Law & the Courts

This Day in Liberal Judicial Activism—January 19


1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.

—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

White House

Liberals Keep Using the Word ‘Impartiality,’ but It May Not Mean What They Think

Clerk of the House Cheryl Johnson and House Sergeant at Arms Paul Irving deliver the articles of impeachment against President Donald Trump on Capitol Hill, January 15, 2020. Following are impeachment managers House Judiciary Committee Chairman, Rep. Jerrold Nadler, House Intelligence Committee Chairman Adam Schiff, Rep. Hakeem Jeffries, Rep. Sylvia Garcia, Rep. Val Demings, Rep. Zoe Lofgren, and Rep. Jason Crow. (Tom Brenner/Reuters)

In a column published at in December, one commentator argued that senators who refuse to be impartial should be disqualified from participating in the impeachment trial of President Donald Trump. A few days ago, an ethics lawyer from the George W. Bush administration called Senate majority leader Mitch McConnell (R., Ky.) a “perjurer” for taking the oath to “do impartial justice” in the trial after saying he would not be an “impartial juror.” They might want to reconsider their position.

If these people really mean what they say, of course, any senator who has taken a position on the president’s guilt would have to bow out. In that case, say goodbye to Senator Kamala Harris (D., Calif.). On Monday, Jan. 13, she spoke on the Senate floor and stated, as a fact, that Trump “pressured a foreign nation to interfere in our elections.” That’s an almost word-for-word recitation of the first impeachment article, which states that Trump “solicited the interference of a foreign government . . . in the 2020 United States Presidential election.”

Harris went on to say that “it is unacceptable for a president to shake down a vulnerable foreign nation for personal or political benefit.” This too echoes the first impeachment article, which claims that Trump used the power of his office “to obtain an improper personal political benefit.”

If publicly accusing a defendant of the specific offense for which he has been impeached, in virtually identical language as that impeachment, is not refusing to be impartial, what is? Harris, however, is far from alone.

Senator Mazie Hirono (D., Hawaii), who had rejected the presumption of innocence during the confirmation process for Justice Brett Kavanaugh, has said she would vote to convict unless Trump could actually exonerate himself. Senator Sheldon Whitehouse (D., R.I.) says that the impeachment articles are supported by “a wealth of undisputed facts.” And Senator Richard Blumenthal (D., Conn.) was even more direct, say that the “case is clear: President Trump tried to trade away our national security for a personal political favor.” As if reading directly from the same talking points, Senator Kirsten Gillibrand (D., N.Y.) says that “President Trump put our national security at risk in order to obtain political favors.” And Senator Christopher Murphy (D., Conn) insists that “the bottom line is this: President Trump abused his authority by using taxpayer funded aid to pressure a foreign government to help him win re-election in 2020.”

Senate minority leader Charles Schumer, (D., N.Y.) has similarly attacked McConnell, accusing him of refusing to be impartial. Yet, as CNN has reported, leading up to President Bill Clinton’s impeachment trial, Schumer repeatedly said that the Senate is “not like a jury box.” Indeed, when running for the Senate in 1998, he asked people to vote for him precisely because he would be a vote to acquit Clinton.

Impartiality, anyone?

House Democrats rigged the rules to guarantee a pre-determined impeachment result. Now Senate Democrats are trying to rig the jury pool by trying to exclude senators not likely to convict. We all know how this is going to end. Try the impeachment and let’s move on.

Law & the Courts

Ninth Circuit Dismisses Climate-Change Lawsuit

As I detail more fully here, more than three years ago Oregon federal district judge Ann L. Aiken issued perhaps the most pervasively lunatic ruling I have ever seen. In Juliana v. United States, she denied the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claimed that they have a substantive due process right to a stable climate.

