Law & the Courts

Yale Critical Race Theory School?


In an email today to members of the Yale law school community, Yale law school dean Heather Gerken has committed to take “swift and significant action” to “confront, challenge, and combat racism and to serve the cause of racial justice.” Specifically, she has set forth a very long “list of ongoing action items that we will move forward during the upcoming year.”

One current student tells me that the “wide range of courses and clinics that explore questions of racial justice and equality” (Gerken’s phrase) stands in sharp contrast to the single course in Federal Courts on offer last year and this coming year. More broadly, Yale has long been notorious for teaching very few courses in traditional legal subjects or, as a young Samuel Alito experienced, for teaching courses in traditional legal subjects in a “most bizarre” way.

Here, verbatim, is Dean Gerken’s list of action items:

Clinics, Classes, Programs, and Centers
Create a policy-focused policing clinic.
Work to create a litigation-focused policing clinic in the spring.
Create a policing seminar.
Create an Environmental Justice Program in partnership with the Yale School of the Environment.
Create a Center for Health and Justice in partnership with Yale School of Medicine focused on incarceration and health equity.
Offer a course in Critical Race Theory every year.
Offer a wide range of courses and clinics that explore questions of racial justice and equality, including:

Incarceration, Isolation, and Criminal Justice Reform
Law and Inequality
On the Inside: Narratives from Prison
Imprisoned: From Conception and Construction to Abolition
Race, Inequality, and the Law
Constitutional and Civil Rights Impact Litigation
Environmental Justice/Climate Justice
Advanced Educational Opportunity and Juvenile Justice Clinic
Access to Law School
The Police: Reform, Transform, Defund, Abolish?
Critical Race Theory
Saginaw-Chippewa Disenrollment Clinic
Legitimacy: Theoretical Models in Criminal Justice
Criminal Justice Clinic and Seminar
Challenging Mass Incarceration Clinic and Seminar
The Constitution Goes to School
Law and Inequality Workshop

Criminal Justice and Racial Justice Work
Provide permanent financial support for criminal justice work done by students and alumni.
Continue to support and amplify the criminal justice and racial justice work being done by our faculty and our centers, including the Justice Collaboratory, the Arthur Liman Center for Public Interest Law, the Solomon Center for Health Law & Policy, the Gruber Program for Global Justice and Women’s Rights, and the Global Health Justice Partnership.

Supporting Those in Need
Bring a million books into prisons across the United States and create opportunities for incarcerated people to interact with authors and the literary community.
Increase financial aid support to help students in need to account for the economic impact of COVID-19, which has had a disproportionate effect on communities of color.
Create a dean-led initiative to make the Law School more transparent and accessible for all students.

Recruitment, Hiring, and Structural Hurdles
Ensure that our workplace, learning, intellectual, and community cultures fully align with our values.
Build on and strengthen our efforts to diversify the student body.
Build on and strengthen our efforts to hire, promote, and retain a diverse faculty.
Continue to hire and support faculty with substantive expertise in race and the law, inequality, civil rights, the school-to-prison pipeline, residential segregation, school segregation, employment discrimination, policing reform, procedural justice, mass incarceration, solitary confinement, environmental justice, educational reform, bail reform, fines and fees, misdemeanor arrests, implicit bias, sentencing reform, prison conditions, racial health disparities, economic inequality, restorative justice, wrongful convictions, voting discrimination, felon disenfranchisement, economic inequality, and the history of racial oppression.
Continue and strengthen our efforts to hire, promote, and retain a diverse staff, and work with the University to change practices and systems that impede these efforts.

History and Iconography
Build on and strengthen our efforts to diversify the iconography of the Law School through portraits, photographs, and art.
Build on the Yale Law School history project, which was started two years ago, to surface and acknowledge the Law School’s connections to slavery and racial oppression.

