee


As his eight-year term is set to expire shortly, Tennessee Attorney General Herbert Slatery III, the first Republican to occupy that position since Reconstruction, recently notified the state supreme court, which is responsible for appointing the state’s chief legal officer, that he would not seek an additional term. Next week, the court will be interviewing six applicants for the position. None in this or any other state is better qualified than Jonathan T. Skrmetti.

Jonathan’s experience speaks for itself. It spans from federal positions to private practice to the office he may be selected to run. He began his legal career as a law clerk to Judge Steven Colloton of the Eighth Circuit and then went on to the Justice Department, where he served both in the Civil Rights Division and as an assistant U.S. attorney in Memphis. His work included prosecutions of sex trafficking, white supremacist violence, and public corruption. He then went on to private practice—at Butler Snow LLP in Memphis—before joining the attorney general’s office in 2018. He served as the second highest ranking official in that office, chief deputy attorney general, before becoming general counsel to Governor Bill Lee in December. On top of everything else, he has taught cyberlaw at the University of Memphis Cecil C. Humphreys School of Law.

There are several talented applicants for attorney general in the mix, but none has anything approaching Jonathan’s range of relevant experience. And far beyond resume items, I can attest to his brilliance and his integrity as a law school classmate and friend. It was my privilege to know him during his days as editor-in-chief of the Harvard Journal of Law & Public Policy. A long-time member of the Federalist Society and former Memphis chapter president, he has brought to his work an unwavering commitment to originalism and textualism. Clearly, he is the best candidate for attorney general, and I hope the Tennessee Supreme Court agrees.

Law & the Courts

This Day in Liberal Judicial Activism—August 4


1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)  

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”  

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine. 

The Court promptly proceeds to disprove Douglas’s assessment that collective action by the justices is impossible during the recess. In an order written by Justice Marshall and agreed to by the seven other justices, it overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.” 

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court. 

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses. 

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition. 

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.” 

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself. 

Law & the Courts

Abortion Advocates Launch New Strategies to Keep Abortions Going

Supporters of abortion demonstrate outside of the U.S. Supreme Court in Washington, D.C., June 13, 2022. (Evelyn Hockstein/Reuters)

The Supreme Court may have acknowledged that the U.S. Constitution does not stand in the way of legislatures protecting babies before birth, but abortion advocates are launching new strategies to keep those babies at risk. The latest is a lawsuit, filed on August 2 by the U.S. Department of Justice, alleging that Idaho’s pro-life law conflicts with a federal law guaranteeing access to emergency medical care. Similar suits targeting other pro-life states are sure to follow.

In 2020, the Idaho legislature enacted a law banning all abortions except those “necessary to prevent the death of the pregnant woman” that would become effective 30 days after the Supreme Court “restores to the states their authority to prohibit abortion.” The Court did so on June 24, overruling Roe v. Wade and Planned Parenthood v. Casey. The law is scheduled to take effect on August 25.

The Emergency Medical Treatment and Labor Act (EMTALA), enacted in 1986, requires that anyone coming to the emergency department of a Medicare-receiving hospital with an “emergency medical condition” must receive necessary stabilizing treatment, regardless of their ability to pay. It provides that state laws are preempted “to the extent that a [state law] requirement directly conflicts with a requirement” of EMTALA. The Justice Department’s complaint claims that Idaho’s new law “would make it a criminal offense for doctors to comply with EMTALA’s requirement . . . where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death.”

The fact that the Idaho law allows abortion in order to prevent the mother’s death makes DOJ’s claim that, by banning abortion, it “will likely result in death for the pregnant patient” confusing, to say the least. The suit asks a federal judge to rule that the Idaho law “is preempted by federal law” and to permanently block it “to the extent that it conflicts with EMTALA.”

Ed Whelan has outlined several problems with DOJ’s legal theory, which will not stop DOJ from using it to target other states that prohibit abortion. As he demonstrates, this isn’t really a proper preemption case at all. “If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding,” Whelan writes, “then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law.”

Abortion advocates in Congress are trying to make taxpayers foot as much of the abortion bill as possible. On July 28, Senator Patty Murray (D., Wash.) announced that the appropriations bill for the fiscal year that begins on October 1, 2022, will include a long list of provisions to facilitate abortion. It would eliminate the Hyde amendment, a legislative provision that has barred the use of federal funds for most abortions since it was enacted in 1976. Most Americans support this restriction, and the Supreme Court repeatedly held, even while Roe v. Wade was on the books, that the Constitution does not require the government to facilitate abortion.

The Murray bill would not only lift the Hyde amendment’s protection for taxpayers, it would create new ways to force taxpayers to foot the abortion bill. These include a $350 million fund to pay for travel and other costs for women in pro-life states to obtain abortions elsewhere and to subsidize the construction and renovation of abortion clinics in pro-abortion states. The bill would increase funding for the Department of Health and Human Services’ Office of Civil Rights to fight pro-life states’ ability to protect unborn life. And it would create a new position at HHS, the “reproductive health ombudsman,” to “disseminate information to help individuals connect with . . . abortion funds; and provide information on safety related to self-managed abortions.”

Roe v. Wade itself demonstrated the commitment of those who claim that killing children in the womb is acceptable. Roe made virtually impossible even minor limits on abortion that had been in state statutes and the common law literally for centuries. The Supreme Court imposed upon the country an abortion regime more permissive than anything any legislature had adopted, that the American people had never supported, and that only a few countries in the world had embraced. Acknowledging that, as Americans can read for themselves, the Constitution does not protect any right to abortion will let the American people and their elected legislators choose how to handle abortion. But as these new federal efforts show, abortion advocates will be as aggressive as ever.

Law & the Courts

Biden Administration’s Misdirected EMTALA Lawsuit Against Idaho Abortion Law

Attorney General Merrick Garland speaks during a press conference at the Department of Justice in Washington, D.C., June 13, 2022. (Evelyn Hockstein/Reuters)

Yesterday the Biden administration sued the state of Idaho over its abortion law that will take effect on August 25. The Department of Justice’s complaint contends that Idaho’s law will conflict in some circumstances with the federal Emergency Medical Treatment and Labor Act (EMTALA). It asks that the federal district court rule that the Idaho law “is preempted and therefore invalid to the extent that it conflicts with EMTALA.”