I’m pleased to report that a Ninth Circuit panel, taking the not-so-subtle hint that the Supreme Court provided, has finally determined that the plaintiffs lack standing to pursue their case. The majority—opinion by Judge Andrew Hurwitz, joined by Judge Mary Murguia—sensibly, though “[r]eluctantly,” concluded that the federal courts can’t provide the plaintiffs the redress they seek, i.e., an order requiring the government to develop a plan to “phase out fossil fuel emissions and draw down excess atmospheric CO2.” Redressability being an essential component of standing, the majority directed Aiken to dismiss the lawsuit.

Judge Josephine L. Staton—a district judge sitting by designation on the Ninth Circuit panel—dissented. I haven’t gotten much further than her third sentence, which reads—I’m not kidding—“Seeking to quash this suit, the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”

Law & the Courts

Slate Hit Piece on Judge Barrett Badly Misfires—Part 2

In my Part 1 post, I showed that Mark Joseph Stern, in his Slate article attacking Seventh Circuit judge Amy Coney Barrett, badly messes up his account of the nine cases that he invokes against Barrett. In this post, I will offer some broader criticisms of his hit piece.

In her two-plus years on the Seventh Circuit, Judge Barrett has taken part in nearly 200 reported decisions and has written nearly 60 opinions. That’s on top of the larger number of unpublished decisions that she has taken part in. Any serious review of Barrett as a judge would attempt to take account of her whole record.

Had Stern made any effort to do so, he would have encountered much that would complicate his simplistic flawed narrative. To cite just a few examples:

Barrett joined an opinion by liberal Obama appointee David Hamilton (Gonzalez Ruano v. Barr) that held that an alien had demonstrated statutory eligibility for asylum. She also wrote an opinion (Ruderman v. Whitaker), joined by liberal Clinton appointee Diane Wood, that rejected the Board of Immigration Appeal’s conclusion that an alien was statutorily inadmissible. So much for Stern’s claim that Barrett “consistently rules against immigrants seeking relief from deportation.”

Barrett joined an opinion (Price v. City of Chicago—see my fuller discussion here) that ruled that Chicago’s “bubble zone” ordinance against anti-abortion sidewalk counselors did not violate the counselors’ First Amendment rights. That rather complicates Stern’s baseless insinuation that Barrett’s judging is warped by pro-life sentiments.

As for Stern’s charge—based on zero actual evidence—that Barrett “has little sympathy for most powerless people”: Barrett has ruled for “powerless people” on lots of occasions, not because she was improperly indulging her “sympathy,” but because she was applying the law impartially.

Barrett has voted to reverse the Social Security Administration’s denial of benefits in several cases. See, e.g., Derry v. Berryhill, Akin v. Berryhill, Thompson v. Berryhill, and Kaminski v. Berryhill.

She wrote an opinion (Goplin v. WeConnect) that denied an employer’s effort to compel arbitration; the employee in whose favor she ruled alleged violations of the Fair Labor Standards Act and sought to pursue a class action under state law.

She wrote an opinion (United States v. Watson), joined by Hamilton, that held that the police violated a felon’s Fourth Amendment rights when they blocked his car from leaving a parking lot (and found that he had a gun). She wrote another opinion (United States v. Terry), joined by Wood, that held that DEA agents executing an arrest warrant for conspiracy to possess and distribute heroin violated the suspect’s Fourth Amendment rights when they concluded that a woman who answered the door at the suspect’s apartment while wearing a bathrobe had authority to consent to a search of the premises.

She voted to reverse summary judgment and deny qualified immunity in a case (Howard v. Koeller) involving alleged retaliation by a prison guard. She also voted to deny qualified immunity (Broadfield v. McGrath) on a claim that jail officials used excessive force against a detainee. She also joined an opinion by Judge Hamilton (Wallace v. Baldwin) that, reversing the district court, held that a prisoner was entitled to pursue a claim that his prolonged isolation in solitary confinement violated his constitutional rights. So much for Stern’s ill-founded claims that Barrett has an “eagerness to weaken constitutional protections for inmates injured by prison guards” and a “zeal to protect these guards from consequences.”