Workshops, Teaching, and Training
Create a dean-led pipeline program to help members of underrepresented groups become legal academics, partnering with pioneers in the field who have been supporting this work.
Create a dean-led faculty workshop on race and equality that students can take for credit.
Expand training during orientation exploring racism, inequality, and privilege, and continue to provide anti-racist training to Coker Fellows, DAs, and TAs.
Create programming examining the relationship between historical injustice, racial inequality, and contextual learning.
Provide support, including research funding, for faculty members to embed anti-racist materials into their courses.
Support the faculty-led conversations that are taking place in each of the first-term subject areas on teaching race and inequality.
Continue to advise faculty and survey students about maintaining an equitable classroom environment.
Support the commitment of the clinical faculty to incorporate anti-racism training and instruction into their own professional development and into our clinical curriculum, including professional responsibility training.
Ensure that all of the Dean’s senior advisors and senior staff will receive anti-racist training.
Encourage faculty to bring in perspectives from members of the New Haven community, especially from communities of color.

Administrative Support
Build on and strengthen efforts to ensure that every major office in the Law School employs someone charged with overseeing diversity and inclusion efforts.
Continue to support the work of our new mental-health counselor to provide mental-health resources and assistance to students of color.

Local Policing
The Law School will train our community not to call for YPD assistance on campus for non-law enforcement related matters.
The Yale Police Department has agreed to work with the Law School on a plan to redirect calls from the Law School to non-police forms of assistance whenever possible.
At our request, Chief Ronnell Higgins, who heads the Yale Police Department and Yale Security, is in the process of reevaluating the Law School’s security needs and is considering (a) deploying a swipe ID system at the entrance of 127 Wall Street during regular working hours, so that Law School staff would be the only people serving an ambassadorial/public health monitoring role inside the building, and (b) converting the role of our long-time security officers, who are unarmed, to an ambassadorial role outside of Sterling Law Building while ensuring they remain available to members of the community to help with needs like lockout assistance and walking escorts.

Law & the Courts

The Court Again Protects Religious Liberty

The Supreme Court in Washington, D.C., May 3, 2020. (Will Dunham/Reuters)

Yesterday was a great day for religious liberty at the Supreme Court. In two companion cases about the ministerial exception, Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, a 7–2 Court held that it cannot second-guess a religious school’s determination as to who should teach religion.

The ministerial exception derives from the First Amendment. The Court applied it in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) to bar an employment discrimination claim by a teacher at a Lutheran school. In that case, the teacher’s responsibilities included teaching religion and participating in school religious activities. “Minister of Religion” was part of her title.

But what about other denominations that do not make the same use of the term “minister?” Yesterday’s decision involved two cases of fifth-grade teachers at Catholic schools with employment discrimination claims. They taught religion among other subjects, prayed with their students, and participated in liturgical activities.

The Court’s opinion, written by Justice Alito, affirmed that such activity should remain within the discretion of churches, free from government interference. “The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission,” Alito observed. The Catholic school teachers’ claims were subject to the same exemption that applied in Hosanna-Tabor.

Significantly, the Court’s conclusion did not depend on whether the context involves clergy or a title that includes the word “minister.” Consider the “impermissible discrimination” that would otherwise result:

Nuns are not the same as Protestant ministers. A brief submitted by Jewish organizations makes the point that “Judaism has many ‘ministers,’” that is, “the term ‘minister’ encompasses an extensive breadth of religious functionaries in Judaism.” For Muslims, “an inquiry into whether imams or other leaders bear a title equivalent to ‘minister’ can present a troubling choice between denying a central pillar of Islam—i.e., the equality of all believers—and risking loss of ministerial exception protections. [citations omitted]

“What matters, at bottom, is what an employee does,” Alito concluded. He had made this same point in a concurring opinion in Hosanna-Tabor, and now it is the opinion of the Court. Justice Thomas, who joined the Court’s opinion, added a concurrence to maintain that “courts should defer to a religious organization’s sincere determination that a position is ‘ministerial.’” Perhaps a future Court will explicitly incorporate that proposition as well. This one came close to doing so.

Our Lady of Guadalupe School is a poignant reminder of how the Court of the last 15 years has been rock solid on religious-liberty issues. In fact, it would not be an overstatement to say the Court has never been more protective of religious freedom in its history.