In this post, I offer some observations on DOJ’s lawsuit. As I will explain, rather than purporting to displace state law, EMTALA imposes requirements on hospitals that choose to take part in Medicare. It’s a funding restriction. It would seem, therefore, that the Biden administration’s only proper legal recourse is to take enforcement action against any Medicare-participating hospital in Idaho that actually fails to comply with EMTALA or to undertake to terminate its Medicare agreements with Idaho hospitals.

1. Let’s start with EMTALA. As the Department of Health and Human Services explains, Congress enacted EMTALA to ensure public access to emergency services regardless of ability to pay. EMTALA “imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide … treatment for an emergency medical condition, including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with [emergency medical conditions].”

EMTALA defines the term “emergency medical condition” to mean:

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

2. Idaho’s abortion law provides life-of-the-mother and rape/incest exceptions. It’s the scope and nature of the life-of-the-mother exception that DOJ is challenging, so let’s spell it out.

Under Idaho’s law, it is an “affirmative defense to prosecution” that “a physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman” and that he “performed or attempted to perform the abortion in the manner that, in his good faith medical judgment and based on the facts known to the physician at the time, provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman.”

3. DOJ, as I understand it, objects to this exception on two grounds. First, the life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” As DOJ states in the opening paragraph of its complaint:

Crucially, “emergency medical conditions” under the statute include not just conditions that present risks to life but also those that place a patient’s “health” in “serious jeopardy” or risk “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.”

Second, DOJ complains that by “put[ting] the burden on the physician to prove an ‘affirmative defense’ at trial” (rather than requiring the prosecution to show that the abortion was not done to save the life of the mother), the Idaho law could lead a physician to “withhold care based on a well-founded fear of criminal prosecution” even when he in good faith determines that the life of the mother is at stake.

4. Let’s accept DOJ’s position that the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” (I’m skeptical of its objection to the fact that the exception is cast as an affirmative defense, but we can pass over that for now, as my same points apply if DOJ is correct.) What follows from that?

If the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition,” a Medicare-participating hospital in Idaho might theoretically encounter a situation in which it cannot comply with EMTALA’s funding restriction without violating the Idaho law. But that doesn’t mean that the Idaho law conflicts with EMTALA, as the straightforward (though, to be sure, costly) way for the hospital to prevent any conflict is to decline to participate in Medicare.

EMTALA itself provides (in subsection (f)) that it does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” No such direct conflict exists.

How strange it would be to think that a private party’s decision to accept federal funds subject to a funding restriction preempts a state law that makes it difficult or impossible for that party to comply with the funding restriction. If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding, then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law. Yet that’s the very position that DOJ is asserting.

In other words, the Biden administration’s proper recourse, if it believes that a Medicare-participating hospital in Idaho won’t comply with EMTALA’s funding restriction, is to terminate its Medicare agreement with that hospital or to take enforcement action against the hospital if and when it fails to comply.

5. The Social Security Act, which includes Medicare and EMTALA, also makes clear that the federal government has no say in determining what proper medical treatment is for an “emergency medical condition” and that the scope of proper medical treatment is instead a matter for state regulators:

Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided … or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.

So even if EMTALA purported to directly regulate hospitals (rather than to impose conditions on hospitals receiving Medicare funding), it wouldn’t preempt Idaho’s judgment that abortion is a medically unsound treatment except to save the life of the mother.

6. Even on DOJ’s theory, is there in fact any realistic prospect that the potential conflict between EMTALA’s funding restriction and Idaho’s law would actually arise? Is it impossible for an Idaho hospital to continue to take part in good faith in Medicare? Or is DOJ hypothesizing a farfetched scenario in a misdirected attack on Idaho’s law?

I will leave it to medical professionals to answer those questions. But I will note that far from being any sort of abortion mandate, EMTALA’s definition of “emergency medical condition” would generally require stabilizing treatment for both a pregnant woman and “her unborn child.”

DOJ contends that it can’t wait “to initiate federal enforcement actions directly against physicians or hospitals” because waiting “would likely have significant negative consequences on public health.” But it’s reasonable to suspect that DOJ’s real concern about waiting is that no occasion for a federal enforcement action would ever arise.

Law & the Courts

This Day in Liberal Judicial Activism—August 3


1993By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.  
And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee. 

Law & the Courts

Addled Ruling that Tax-Exempt Status Subjects Private School to Title IX


According to this list compiled a few years ago, there are 18 colleges—including Hillsdale and Grove City—that do not accept federal grants or participate in any federal student-loan programs. These colleges have decided to make these huge financial sacrifices in order to avoid being entangled in the strings that accompany federal aid. These strings include elaborate regulations that implement the nondiscrimination requirements of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972, as well as the intrusive government oversight in enforcing these regulations.

A district-court opinion two weeks ago will come as a huge surprise to these colleges—and, I would think, to everyone else. In that opinion, federal district judge Richard D. Bennett (a Bush 43 appointee) held that a school’s federal 501(c)(3) tax-exempt status qualifies as federal financial assistance under Title IX. In other words, under Judge Bennett’s ruling, it does not matter that Hillsdale and Grove City do not accept federal grants or participate in any federal student-loan programs. The fact that they have 501(c)(3) status suffices to subject them to Title IX and (as his reasoning makes clear) to Title VI.

Fortunately for Hillsdale and Grove City, Judge Bennett’s reasoning is feeble.

Bennett correctly observes that the Supreme Court held in Grove City College v. Bell (1984) that “Title IX coverage is not foreclosed because federal funds are granted to Grove City’s students [via federal student loans] rather than directly to one of the College’s educational programs.” But he badly misreads Justice Ginsburg’s unanimous opinion in the follow-on case of NCAA v. Smith (1999). That case held that “[d]ues payments from recipients of federal funds … do not suffice to render the dues recipient subject to Title IX.” Ginsburg explains that the NCAA’s dues-paying members did not pay their dues “with federal funds earmarked for that purpose”:

At most, the Association’s receipt of dues demonstrates that it indirectly benefits from the federal assistance afforded its members. This showing, without more, is insufficient to trigger Title IX coverage.