She has voted to reverse several district-court judgments that dismissed section 1983 claims against state officers for alleged civil-rights violations. See, e.g., Miller v. Larson, Walker v. Price (opinion by Barrett), Brooking v. Branham, and Phillips v. Illinois Department of Finance.

Yes, this is the judge (and longtime law professor) who Stern, unembarrassed by his most extravagant rhetoric, alleges “has spent her career opposing the very principles of justice and equality for which [Justice] Ginsburg stands.” Ridiculous.

Lest anyone be concerned by this litany of rulings: On my review of them, I think that Barrett probably got them all right. More broadly, I believe that she, like many other of the rumored leading candidates, would be an outstanding nominee for a Supreme Court vacancy.

Law & the Courts

Federal Civil Rights in the Supreme Court: Individual or Identity?

A general view of the U.S. Supreme Court in Washington December 3, 2013. (Jonathan Ernst/Reuters)

Before July of this year, the Supreme Court will hand down decisions in three separate cases that together will determine what a “right” is in federal civil-rights laws. The Court will be deciding whether such laws are legal measures based on intention and the definitions of words or open-ended legislative measures designed to ensure outcomes and re-arrange society. Two of the three cases concern federal employment law, and the third deals with the making of contracts. Thus, their subjects are work and commerce, a fundamental basis of current American culture and society.

Oral arguments were heard on Wednesday of this week in the age-discrimination case of Babb v. Wilkie. The plaintiff, a pharmacist at the Department of Veteran’s Affairs, had filed suit under the federal Age Discrimination in Employment Act, a federal law that prohibits age discrimination only in the federal work force (29 USC 633a.). Unlike the related federal law which prohibits age discrimination in the private sector and state/local governments “because of” age, 29 USC 623(a), the federal workforce law states only that personnel actions shall be “made free from any discrimination based on age.”

The plaintiff, a woman over the age of 50, alleged that she was passed over for promotion and denied other employment benefits because of her age, when other pharmacists “in their 30s” received the benefits. She alleged a long list of grievances occurring over two-year period, and even though she did receive a promotion in the end, she still found herself “very upset” concerning one of the conditions of that new job. The Supreme Court certified arguments only about age discrimination, but the Babb plaintiff sweetened the pot with claims of sex discrimination as well. “Most” of those “30s” pharmacists were “male.”

Babb argued that she did not have to prove that “age” was the sole and determinative reason — that is, “but for” age she would not have been denied benefits. It was sufficient, she said, that age be only “a factor” and that the “making free”-from-discrimination language of the law required only that. The federal government, the defendant in the suit, argued that the “based on,” not the “making,” language of the law defined the required but-for intent, which is also the “common law default” rule of intentional causation.

The government cited and made a comparison with the 2013 Nassar decision, in which the Supreme Court ruled in a Title VII private-sector employment-retaliation case, that discrimination based on the lesser statutory standard of “motivating factor” still required but-for causation. The Nassar standard was essentially the same as the “making free” statutory standard of the federal public-sector age discrimination law, the government contended. In addition, the government argued that a ruling for Babb would give federal employees “greater rights” on a lesser and more easily proved standard than private-sector employees.

In Comcast v. National Association of African-American-Owned Media, argued in the Supreme Court in November, Entertainment Studios Network (ESN), an African-American corporate owner of several television networks, invoked the first federal civil-rights law, 42 U.S.C. 1981, originally enacted in 1866 — before the Fourteenth Amendment — to claim that Comcast, the telecommunications conglomerate, had racially discriminated against it by refusing to carry ESN’s networks. After extensive negotiations, Comcast had in the end declined to enter into a contract with ESN in violation, ESN asserted, of 1981’s guarantee of “the same right” as is “enjoyed by white citizens” to “make and enforce contracts.”