Justices Ginsburg and Sotomayor were the lone dissenters, but they would have been happy to undermine protections for schools run by religious institutions. Considering that those justices were part of Hosanna-Tabor’s unanimous decision, their dissent in Our Lady of Guadalupe suggests that if they had their way, the standard that would apply to religious schools would vary based upon their denomination. As if to prove the point, Sotomayor’s dissenting opinion took an unworkable “holistic” approach and then applied that to reach a different conclusion with respect to the Catholic school teachers than she had reached in the Lutheran school case.

The dissent is a striking reminder of the need for judges who are protective of the religious liberty guaranteed by the Constitution.

Law & the Courts

This Day in Liberal Judicial Activism—July 9

(Thomas White/Reuters)

1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”

But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.”

2019—A Second Circuit panel rules (in Knight First Amendment Institute v. Trump) that President Trump “engaged in unconstitutional viewpoint discrimination by utilizing Twitter’s ‘blocking’ function to limit certain users’ access to his social media account, which is otherwise open to the public at large, because he disagrees with their speech.” The panel’s ruling rests on its determination that Trump’s Twitter account is a “public forum” for purposes of First Amendment analysis.

But as Harvard law professor Noah Feldman explains, the panel’s decision “rests on a conceptual confusion that has serious negative implications for the freedom of speech.” Far from being a public forum, Trump’s Twitter account is “property controlled by Twitter Inc.,” so it’s Twitter, not the First Amendment, that governs speech on its property.

Law & the Courts

Justice Alito’s Noteworthy RFRA Concurrence in Little Sisters Case


In his concurring opinion (joined by Justice Gorsuch) in Little Sisters of the Poor v. Pennsylvania, Justice Alito laments the “Court’s desire to decide no more than is strictly necessary”:

We now send these cases back to the lower courts, where the Commonwealth of Pennsylvania and the State of New Jersey are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the APA. This will prolong the legal battle in which the Little Sisters have now been engaged for seven years—even though during all this time no employee of the Little Sisters has come forward with an objection to the Little Sisters’ conduct.

Alito would instead review and reverse the Third Circuit’s decision that the federal Religious Freedom Restoration Act does not compel the religious exemption to the contraceptive mandate, and he would thus “bring the Little Sisters’ legal odyssey to an end.”

Here is a summary of Alito’s analysis (pp. 5-16):

The Departments responsible for administering the contraceptive mandate are obligated to do so in a manner that complies with RFRA. Applying RFRA to the mandate presents three questions:

(1) Would the mandate substantially burden the exercise of religion of an employer who has a religious objection to the mandate? Under the Court’s Hobby Lobby decision, the answer is clearly yes. Non-compliance would have substantial adverse practical consequences, and compliance would cause the employer to violate its religious beliefs, as it sincerely understands them. (Pp. 6-10.)

(2) Does the mandate serve a “compelling interest”? The government’s concession that it lacks a compelling interest in ensuring that all women have access to all FDA-approved contraceptives without cost sharing is correct. Congress itself did not treat the provision of free contraceptives to all women as a compelling interest. First, the ACA does not provide contraceptive coverage to women who do not work outside the home. Second, Congress didn’t mandate such coverage for all working women. (The mandate isn’t in the ACA; it’s a regulatory implementation of a preventive-services provision in the ACA.) Third, the ACA exempts lots of employers from its coverage requirements. Fourth, the majority’s recognition that the ACA authorized the creation of exemptions that go beyond anything required by the Constitution provides further evidence that Congress did not regard the provision of free contraceptives as a compelling interest. (Pp. 10-12.)

Further, the regulatory exemptions (by both the Obama and the Trump administrations) undermine any claim that the agencies themselves viewed the provision of contraceptive coverage as sufficiently compelling. (Pp. 12-13.)