What Bennett completely misses is that the NCAA ruling would call for him to determine whether a school’s tax-exempt status is more like the dues payments from recipients of federal funds at issue in that case or more like the receipt of “earmarked” federal funds from student borrowers in the Grove City case. The answer to that question would seem clear: Those who make charitable contributions to tax-exempt schools are not providing “federal funds earmarked for that purpose.” They are not providing federal funds at all. There is no reason, indeed, to presume that any contributors are even “recipients of federal funds.” Thus, the “indirect benefits” that a school receives from its tax-exempt status are even more remote than the benefits that the Court in the NCAA case found “insufficient to trigger Title IX coverage.”

Bennett’s reliance on a couple of long-ago Title VI rulings by district courts is likewise unsound for the simple reason that those rulings preceded NCAA v. Smith.

What’s more, a threshold problem with Bennett’s analysis is that the Department of Education’s regulations implementing Title IX (see 102.6(g)) define “Federal financial assistance” as “any of the following [types of assistance], when authorized or extended under a law administered by the Department.” (Emphasis added.) The Department of Education does not administer tax-exempt status, so the definition clearly does not apply. Bennett dismisses the first problem on the ground that the school did not raise it. But surely it falls within the school’s broader argument that Title IX does not apply.

Nor (as one district-court ruling Bennett cites correctly observes) is tax-exempt status included in the definition’s list of types of assistance. Bennett tries to escape this problem by invoking his misreading of NCAA v. Smith.

Law & the Courts

Re: Wild Ruling Against Kentucky Abortion Laws


A quick follow-up to my post yesterday: I’m pleased to pass along that yesterday evening the state court of appeals granted Kentucky attorney general Daniel Cameron’s motion for an emergency stay of the lower court’s ill-founded temporary injunction against Kentucky’s abortion laws. That means that Kentucky’s Human Life Protection Act and its Heartbeat Law are both immediately enforceable.

Law & the Courts

Wild Ruling Against Kentucky Abortion Laws

A pregnant woman receives an ultrasound. (Carlos Barria/Reuters)

Inconveniently for me, Kentucky trial judge Mitch Perry issued a wild ruling against two Kentucky abortion laws on the first day of my just-completed vacation to Maine, so I’ve been delayed in highlighting the ruling’s many defects. Fortunately, Kentucky attorney general Daniel Cameron has in the meantime filed an excellent motion for interlocutory relief in the state court of appeals (as well as a motion to transfer the matter to the state supreme court). I draw on that motion’s analysis at various points throughout this post.

In his order, Judge Perry enjoined state officials from enforcing two laws, the Human Life Protection Act (which Perry denominates the “Trigger Ban”) and the Heartbeat Law (which Perry labels the “Six Week Ban”).

The Human Life Protection Act generally bars a person from committing an abortion from conception. (It provides an exception for “a licensed physician to perform a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”) Enacted in 2019, it states that its provisions “shall become effective immediately upon … [a]ny decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), thereby restoring to the Commonwealth of Kentucky the authority to prohibit abortion.”

The Heartbeat Law, also enacted in 2019, bars a person (except in a medical emergency) from committing an abortion after a fetal heartbeat has been detected.

I will focus my comments here on Judge Perry’s section on “Constitutional Analysis” (pp. 10-19). I will address his larger errors in the order in which they occur.

Perry perceives two particular problems with the Human Life Protection Act. First, he argues in a single paragraph that the Kentucky legislature, by tying the law’s effective date to the overruling of Roe, “impermissibly delegated its legislative authority” to the U.S. Supreme Court. But as AG Cameron explains more fully (pp. 41-45), the state legislature did not delegate any legislative authority to the Court but instead “simply provided a triggering event for when the Human Life Protection Act took effect.”

Second, Perry claims that the Human Life Protection Act is “unconstitutionally vague” as to whether it became effective when the Court announced the Dobbs decision on June 24 or when the Court later issued its formal mandate (or judgment) to the lower court in Dobbs. But the Act itself states clearly that its provisions “become effective immediately upon [a]ny decision” reversing Roe. Perry himself states (on p. 2) that that occurred on June 24. Perry cites two state attorneys general who have construed their states’ trigger laws to be tied to issuance of the mandate. But those laws, unlike Kentucky’s, are tied to “issuance” of the “judgment.” In any event, it is difficult to see how any possible confusion between these two effective dates could justify enjoining enforcement of the Act after both of those dates have passed.

Perry finds multiple flaws with the Heartbeat Law (all of which, I gather, also supposedly infect the Human Life Protection Act, although Perry doesn’t make that clear). First, he contends that it violates a state constitutional right to privacy. But as AG Cameron spells out at length (pp. 14-32), text, precedent, and tradition defeat the notion that any state constitutional privacy right extends to abortion.

Raising arguments that even the ACLU (plaintiffs’ counsel) thought too kooky to bother with, Perry concludes that the Heartbeat Law violates state equal-protection and religious-freedom principles. AG Cameron points out Kentucky case law incorporates federal standards on equal protection, so Dobbs’s rejection of the equal-protection argument for abortion defeats the state claim as well.

Perry’s religious-freedom discussion (pp. 15-16, 19) might be the nuttiest part of his ruling. Perry contends that the two laws “adopt the view embraced by some, but not all, religious traditions that life begins at the moment of conception.” In his view, they thus “impermissibly establish[] a distinctly Christian doctrine of the beginning of life” and amount to “theocratic based policymaking.” But as AG Cameron observes:

The view that life begins at fertilization [i.e., conception] is “the leading biological view on when a human’s life begins.” … That some religious views align with the predominant view of biologists does not turn the policy judgment of the General Assembly into a forbidden establishment of religion.” [Emphasis added; quoting biologists’ amicus brief in Dobbs.]

It’s yet a further sign of Perry’s sloppiness that he thinks that the Heartbeat Law makes conception a decisive point.