The case was dismissed three times in federal district court, but the Ninth Circuit, although acknowledging “the default rule” of “but-for” causation in federal civil-rights litigation, held for ESN that race needed only to have played “any role,” even if not “the sole cause,” in Comcast’s refusal to contract with ESN. The Circuit essentially ruled in that fashion because it said that 1981’s use of the phrase “same right” and its lack of any “because” or “but-for” type of language as in other civil-rights statues left open more opportunities to make a case of racial discrimination. In the Supreme Court, ESN endorsed that ruling and argued that the overall sense of 1981 allowed suits to be based on race merely as a “motivating factor.”

In disagreement, Comcast noted that Congress had made major revisions in federal civil-rights laws in 1991, including adding the statutory standard of “motivating factor” to Title VII federal-sector employment-retaliation law, but had not added a “motivating factor” as a basis for a private-sector 1981 lawsuit. And like the government in Babb, Comcast also argued that the Nassar “but-for causation” holding is the “default rule” that Congress “is presumed to have incorporated.” The Justice Department, while not a party to the suit, filed an amicus brief and was granted oral argument by the Court. The Department supported Comcast and argued for the “but-for” standard.

In Zarda and two companion cases, argued in the Supreme Court in October, the plaintiffs asked the Court to expand the term “sex” in Title VII of the Civil Rights Act of 1964 to include “sexual orientation” as a “function” of sex. All three cases involved alleged employment discrimination based on sexual orientation. The defendants were private employers, but the Justice Department requested and was granted oral argument to defend the meaning of the word “sex.” The standard rule of construction concerning the definition of legislative terms is: “Unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning.” Perrin v. United States, 444 U.S. 37,42 (1979). In its enactment in 1964, Title VII did not define “sex” because it occurred to no one that sex needed defining. Proposals to include sexual orientation in Title VII have been repeatedly introduced into the Congress beginning as far back as 1974 but have never been enacted.

Two of these three cases awaiting decisions by the Supreme Court have been conceived in grandeur and even megalomania. It is proposed to have the Court enact a new Title VII sex-orientation law — that is, to legislate — about a subject that no one can claim was ever in the minds of the members of Congress who passed the original and still unchanged sex-discrimination law. How can Americans, particularly employers, be expected to know what “sexual orientation” includes, as opposed to the simple question “what are the two sexes?” And how will it continue to evolve? The former “gay” is now at least LGBT and is regularly said to include more categories. We deal here with a national employment law that applies and has daily force in that part of society, commerce and the marketplace that every American participates in. Has there ever been a similar case?

The originating civil complaint filed by ESN against Comcast had its own grand sweep. First, it sought $20 billion dollars in damages. Second, in recognition of the inconvenient fact that Comcast already carried other partially-African-American-owned networks, ESN decided to make its stand as the only “100% African American-owned” media corporation. It then alleged a conspiracy against not only the federal government’s Federal Communications Commission as a defendant and a co-conspirator but these others as named co-defendants: the NAACP, the Urban League, the National Urban League, Al Sharpton, Time-Warner Cable. Al Sharpton and the federal government in league with each other! Third, ESN took panoramic advantage of the special history of 1981, referring to “slavery” and a general “racism” and calling 1981 “an expansive statute.”

In this era of ever-increasing identity politics, three coming decisions of the Supreme Court will have a direct bearing on what was the original purpose of federal civil-rights laws: individual rather than group rights.

Law & the Courts

This Day in Liberal Judicial Activism—January 17


2014—Retired Sixth Circuit judge Boyce F. Martin Jr.’s career of zany lawlessness ends in rank public disgrace, as the Judicial Conference of the United States denies his request to keep confidential the results of a Judicial Council investigation into up to $138,500 of “questionable travel reimbursement expenses.”

By suddenly retiring in May 2013, Martin succeeded in obtaining a dismissal of the misconduct proceedings against him. But the Judicial Council decided that the public interest required disclosure of the charges against Martin.

Further, in an action that one federal judicial expert called “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.

2014—The judicial butchering of the Constitution continues. In Kosilek v. Spencer, a divided panel of the First Circuit affirms a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name has been changed to Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”

Eleven months later, the en banc First Circuit will overturn the panel ruling by a 3-2 vote.