Justice Ginsburg’s claim of a compelling interest in providing “seamless” cost-free coverage—coverage under the insurance plan furnished by a woman’s employer—is even weaker:

Apparently, it would not be enough if the Government sent her a special card that could be presented at a pharmacy to fill a prescription for contraceptives without any out-of-pocket expense. Nor would it be enough if she were informed that she could obtain free contraceptives by going to a conveniently located government clinic. [Pp. 13.]

(3) If a compelling interest existed, is the mandate the least restrictive means of serving that interest? No. As the Court said in Hobby Lobby, the government could provide contraceptives directly. (Pp. 14-15.)

The Departments had discretion in crafting the best way to remedy the RFRA violation. It isn’t clear that any narrower exemption would have been sufficient. Any employer who was satisfied with the prior accommodation may continue to operate under that regime and presumably would desire to do so. Nothing in RFRA requires that a violation be remedied by the narrowest possible corrective. (Pp. 16-18.)

Contrary to what Justice Ginsburg’s dissent argues, the rule imposes no burdens on the employees of exempt entities:

A woman who does not have the benefit of contraceptive coverage under her employer’s plan is not the victim of a burden imposed by the rule or her employer. She is simply not the beneficiary of something that federal law does not provide. She is in the same position as a woman who does not work outside the home or a woman whose health insurance is provided by a grandfathered plan that does not pay for contraceptives or a woman who works for a small business that may not provide any health insurance at all. [Pp. 18-19.]

Law & the Courts

Two Big Victories for Religious Liberty


In two separate rulings today, the Supreme Court delivered important victories for religious liberty, one, alas, much less definitive than the other.

1. In Our Lady of Guadalupe School v. Morrissey-Berru, the Court ruled by a vote of 7 to 2 that the First Amendment’s Religion Clauses—and the so-called “ministerial exception” that flows from them—bar the courts from adjudicating employment-discrimination claims by two elementary school teachers at Catholic schools. Justice Alito wrote the majority opinion. Six other justices joined his opinion: the Chief Justice, Thomas, Breyer, Kagan, Gorsuch, and Kavanaugh. Justice Sotomayor, joined by Justice Ginsburg, dissented.

The Court’s ruling builds on its Hosanna-Tabor ruling eight years ago. Here are two key excerpts:

Although these teachers were not given the title of “minister” and have less religious training than [Cheryl] Perich [the teacher in Hosanna-Tabor], we hold that their cases fall within the same rule that dictated our decision in Hosanna-Tabor. The religious education and formation of students is the very reason for the existence of most private religious schools, and therefore the selection and supervision of the teachers upon whom the schools rely to do this work lie at the core of their mission. Judicial review of the way in which religious schools discharge those responsibilities would undermine the independence of religious institutions in a way that the First Amendment does not tolerate.

What matters, at bottom, is what an employee does. And implicit in our decision in Hosanna-Tabor was a recognition that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school.

2. In Little Sisters of the Poor v. Pennsylvania, the Court ruled by the same 7-2 alignment that the Trump administration had authority under the ACA to provide exemptions from the regulatory contraceptive requirements for employers with religious and conscientious objections. Justice Thomas wrote the majority opinion for five justices: himself, the Chief, Alito, Gorsuch, and Kavanaugh. Justice Kagan, joined by Justice Breyer, concurred in the judgment only. Justice Ginsburg, joined by Justice Sotomayor, dissented.

This victory for the Little Sisters does not bring an end to the litigation. As Alito observes in his concurring opinion (joined by Gorsuch), the losing states on remand “are all but certain to pursue their argument that the current rule is flawed on yet another ground, namely, that it is arbitrary and capricious and thus violates the APA.” Alito sets forth his view that the Religious Freedom Restoration Act “compels an exemption for the Little Sisters and any other employer with a similar objection to what has been called the accommodation to the contraceptive mandate.”

By contrast, Kagan in her opinion concurring in the judgment “question[s] whether [on remand] the exemptions can survive administrative law’s demand for reasoned decisionmaking.”

Law & the Courts

This Day in Liberal Judicial Activism—July 8


1994—Some messes can take years to clean up.