Law & the Courts

Tomorrow’s Kansas Referendum on Abortion


The New York Times would have you believe that Kansans will be voting tomorrow “whether to remove abortion rights protections from their State Constitution.” But the Kansas constitution does not set forth any actual “abortion rights protections.” Rather, in a wild ruling in 2019, the Kansas supreme court held that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” somehow means that any restriction on abortion must be subjected to strict scrutiny. In his impressive dissent, Justice Caleb Stegall castigated the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”

Tomorrow’s referendum gives the people of Kansas the opportunity to override the state supreme court’s ruling. The referendum would not adopt any policies on abortion but would instead reclaim for the people and their elected representatives the power to set abortion policy in the state. That is a step that all Kansans faithful to the state constitution ought to support, but it appears that many Kansans who oppose the abortion laws that they expect the legislature to adopt would prefer to surrender to the supreme court’s usurpation.

Law & the Courts

This Day in Liberal Judicial Activism—August 1


1996—One generation of liberal judicial activists is more than enough. But President Clinton obviously doesn’t agree, as he appoints Dean D. Pregerson, son of arch-activist Ninth Circuit judge Harry Pregerson, to a federal district judgeship in California.  

A year earlier, Clinton had already nominated Berkeley law professor William A. Fletcher to join his mother Betty Binns Fletcher on the Ninth Circuit. But Fletcher fils won’t get confirmed and appointed until October 1998.  

Law & the Courts

This Day in Liberal Judicial Activism—July 31


1996—The annals of This Day in Liberal Judicial Activism suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service (on top of his 15 years as a district judge). Imagine what he could have accomplished with more time!  

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates. 

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.  

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.” 

2012—By a vote of 5 to 3, the Missouri supreme court rules (in Watts v. Lester E. Cox Medical Centers) that a statutory cap on non-economic damages in medical malpractice cases violates the right to jury trial set forth in the state constitution. The court overrules its own better-reasoned precedent to the contrary. 

Law & the Courts

This Day in Liberal Judicial Activism—July 29


1994By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun. 
Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.  
2003Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

Law & the Courts

This Day in Liberal Judicial Activism—July 28


2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.  

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.” 

Law & the Courts

This Day in Liberal Judicial Activism—July 27


2018In a challenge to the Trump Administration’s policies on transgender individuals serving in the military, federal district judge Marsha Pechman orders President Trump to provide plaintiffs information and documents bearing on his deliberations and communications in connection with adoption of the policies. Nearly a year later, a unanimous Ninth Circuit panel (in Karnoski v. Trump) will vacate Pechman’s discovery order and fault her for failing to give proper consideration to the president’s executive privileges. 

Law & the Courts

This Day in Liberal Judicial Activism—July 26


1983—Barely four months after reiterating that abrogation of the state’s common-law sovereign immunity is a matter for the legislature, not for the courts, the Oklahoma supreme court (in Vanderpool v. State) abolishes Oklahoma’s sovereign immunity. The majority explains that it is imposing “what we perceive to be the more just and equitable view.”  

2018—Federal district judge Timothy J. Corrigan rules in Adams v. School Board of St. Johns County that a Florida school board’s policy of assigning bathrooms by sex violates the statutory (Title IX) and constitutional (Equal Protection Clause) rights of a transgender student who identifies as male. 

2021—In a stunningly stupid analysis of economic competition (in 303 Creative LLC v. Elenis), Tenth Circuit judge Mary Beck Briscoe opines that a company, 303 Creative, that proposes to offer “custom” wedding websites somehow must have something “similar to a monopoly” in its product market: No matter how intense the competition is in the market for “custom-made wedding websites,” 303 Creative is by definition (as Briscoe misunderstands things) the only participant in the market defined as “custom-made wedding websites of the same quality and nature as those made by [303 Creative].”  

Briscoe’s bonkers analysis comes not in an antitrust case but in a case addressing the question whether Colorado may compel a company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate male-female marriages. Briscoe acknowledges that the creation of wedding websites is “pure speech” and that Colorado is seeking to impose a “content-based restriction” that would compel 303 Creative to utter speech celebrating same-sex marriage. But because “LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that [303 Creative] offer[s],” Briscoe concludes that the state of Colorado has a compelling interest in coercing 303 Creative to engage in such speech. 

As Chief Judge Timothy Tymkovich observes in dissent, Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’” (Emphasis in original.) 

In February 2022, the Supreme Court will grant 303 Creative’s petition for certiorari. The case will be heard in the Court’s October 2022 Term.  

Law & the Courts

Biden Nominates an Activist to the Ninth Circuit

Roopali Desai testifies before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., July 13, 2022. (Sarah Silbiger/Reuters)

In June, President Joe Biden nominated Phoenix-based attorney Roopali Desai to the U.S. Court of Appeals for the Ninth Circuit.

The announcement was met with sparse local fanfare and a supportive statement from Arizona’s two Democratic senators, for one of whom Desai has been both a campaign donor and an attorney dating back at least a decade.

It should have received more attention, and a lot more scrutiny.

Because last Wednesday, when Desai appeared before the Senate Judiciary Committee and painted herself as an attorney who has represented “both sides” and who would, as a judge, “apply the rule of law objectively,” Arizonans raised our eyebrows. This self-portrait is not one that we are familiar with.

In reality, Desai has made a name for herself in Democratic circles as a partisan bulldog-for-hire akin to Marc Elias, and her clients now “have . . . the ear of the White House,” according to one of her colleagues.

The boutique law firm where she works as partner has counted Senator Bernie Sanders’s 2016 presidential campaign among its political clients, with the nominee herself representing a host of left-wing entities ranging from the Democratic Party to the Green Party, with many more to boot.

It would be unfair to tie a public defender to an unseemly criminal he’s asked to defend or an assistant U.S. attorney to the unpopular case she’s asked to prosecute. That is not the case with this nominee. To the contrary, there is no daylight between Desai, her clients, and the liberal public policies they push.

Her work in the field of education tells part of that story.