Law & the Courts

Transgender Pronoun Conflict in the Fifth Circuit

A Fifth Circuit panel yesterday (in U.S. v. Varner) divided on two questions. The first question was whether the district court properly denied the motion of a federal prisoner, Norman Varner, to change the name on his judgment of confinement to “Kathrine Nicole Jett.” On this question, the panel majority (opinion by Judge Stuart Kyle Duncan, joined by Judge Jerry Smith) ruled that the district court lacked jurisdiction to entertain the motion. Judge James Dennis, in dissent, would have affirmed the district court’s denial of Varner’s motion.

The second question—one that has already spawned a lot of controversy—was whether to grant Varner’s motion that he be addressed with female pronouns. Varner’s motion, titled “Motion to Use Female Pronouns When Addressing Appellant,” read in full as follows:

I am a woman and not referring to me as such leads me to feel that I am being discriminated against based on my gender identity. I am a woman—can I not be referred to as one?

The majority opinion understood the motion “as seeking, at a minimum, to require the district court and the government to refer to Varner with female instead of male pronouns.” The majority set forth three reasons for denying Varner’s motion. In brief (citations omitted):

First, no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity….

Second, if a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality…. Increasingly, federal courts today are asked to decide cases that turn on hotly-debated issues of sex and gender identity. In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.

Third, ordering use of a litigant’s preferred pronouns may well turn out to be more complex than at first it might appear…. [O]ne university has created this widely-circulated pronoun usage guide for gender-dysphoric persons:

In dissent, Judge Dennis interprets Varner’s motion as “simply requesting that this court, in this proceeding, refer to Varner using her preferred gender pronouns.” Dennis argues that this is the “most faithful interpretation” of Varner’s motion and “also the narrowest.” Under Dennis’s proposed disposition of the other issue in the case—his request for a name change on his judgment of confinement—he says that “it is not necessary to use any pronoun in properly disposing of this appeal,” as he would simply “affirm the district court for the reasons it assigns.” But if pronouns were needed, he would use female pronouns for Varner “out of respect for the litigant’s dignity.” Dennis also contends that because, in his view, “the majority creates a controversy where there is none by misinterpreting Varner’s motion,” it has rendered an advisory opinion that “is dictum and not binding precedent in this court.”

I find Dennis’s dissent very confusing.

I have never heard of a principle of giving a request for relief the “narrowest” possible interpretation. On the contrary, for pro se litigants (persons without counsel), the usual rule is to construe their requests liberally. (By one account, the Fifth Circuit is among the four federal appellate courts that “stand at the vanguard of liberal pro se construction in the federal system.”)

Varner broadly argues that “not referring to me as [a woman] leads me to feel that I am being discriminated against based on my gender identity.” That’s not an argument that is limited to how the Fifth Circuit panel refers to him. As the majority points out, the district court’s order referred to Varner with male pronouns, as did the government in its brief. It’s reasonable to think those references are what triggered Varner’s motion. In any event, if Dennis had thought it useful to seek additional clarity on the question, he could have requested that the motion be removed from the Fifth Circuit’s summary calendar and receive full briefing.

I also don’t see how the panel majority could be expected to avoid using pronouns to refer to Varner. On the name-change issue, the majority doesn’t agree with Dennis that it could simply “affirm the district court for the reasons it assigns.” It would be extremely awkward for it to write an opinion that avoided using pronouns. Male pronouns referring to Varner appear dozens of times in the majority’s opinion. Do we really expect the court to rewrite its first sentence to read “Norman Varner, federal prisoner # 18479-078, appeals the denial of Varner’s motion to change the name on Varner’s judgment of confinement to ‘Kathrine Nicole Jett’”? Or to expend lots of effort to write around using pronouns? Dennis also has no answer to the majority’s illustration of how complex it could become to use a litigant’s preferred pronouns.