In 1990, after months trying to get Henry Quade to respond to complaints about sewage and foul odors seeping from his house, state health department officials obtained a forcible-entry warrant. When they arrived at Quade’s house, Quade threatened “to get my gun and use it.” A team of police officers was called to the scene. When the officers entered the house, Quade fired a handgun at them. The officers shot back, killing Quade.

In a divided panel ruling in Alexander v. City of San Francisco, the Ninth Circuit, in a majority opinion by Judge Betty Fletcher, rules that the officers can be held liable for damages for excessive force “in creating the situation which caused Quade to take the actions he did.” In dissent, Judge Stephen Trott laments that the ruling “wreaks havoc on the Fourth Amendment.” He further observes, “If I were a police officer, I might reconsider my calling with this kind of misunderstanding of my job and inconsistent messages from the court.

Over the ensuing decades, the Ninth Circuit will apply this “provocation rule” in case after case even as other courts of appeals cast doubt on it. Finally, in 2017, a unanimous Supreme Court (in County of Los Angeles v. Mendez) will reject the Ninth Circuit’s provocation rule as “incompatible with our excessive force jurisprudence.”

Law & the Courts

Judge Wilkinson Blasts Fourth Circuit Ruling on Supposed Structural Error


The Fourth Circuit today denied en banc rehearing of the panel decision in March in United States v. Gary. Judge J. Harvie Wilkinson, joined by four of his colleagues, concurred in the denial of rehearing while slamming the panel decision:

I concur in the denial of rehearing en banc for one reason and one reason only. The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour. Many, many cases await the resolution of this question.

This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation. Is it eight—or nine—circuits that disagree with us? I have lost count, but the ranks are growing.

Here’s a quick summary of what’s at issue:

In 2017, Michael Andrew Gary pled guilty to two counts of possession of a firearm by a person previously convicted of a felony. The district court accepted his plea and sentenced him to 84 months on each count (running concurrently).

Under the Supreme Court’s 2019 ruling in Rehaif v. United States, the government would have had to prove not only that Gary possessed a firearm but also that he knew that he was a felon—that is, that he had “been convicted in any court of … a crime punishable by imprisonment for a term exceeding one year”—when he possessed it. That second element was not part of the governing law in the Fourth Circuit in 2017, so Gary was not informed of it when he pled guilty

Gary obviously knew that he was a felon at the time of his offenses. As Judge Wilkinson recounts, he had previously been “convicted of second-degree burglary and two counts of assault, each punishable by more than one year in prison,” and he had “spend upwards of nine years in prison” for those offenses.

But the Fourth Circuit panel, in an opinion by Chief Judge Roger L. Gregory (joined by Judge Henry F. Floyd and Judge Stephanie D. Thacker), held that Gary “did not knowingly and intelligently plead guilty because he was not fully informed during his plea colloquy of the elements the government had to prove to convict him” and that this error was a “structural error” that is not amenable to “harmless error” analysis.

Judge Wilkinson argues that the Supreme Court has repeatedly “made clear that structural errors are few and far between” and “are to be limited … to the kind of error that by itself invalidates the criminal proceeding.” In his summary, “structural errors are innately infectious, necessarily impugning each part of a trial, rather than potentially consequential, depending on the facts and circumstances of a given case,” and it is for that reason that they “defy analysis by harmless or plain-error review.” “A Rehaif error comes nowhere near this level,” and “the guilty plea context is an especially poor one for recognizing an elements error as structural.” The Rehaif error in this case could not have affected Gary’s “substantial rights because there is no possibility, not to mention a reasonable probability, that Gary would not have pled guilty had he been informed of that which the government could so easily have proven.”

Let’s see if the Supreme Court tees this one up for summary reversal.

Law & the Courts

First-Term Confirmations: Trump vs. Obama

Then president-elect Donald Trump and President Barack Obama arrive for Trump’s inauguration ceremony in Washington, D.C., January 20, 2017. (J. Scott Applewhite/Reuters)

The final six months of President Donald Trump’s first term has begun. One way to assess where the judicial confirmation process stands is to compare it to the process at this point during President Barack Obama’s first term.