In 2017, despite a fierce opposition campaign by the Arizona Education Association, Governor Doug Ducey expanded eligibility for the state’s Empowerment Scholarship Account program. Barely four weeks later, Desai signed on to represent a newly formed group called Save Our Schools Arizona with one express goal: to stop the school-choice expansion. Soon after, she joined its board of directors, where she remains today.

The following election cycle, Desai was named attorney for a multimillion-dollar ballot initiative campaign known as Invest in Ed. The initiative, backed by the teachers’ union, aimed to hike Arizona’s income tax so dramatically that the state would have had the tenth-highest tax rate in the country.

Her conduct would have been questionable for an activist, let alone a measured litigator.

During one deposition, Desai attempted to force a local businessman involved in the anti-tax effort to publicly disclose his and his wife’s personal income level. Later, when a ruling on another matter didn’t go her way, she called the judge “gratuitous and insulting” and said that his order “could be part of a press release written by the Chamber itself.” She then filed a baseless complaint against the governor for urging a “no” vote.

Less than one year later, the nominee filed yet another lawsuit in an attempt to nullify bills approved by the state legislature banning school mask mandates and the instruction of critical race theory, among other priorities. Referring to the mask provision, Desai told the court that, if things did not go her way, children “will be hospitalized and they will die. . . . That is not hyperbole.”

As the case ended, the teachers’ union sent out a press release expressing its “special appreciation” for her by name.

This pattern can be found in other areas of Desai’s activism.

She represented a ballot initiative to legalize recreational marijuana and then joined the National Cannabis Roundtable’s advisory board. She filed a lawsuit to challenge Arizona’s ban on ballot harvesting; then identified elections officials for the transition team of the incoming Democratic secretary of state, Katie Hobbs, who voted against the ban in the state legislature; and then submitted an amicus brief when the ban reached the U.S. Supreme Court.

Such has been Desai’s legal career: leveraging the court system to alter public policy — and then leaning in further.

There is no doubt that she has been successful at the job she chose in courtroom activism. But the job she chose — and the inability thereafter to be a neutral and impartial arbiter of justice that came with it — is precisely what disqualifies her from a lifetime judgeship. Put simply, it is difficult to imagine a single scenario in which it would be appropriate for Desai to rule on issues facing our state.

The Ninth Circuit has enough problems. It does not need a partisan activist filling its ranks.

To protect the integrity of our appeals court, members of the Judiciary Committee would be wise to reject Desai’s nomination out of hand and work with President Biden in the next session of Congress on a nominee better suited for this important position.

Law & the Courts

This Day in Liberal Judicial Activism—July 25


1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read 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), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution. 

2018—An Eleventh Circuit panel rules (in  Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act, which displaced a higher minimum wage adopted by the city of Birmingham, “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.”  

The panel’s reasoning has radical implications for further judicial intrusion on the legislative processes. The panel concludes that the allegation that the state law denied 37% of Birmingham’s black wage earners a higher wage, compared to only 27% of white wage earners, would suffice to show “discriminatory impact.” The panel doesn’t say what disparity would be too small. (It would be surprising if lots of routine legislative actions didn’t have a much larger disparate impact.) Nor does it confront the reality that a higher minimum wage could have a disproportionate impact on job loss and on loss of entry-level job opportunities for black workers.  

The panel further cites the 10% disparity as evidence of discriminatory purpose and adds in what it sees as the “rushed, reactionary, and racially polarized nature of the legislative process.” Are we really going to have judges deciding how long a legislative process ought to take? And while the panel finds of special interest the race of the legislators and of the members of the Birmingham city council, it never stops to consider whether they divide along the same lines on economic policy. If these considerations “plausibly imply discriminatory motivations were at play,” then lots of ordinary legislative decisions will be subject to judicial second-guessing. 

In January 2019, the full Eleventh Circuit will vacate the panel’s opinion and grant rehearing en banc, and in December 2019 it will rule that the plaintiffs lacked standing to sue. 

2018—In Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District, a Ninth Circuit panel rules that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause. The panel evades the Supreme Court’s rulings approving legislative prayer by contending, implausibly, that the school-board meetings are not legislative in nature. 

Law & the Courts

This Day in Liberal Judicial Activism—July 24


2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)  

At her hearing, Pillard delivers false and deceptive testimony about her own writings—and, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind: “I am a mother” is part of how she deflects criticism of her equal-protection argument against abstinence-only sex education. 

Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda. 

2018—“Judge [Stephen] Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death,” asserts Ninth Circuit chief judge Sidney Thomas in an opinion in a case (Altera Corp. v. Commissioner of Internal Revenue) in which the decisive vote on the divided panel is said to have been cast by Reinhardt. (Emphasis added to quote.) 

But Reinhardt died nearly four months earlier, probably before the dissenting judge ever circulated her draft dissent. Further, a judge is free to change his position at any time before an opinion issues, so it is difficult to discern what Thomas’s claim that Reinhardt “formally concurred” might actually mean. 

In a change of course two weeks later, the Ninth Circuit will withdraw the ruling so that a reconstituted panel can decide how to proceed.  

In February 2019, in vacating the judgment in another case in which Reinhardt was said to have posthumously cast the deciding vote (and indeed to have been the author of the majority opinion), the unanimous Supreme Court in Yovino v. Rizo will repudiate chief judge Thomas’s misunderstanding: 

“We are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”  

Law & the Courts

This Day in Liberal Judicial Activism—July 23


1971—In Calvert Cliffs’ Coordinating Committee v. Atomic Energy Comm’n, D.C. Circuit judge J. Skelly Wright enthusiastically welcomes “what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment”: 

Several recently enacted statutes attest to the commitment of the government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental Policy Act of 1969. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. [Emphasis added.] 

In a 1983 law-review article, then-D.C. Circuit judge Antonin Scalia will identify Calvert Cliffs as having “beg[u]n the judiciary’s long love affair with environmental litigation” and will contrast Wright’s nearly boundless conception of the judicial role with the much more modest understanding set forth in Marbury v. Madison. Further, as Scalia observes, Wright doesn’t even bother to explain what the Calvert Cliffs’ Coordinating Committee is and how it has standing to challenge the agency’s action: 

From reading the opinion, one is unable to discern whether the Calvert Cliffs’ Coordinating Committee, which brought construction of the Calvert Cliffs nuclear generating plant to a halt, was composed of environmentalists, or owners of land adjacent to the proposed plant, or competing coal-generating power companies, or was even, perish the thought, a front for the Army Corps of Engineers, which is reputed to prefer dams to atoms. 

Law & the Courts

Nancy Randolph’s 1792 Scandal and Modern Abortion Politics

U.S. Supreme Court building in Washington, D.C. (Will Dunham/Reuters)

One of the unfortunate side effects of the abortion regime recently overturned in the Dobbs case is the corruption of scholarly norms among its defenders. From Cyril Means to the “historians’ briefs” in various cases, there seem to be no historical facts that cannot be stretched, distorted, misconstrued, or simply made up by the partisans of Roe v. Wade.

Last week the Washington Post ran an opinion piece by physician Sarah Hougen Poggi and historian Cynthia A. Kierner claiming that Justice Samuel Alito had erred in his opinion for the Court in Dobbs when he concluded that a right to abort unborn children is not “deeply rooted in our history and traditions.” Poggi and Kierner’s attempt to refute Alito rests on a single data point — a once notorious Virginia scandal involving a distant young cousin of both Thomas Jefferson and John Marshall named Ann “Nancy” Randolph. See Thomas Jipping’s post here from yesterday, with which I agree entirely.

Some of the tale Poggi and Kierner tell is easily confirmed. Nancy Randolph, 18 and unmarried, gave birth in early October 1792 to a child who did not survive the night, while she was a guest (along with her sister and brother-in-law, with whom she lived) at the home of friends. What is not certainly known includes the following: whether Nancy had attempted to induce an abortion; whether the child was born alive or stillborn; whether, if alive, it died by violence or of natural causes; how advanced Nancy’s pregnancy was; and who the father was. In 2004, a historian who wrote an entire book on this event and the ensuing scandal wrote that no one “has solved the mystery of who fathered Nancy’s child, nor has any[one] proven conclusively what happened that fateful night,” and added that her own book would “leave these issues unresolved.” That historian was Cynthia Kierner, co-author of the Post essay. But she is not as careful today as she was 18 years ago.

With no new facts in hand, Kierner and her Post co-author Poggi, engaging in a train of sheer speculation on the thinnest of evidence, conclude that Richard Randolph, Nancy’s brother-in-law, was definitely the father, and that what occurred was a “deliberate second-trimester abortion.” Then they observe that Thomas Jefferson took an interest in the case (via his daughter Martha, Nancy’s friend and a witness in a legal examination of Richard), and that Patrick Henry and John Marshall were Richard’s lawyers when he defeated accusations of adultery and infanticide. From all this they conclude that these eminent members of the founding generation “tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution.” And from this — that “the concept of abortion as a private matter was ‘deeply rooted’ in the minds of our nation’s Founders.”

It’s hard to imagine a more absurdly creative claim being manufactured from this case. First, Poggi and Kierner cannot establish that Nancy Randolph’s pregnancy ended in the second trimester. They note that she “would later admit that she was pregnant,” but they do not tell the reader that she said 20 years later that the father of her child had been Richard Randolph’s brother Theodorick (to whom Nancy had been engaged), who had died a full seven and a half months before the child’s birth. If she told the truth, her baby was closer to full-term. Nor can they establish that she intended to induce an abortion, though there is evidence that she took a drug used for “colic” that could also be an abortifacient.

There is a simple reason no full investigation of an alleged abortion took place in Nancy Randolph’s case. Whatever happened that night in Cumberland County, Va., there simply wasn’t enough evidence to sustain such a case. By the time Richard Randolph appeared in 1793 before the justices of the county — having engineered his own possible prosecution in order to squelch rumors that he had impregnated his sister-in-law and then killed their child himself — there were no remains of a child to be examined, and no one against whom a charge of abortion could be laid. If witness testimony could establish both a pregnancy and a live birth, then Richard risked both adultery and infanticide charges. In the end, Henry and Marshall cast enough doubt even on the existence of the pregnancy to have all charges dismissed, pretty adroit lawyering in a case in which there was a pregnancy — and a laborious delivery of some kind.

We have no reason to believe that Jefferson, Henry, or Marshall was certain that an abortion had even occurred. Henry and Marshall were professionally committed to exonerating the alleged father of the baby, and Jefferson’s own daughter Martha had provided the drug Nancy took, of which Martha testified (according to John Marshall’s case notes) she had “known more to be given to pregnant women [than the dose she had supplied], without producing any mischief.” From what we know, in other words, it follows that the Nancy Randolph case means nothing at all respecting the thoughts of Henry, Marshall, and Jefferson on the subject of abortion — let alone the Founding generation more generally.

Even in their version of the tale, Poggi and Kierner rely on the reader’s forgetting by the end of their essay what they told us at the beginning — that abortion was undoubtedly a common-law crime after “quickening” in the 18th century. Poggi and Kierner assert that Nancy Randolph had a second-trimester abortion — virtually certain, that is, to have occurred after quickening. And if Nancy’s own tale 20 years later is the truth, she was at or near full-term, when abortion was universally regarded as a very grave crime. But there was no prosecution. The explanation can only be the dearth of evidence against anyone who could be charged with such an offense — not the “tolerant” view of Virginia’s leading citizens toward young women who aborted their children.

Even if everything Poggi and Kierner claim about the facts were fully credited, the Randolph affair would be exactly one data point, floating somewhere far from the actual trend lines of legal principle in the Founding generation. Poor Nancy Randolph, whose interesting story is so well told in Cynthia Kierner’s 2004 book Scandal at Bizarre, went on to marry Gouverneur Morris and bear his only son two decades later. Her memory is ill served by enlisting her as the reluctant protagonist of an abortion argument in 2022.

Law & the Courts

This Day in Liberal Judicial Activism—July 22


2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.   

2016—By a vote of 4 to 1, with the members in the majority adopting different rationales, the Alaska supreme court rules (in Planned Parenthood of the Great Northwest v. Alaska) that a 2010 voter initiative that provides for parental notification for a minor’s abortion violates the state constitution.  