Confirmations: The Senate has confirmed 200 of President Donald Trump’s nominations to life-tenured federal courts (23.3 percent of total judgeships), compared to 153 (17.8 percent) at this point in the Obama administration. While Trump’s confirmation total is higher by itself, it is lower as a percentage of the judicial nominations he has made, 78.4 percent vs. 83.2 percent. The gap is much wider for the U.S. Court of Appeals: Trump has appointed 53 judges (29.6 percent) compared to Obama’s 30 (16.8 percent).

Vacancies: The 73 current vacancy total compares favorably to the 75 vacancies that existed in July 2012, with two caveats. First, 58.3 percent of vacancies today have been designated “emergencies,” a category used by the Administrative Office of the U.S. Courts for longstanding vacancies that have a particularly negative effect on judicial caseloads. These vacancies have been open for an average of 932 days. This compares to a level of 38.7 percent in July 2012, when judicial emergency vacancies had been open for an average of 756 days.

Second, while the overall vacancy totals are comparable, the number of vacancies on the U.S. Court of Appeals is not. For the first time in decades, not a single current or known future appeals court vacancy exists in the United States, compared to twelve appeals court vacancies (16 percent) in July 2012.

One interesting difference between then and now: On June 20, 2012, the president of the American Bar Association sent a letter to the Senate majority and minority leaders to say that the 73 vacancies at that time were “dangerously high” and constituted a “vacancy crisis.” Even though the same number of vacancies exists today, the ABA does not appear similarly concerned.

Pending Nominations: Today, a total of 45 nominations to life-tenured federal courts are pending in the Senate, 33 in the Judiciary Committee, and twelve listed on the full Senate’s executive calendar. At this point in 2012, 13 nominations to the U.S. District Court and four to the U.S. Court of Appeals were listed on the executive calendar.

Cloture Votes: Democrats have forced the Senate to take a separate vote to invoke cloture, or end debate, on 155 of the 200 judicial nominations (77.5 percent) confirmed so far for Trump, compared to five cloture votes (3.3 percent) for Obama nominations confirmed at this point during his presidency. This difference is even more significant because filibusters could be used to defeat nominations during Obama’s first term since cloture required 60 votes. Since November 2013, however, cloture requires only a simple majority, which means forcing the Senate to take cloture votes can delay, but not defeat, nominations.

Opposition: Trump’s judicial nominations have received an average of 22 votes against confirmation, compared to an average of 4.8 votes against confirmation of Obama’s nominations. The pattern during the Obama administration was similar to the longer historical picture; the judicial nominations of President Teddy Roosevelt through Obama received an average of 0.8 votes against confirmation.

The top ten Senate opponents of Trump’s judicial nominations have voted against them an average 81.3 percent of the time, while the top ten opponents of Obama’s first-term judicial nominations voted against them just 9.6 percent of the time. Eighty-five percent of Senate Democrats have voted against more than half of Trump’s nominations, but no senator voted against more than 14 percent of Obama’s.

Looking Forward: In 2012, the Senate Judiciary Committee held hearings on judicial nominations until December 12, and the Senate was confirming them until four days before Christmas 2012. Even though the historic norms of the judicial confirmation process have all been radically disrupted (see this new Heritage Foundation report), judicial vacancies are their lowest level since Trump took office. Confirming the nominations already pending in the Senate would give Trump the second-highest confirmation total in a single presidential term and would strengthen the judiciary’s ability to play its designed role in our political system.

Law & the Courts

This Day in Liberal Judicial Activism—July 7

(Reuters photo: Keith Bedford)

2014—President Jimmy Carter’s sorry judicial legacy lives on. Thirty-five years after his appointment by Carter, 90-year-old Ninth Circuit judge Harry Pregerson—still in regular (rather than senior) status—authors a panel opinion that preliminarily enjoins the state of Arizona from implementing a policy that prevents a class of illegal aliens from obtaining driver’s licenses. The liberal diehard holds (among other things) that the policy likely violates the Equal Protection Clause.