Law & the Courts

A Single ‘Poorly Documented’ Anecdote Cannot Establish America’s History and Tradition on Abortion

The Supreme Court building in Washington, D.C., June 26, 2022. (Elizabeth Frantz/Reuters)

Roe v. Wade, decided in 1973, quickly became one of the most disgraceful decisions in Supreme Court history, not least because it was based on a fictional, even fraudulent, version of abortion history in America. A legion of scholars from across the ideological spectrum have published a warehouse’s worth of books, journal articles, and commentary confirming that, since long before American independence, the law increasingly restricted abortion to protect human beings before birth.

Now, two authors tell us, in but a single Washington Post op-ed, that they have the historical smoking gun proving that Roe v. Wade was right after all. But when the smoke clears, there’s really nothing there.

Here’s why abortion history matters. The 14th Amendment says that “[n]o State shall . . . deprive any person of life, liberty, or property without due process of law.” The Supreme Court insists that this provision actually creates unwritten substantive rights that only judges can see. The Court has said that these judge-made rights must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty,” such that “neither liberty nor justice would exist if they were sacrificed.”

In Roe, Justice Harry Blackmun used a two-step maneuver to falsely suggest that abortion met this standard. First, he spun a fictional tale of abortion history by simply repeating assertions by Cyril Means, general counsel of the National Association for the Repeal of Abortion Laws. Means, however, had intentionally constructed a “radically revisionist history” of abortion in America to claim that the law had long treated abortion lightly, if at all. Second, Blackmun turned the misleading observation that “abortion was viewed with less disfavor” during the 19th century than in 1973 into a literal constitutional “right” to abortion.

For the past 50 years, legal scholars, historians, social scientists, and others have dismantled Blackmun’s house of constitutional cards, detailing his omissions, misinterpretations, misrepresentations, and illogical assertions. One example is Dispelling the Myths of Abortion History, a 1,300-page treatise by Professor Joseph Dellapenna, who acknowledges his generally pro-choice perspective on abortion. Justice Samuel Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cites this work as it overruled Roe, concluding that: “The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation’s history and traditions.”

But wait. Sarah Houghen Poggi and Cynthia A. Kierner claim they have found what a horde of researchers, publishing a library’s worth of scholarship, all somehow missed. They tell of Nancy Randolph who, in 1792, received from her cousin Martha an herb known to cause abortion. According to Poggi and Kierner, writing 230 years after the event, several pieces of “circumstantial obstetric evidence” suggest that “what happened was . . . a deliberate second-trimester abortion.”

In the end, however, neither Nancy nor her brother-in-law Richard, accused of impregnating her, were prosecuted for the same reason. Proving pregnancy in the 18th century required evidence of “quickening,” or movement of the child in the womb, and such evidence did not exist in this case. Richard escaped prosecution by arguing that Nancy had not been pregnant, and Poggi and Kierner concede that prosecuting Nancy herself would have required the same evidence of quickening.

How can a single anecdote that even Poggi and Kierner describe as “poorly documented in the county court records” possibly challenge decades of investigation and scholarship by so many? This story is important, they say, because its characters include no fewer than three of America’s founders: Nancy’s uncle, Thomas Jefferson, and two of Richard’s lawyers, Patrick Henry and future Supreme Court Chief Justice John Marshall. Poggi and Kiernan insist that these Founders “tacitly agreed that abortion in this case was a private matter, not a criminal act worthy of further investigation and prosecution.”

The key word there is “tacitly,” or, put another way, “silently.” Poggi and Kiernan offer no evidence of any kind about what these men thought or believed about anything related to abortion – no words, no writings, nothing. Instead, they fill in blanks of their own making with speculation of their own creation. In fact, the subtitle of their op-ed is this: “Thomas Jefferson, John Marshall and Patrick Henry didn’t advocate for prosecution of a woman who probably had an abortion.”

In Dobbs, Alito examined various sources that would inform whether a right to abortion had been any part of, let alone deeply rooted in, America’s history and tradition. “No state constitutional provision had recognized such a right . . . no federal or state court had recognized such a right. Nor had any scholarly treatise of which we are aware.” Poggi and Kierner don’t cite a single one. Alito: “At common law, abortion was . . . regarded as unlawful and could have carried very serious consequences at all stages.” Poggi and Kierner: nothing. Alito: “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” Poggi and Kierner: crickets.

So let’s take stock. These authors take a single, poorly documented anecdote and attribute views to three of America’s Founders that none of them expressed and for which no actual evidence exists. They then extrapolate the hypothetical views of these three men not only to “the minds of our nation’s Founders” generally, but as literally defining the entirety of our nation’s history and tradition on abortion. If it’s possible to construct a tale of abortion history more fanciful than Roe, Poggi and Kierner just may have done it.

Law & the Courts

This Day in Liberal Judicial Activism—July 21


2020—In a brazen exercise in bullying federal judges, all ten Democrats on the Senate Judiciary Committee sign their names to letters to Eleventh Circuit judges Robert Luck and Barbara Lagoa demanding that they explain to the senators how they can take part in the Eleventh Circuit’s pending en banc proceedings in  Jones v. DeSantis. Nine of the ten Democrats are also lawyers, so, as Eleventh Circuit chief judge William Pryor will inform the parties in the case, their letters to Luck and Lagoa, at the very time that plaintiffs’ motion to disqualify them is pending before them, are ex parte communications—communications, that is, outside of the presence of opposing counsel and generally barred by rules of professional conduct. 

2021—Gender confusion, indeed. In a topsy-turvy ruling (in B.P.J. v. West Virginia State Board of Education), federal district judge Joseph R. Goodwin issues a preliminary injunction that requires school officials to allow “B.P.J.,” an 11-year-old boy who identifies as female, to try out for the girls’ cross-country and track teams at his school. Specifically, Goodwin’s order bars school officials from applying to B.P.J. West Virginia’s recently enacted “Save Women’s Sports Bill,” which provides that girls’ sports teams “shall not be open to students of the male sex.” 