The state policy concerns those illegal aliens subject to the Obama administration’s non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.

Law & the Courts

Ninth Circuit Panel Divides Sharply on Scope of Injunction Against Immigration Rule


In an opinion issued today in East Bay Sanctuary Covenant v. Barr, a Ninth Circuit panel ruled unanimously that plaintiffs—nonprofit organizations that represent asylum seekers—were entitled to injunctive relief against a rule jointly issued by the Department of Justice and the Department of Homeland Security. Under that rule, aliens who did not previously seek asylum in a third country through which they traveled on their way to the United States are generally barred from receiving asylum in the United States.

The panel members divided sharply, however, on the scope of injunctive relief to which the plaintiff organizations were entitled.

Judge William A. Fletcher opined that the harm that the plaintiff organizations suffered—namely, having to “overhaul their programs and pursue more complex and time-and-resource intensive forms of relief” for asylum seekers—was not limited to the Ninth Circuit, as the organizations also “suffer[ed] from their inability to represent, and to protect, aliens seeking to enter the United States through Texas or New Mexico.” For this and other reasons, he concluded that the district court’s injunction properly covered “the four states along our border with Mexico.”

Judge Richard R. Clifton, who concurred in the remainder of Fletcher’s opinion, wrote separately to state that he concurred only in Fletcher’s conclusion regarding the scope of the injunction. Circuit precedent in his view supported that conclusion, but he did not want to be misunderstood as “express[ing] agreement with or affirmative support for the reasoning behind the relevant portions” of those circuit precedents.

Judge Eric D. Miller dissented on the scope of the injunction. (See pp. 61-66.) He observed that “the injunction is broad not only in a geographic sense but also because it applies universally to everyone affected by the rule, not just to the plaintiffs in this case.” Universal injunctions “sidestep[]” rules that limit granting class-wide relief, and they conflict with the principle that—here he quotes Supreme Court precedent—“injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Further, the plaintiff organizations do not have third-party standing to assert the rights of potential future clients. Miller would therefore “restrict the injunction along the lines suggested by the government, so that it prohibits the application of the rule only to asylum seekers who are bona fide clients of the plaintiff organizations.”

Despite the plaintiffs’ victory in the Ninth Circuit, the district court’s injunction will not go into effect. Last September, the Supreme Court entered an order blocking it not only for the pendency of the Ninth Circuit appeal but pending disposition of any petition by the government for a writ of certiorari.

For those keeping score at home: Fletcher was appointed by Bill Clinton, Clifton by George W. Bush, and Miller by Donald Trump.

Law & the Courts

This Day in Liberal Judicial Activism—July 6

Judge Rosemary Barkett.

1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence.

But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight.

2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right.

Law & the Courts

This Day in Liberal Judicial Activism—July 5


1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. (See This Day for February 14, 1992, for the rest of the story.)

Law & the Courts

This Day in Liberal Judicial Activism—July 4

The Declaration of Independence (Wikimedia Commons)

1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?

Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.

Law & the Courts

This Day in Liberal Judicial Activism—July 3

U.S. President Donald Trump visits a section of the U.S.-Mexico border wall in Otay Mesa, California, U.S. September 18, 2019. (Tom Brenner/Reuters)

2019—In Sierra Club v. Trump, a divided Ninth Circuit panel bars the Trump administration from reprogramming appropriated funds to build a border wall with Mexico. Specifically, the panel leaves in place, pending its consideration of the government’s appeal, a permanent injunction entered by a district court against the use of reprogrammed funds. In dissent, Judge N. Randy Smith concludes that plaintiffs have no cause of action (no legal claim) that they are entitled to invoke.

Three weeks later, the Supreme Court, by a 5-4 vote, will override the Ninth Circuit’s ruling and block the district court’s injunction from taking effect. (In June 2020, another divided panel of the Ninth Circuit will affirm the district court’s injunction.)