In reality-denying newspeak, Goodwin asserts that “B.P.J. is an eleven-year-old girl” who was “assigned the sex of male at birth.” On B.P.J.’s claim that the West Virginia law violates the Equal Protection Clause, Goodwin evades the simple fact that the law categorizes on the basis of biological sex by maintaining that B.P.J. is “not most similarly situated with cisgender boys” but is instead “similarly situated to other [sic] girls.” Based on that sleight of hand, Goodwin asserts that “there is an inescapable conclusion that [the law] discriminates on the basis of transgender status.” 

Law & the Courts

This Day in Liberal Judicial Activism—July 20


1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”  

Five days later, President Bush will nominate David H. Souter to fill Brennan’s seat. 

2020—Displaying their obstinate refusal to clean up their messes, the liberal judges on the Ninth Circuit unite to deny en banc review of two panel rulings that threaten to undermine the state-secrets privilege. The ten judges who dissent from the denial of rehearing en banc in Fazaga v. FBI decry the panel’s “untenably broad interpretation” of a statute to displace the state-secrets privilege with respect to electronic surveillance. The twelve judges who dissent from the denial of rehearing en banc in Husayn v. United States object to the “serious legal errors in the [panel] majority opinion, and the national security risks those errors portend.”  

In March 2022, the Supreme Court will reverse the Ninth Circuit in both cases, in a unanimous ruling in FBI v. Fazaga and in a lead opinion by Justice Breyer in United States v. Zubaydah. 

Law & the Courts

This Day in Liberal Judicial Activism—July 19


2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.  

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.” 

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction. 

Law & the Courts

Law Professor David Bernstein on Racial Classifications

A student and parent pass Widener Library’s banners before Harvard University’s Class Day Exercises in Cambridge, Mass., May 27, 2015. (Dominick Reuter/Reuters )

Tomorrow is the official publication date for Scalia Law School professor David E. Bernstein’s excellent—and timely—new book, Classified: The Untold Story of Racial Classification in America. In providing a history of American racial and ethnic classifications, Bernstein shows that those classifications are “arbitrary and inconsistent” and “do not reflect biology, genetics, or any other objective source.” Instead, our government “developed its classification scheme via a combination of amateur anthropology and sociology, interest group lobbying, incompetence, inertia, lack of public oversight, and happenstance.” That scheme has fostered a broad system of racial and ethnic preferences even as it has spawned “an unsound racialism in science and medicine.”

Relatedly, Bernstein has submitted an amicus brief in the big cases involving racial preferences in admissions at Harvard and the University of North Carolina. Here are some excerpts:

This brief identifies two problems with the way schools such as Harvard and UNC sort applicants based on race and ethnicity.

The first problem is that Harvard and UNC use racial and ethnic categories that are arbitrary and irrational in the context of pursuing diversity. The way these schools classify students cannot pass rational-basis scrutiny, much less the requisite strict scrutiny.

For example, Harvard and UNC cannot justify grouping people whose national origins represent roughly 60% of the world’s population together as “Asian,” despite vast differences within this category in appearance, language, and culture. Nor can they explain why white Europeans from Spain, people of indigenous Mexican descent, people of Afro-Cuban descent, and South and Central Americans who may be any combination of European, African, and indigenous by descent are grouped together as “Hispanic.”

The second problem is that Harvard and UNC rely on applicants’ self-identified race. Self-identification is highly susceptible to inaccuracy and disparate treatment of similarly situated applicants. This is due to fraudulent and exaggerated claims of minority ancestry, confusion about how students should self-identify, and inconsistent classification of multiracial applicants….

There was never even a hint in the development of the categories that they were established for achieving educationally beneficial diversity in higher education….

Neither Harvard nor UNC has explained why a white Catholic of Spanish descent, classified as Hispanic, gets an admissions preference for contributing to educational diversity, but a dark-skinned Muslim of Arab descent, an Egyptian Copt, a Hungarian Roma, a Bosnian refugee, a Scandinavian Laplander, a Siberian Tatar, or a Bobover Hasid—all classified as “white”—do not. Similarly, it is hard to see how diversity is better accomplished by admitting an additional “Hispanic” student of Mexican ancestry over an equally or better qualified student whose parents immigrated from Turkmenistan, who would be the only Turkman in the entire student body, because the Turkman is arbitrarily classified as “white.”

A system of self-identification also has no way of ensuring consistent treatment of multiracial applicants. As Judge Danny Boggs once observed: “A child might be born who would, in today’s conventional terms, be held to be one-half Chinese, one-fourth Eastern-European Jewish, one-eighth Hispanic (Cuban), and one-eighth general North European, mostly Scots-Irish.” Suppose that child applied to Harvard, identified as Hispanic, and received a race-based advantage. Now suppose that child’s younger sibling applied to Harvard, identified as Asian, and received a race-based penalty. Even though the two siblings have the same ancestry and grew up in the same family, their different (legitimate) self-identifications would result in vastly different chances of admission.

Law & the Courts

This Day in Liberal Judicial Activism—July 18


2014—In State v. Gleason, the Kansas supreme court expressly acknowledges that the U.S. Supreme Court “has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances.” But the court nonetheless proceeds to rule that sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.”  

A year and a half later (in Kansas v. Carr), the Supreme Court will reverse the Kansas supreme court by a vote of 8 to 1. 

2019—For liberal justices, stare decisis (respect for precedent) is sacrosanct and absolute for liberal precedents but has little or no force for precedents they oppose. At a law-school event, Justice Kagan emphatically declares that she will “never accept” the Supreme Court’s decision weeks earlier in Rucho v. Common Cause, in which the Court ruled by a 5-4 vote that claims of excessive partisan gerrymandering present nonjusticiable “political questions.”  

Kagan is surely correct on the higher principle that some rulings are so “tragically wrong” that no justice should ever be obligated to acquiesce in them. But that principle applies all the more plainly to Roe v. Wade, which Kagan and her liberal colleagues seek to protect by their selective and opportunistic paeans to stare decisis 

Law & the Courts

This Day in Liberal Judicial Activism—July 17


2007Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”