Law & the Courts

NYT’s Cheap Whack at Louisiana Solicitor General Elizabeth Murrill


In the course of an oh-so-predictably tiresome New York Times house editorial on the Supreme Court’s abortion ruling in June Medical Services v. Russo, I was very surprised to run across this cheap whack at Louisiana solicitor general Elizabeth Murrill:

Another factor that’s nearly certainly at play here is that the lawyer who argued for Louisiana during oral arguments in March, State Solicitor General Elizabeth Murrill, is widely believed to have bungled the job, answering questions so ineptly that she gave the chief justice little to work with, even if he had been inclined to side with the court’s other conservatives.

The editorial goes on to contend that “the rights of millions of women hinged in part on someone having a bad day in court.”

I attended the oral argument in the case—more precisely, I ended up listening to the argument in the lawyers’ lounge—and Murrill’s oral argument struck me as well within the ordinary range of oral arguments at the Court. I’ve inquired of a couple of people who were in the courtroom, and their reaction was the same as mine. To be sure, the case was an especially difficult one to argue, both because it involved a complicated factual record and because Murrill faced a barrage of hostile questioning from the liberal justices. As is often the case, there is surely room for critics to engage in hindsight second-guessing of her argument. But the editorial board’s slam of Murrill strikes me as very unfair.

Note that the hyperlinked support for the editorial’s claim that Murrill is “widely believed to have bungled the job” is a single Slate piece by Mark Joseph Stern. Consistent with his usual level of propaganda, Stern contended that Murrill “lied” and made “falsifications of the record.” But a careful parsing of his charges shows that he was faulting Murrill for pushing back on the debatable inferences and characterizations of the record that the liberal justices were advancing as part of their attack on the favorable Fifth Circuit decision that Murrill was defending.

Why did the NYT editorial board go so strangely out of its way to disparage Murrill? I’ll hazard a conjecture. The editorial board presents itself as “a group of opinion journalists whose views are informed by expertise, research, debate and certain longstanding values.” Foremost among those values is a commitment to unrestricted abortion as a supposed protection of (in the words of the editorial) “the bodily autonomy of American women.” That a highly accomplished female attorney like Murrill would vigorously defend Louisiana’s law (as her job as state solicitor called for her to do) threatens the progressive fiction that all intelligent and educated women must be pro-abortion. Murrill must be punished for betraying the Sisterhood.

Most Popular

Year Zero

Every cultural revolution starts at year zero, whether explicitly or implicitly. The French Revolution recalibrated the calendar to begin anew, and the genocidal Pol Pot declared his own Cambodian revolutionary ascension as the beginning of time. Somewhere after May 25, 2020, the death of George Floyd, while ... Read More

Year Zero

Every cultural revolution starts at year zero, whether explicitly or implicitly. The French Revolution recalibrated the calendar to begin anew, and the genocidal Pol Pot declared his own Cambodian revolutionary ascension as the beginning of time. Somewhere after May 25, 2020, the death of George Floyd, while ... Read More

From ‘Anchors Aweigh’ to Away-from-Church

If any group of Americans could reasonably be expected, and trusted, to conduct themselves in ways that minimize the danger of spreading infection during public worship, you might think that would be the men and women of the U.S. armed forces. They’re used to obeying orders, including those that involve ... Read More

From ‘Anchors Aweigh’ to Away-from-Church

If any group of Americans could reasonably be expected, and trusted, to conduct themselves in ways that minimize the danger of spreading infection during public worship, you might think that would be the men and women of the U.S. armed forces. They’re used to obeying orders, including those that involve ... Read More

COVID’s Comeback

We’re living in Groundhog Day. For the second time this year, COVID-19 is sweeping the country and we don’t have any great options for dealing with it. We didn’t squander the past four months, exactly, but we demonstrably failed to get to a place where we can enjoy an open society without the virus taking ... Read More

COVID’s Comeback

We’re living in Groundhog Day. For the second time this year, COVID-19 is sweeping the country and we don’t have any great options for dealing with it. We didn’t squander the past four months, exactly, but we demonstrably failed to get to a place where we can enjoy an open society without the virus taking ... Read More