Dennis also seems clearly wrong that the majority opinion is advisory, is dictum, and is not binding precedent. The opinion isn’t advisory, as the motion is properly before the court. Nor is the opinion dictum and therefore not binding as precedent. On the majority’s understanding of the motion, the issues it addresses were presented, and the majority decided them. That’s what matters. To illustrate the point: Assume that a Supreme Court majority determined that it had jurisdiction in a case and proceeded to decide the merits. Would anyone take seriously an argument by the dissenters on the jurisdictional question that the Court’s decision on the merits was dictum and not binding precedent?

Law & the Courts

This Day in Liberal Judicial Activism—January 16

San Francisco, Calif. (Pixabay)

2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.

When various religious groups sponsored an advertising campaign offering “healing for homosexuals,” the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

Law & the Courts

Slate Hit Piece on Judge Barrett Badly Misfires—Part 1

In this Slate piece yesterday, Mark Joseph Stern fires his ammunition at Seventh Circuit judge Amy Coney Barrett, a leading contender for the next Supreme Court vacancy. Stern manages, however, to get wrong just about everything that matters.

In this post, I’ll address each of the nine cases that Stern invokes in supposed support of his sweeping mischaracterizations of Barrett’s record. In a second post, I’ll have some further comments on those mischaracterizations.

Let’s start with the cases in which Stern makes glaring errors:

Schmidt v. Foster: Stern complains that Barrett “wrote (again in dissent) that a criminal defendant did not have a right to counsel when a judge grilled him on the details of his crime.” In fact, Barrett never reached the question whether the defendant, Schmidt, had a right to counsel, and expressly left open that, if that question were actually teed up for decision, he might: “Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case.” (Slip op. at 44.)

What Stern completely misses is that Schmidt’s case involved his application for a writ of habeas corpus—a challenge, that is, to his state-law conviction for murder—not a direct appeal of a federal conviction. The relevant question in addressing Schmidt’s habeas application was whether the judge’s decision to question Schmidt without counsel in a pretrial hearing involved an unreasonable application of clearly established Supreme Court precedent. Barrett explains at length that “[n]o Supreme Court precedent addresses the question presented by this case: whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding.” Schmidt’s habeas petition therefore failed.

Stern also somehow misses that the en banc Seventh Circuit, by a vote of 7 to 3 (with Barrett in the majority), reversed the panel majority’s decision and adopted the position in Barrett’s dissent. 

Given Stern’s highly selective practice of citing judges who disagree with Barrett when he thinks it helps his case, I’ll note that the district judge (Charles N. Clevert Jr.) who denied Schmidt’s habeas petition was a Clinton appointee and that the two judges in the panel majority were liberal Democratic appointees Diane Wood and David Hamilton. (Wood and Hamilton were joined in the en banc dissent by Ilana Rovner, who, though appointed by President George H.W. Bush, is no one’s idea of a judicial conservative.)

Ramos v. Barr: Stern faults Barrett for “cast[ing] the deciding vote permitting the deportation of a lawful permanent resident who resided in the U.S. for 30 years, even though—as the dissent pointed out—the law banishing him may violate equal protection.” (Emphasis added.) That curious last phrase is a tell. The dissenter (the liberal Hamilton) did indeed offer the very weak assessment that Ramos’s equal-protection claim “might be right” and that “it is not impossible” that he might prevail on it. But that assessment validates the majority’s conclusion (in a five-sentence order) that Ramos had failed to demonstrate the “substantial likelihood of success on the merits” required for a stay of his deportation.

Stern leaves the impression that Ramos was deported without ever having his equal-protection claim addressed. He somehow overlooks that several months later a unanimous merits panel rejected Ramos’s equal-protection claim (and cited decisions of the Second Circuit and the Ninth Circuit in doing so).

Kanter v. Barr: In a nasty swipe, Stern writes: “If Barrett has little sympathy for most powerless people, there is one class she favors: individuals convicted of a felony who seek to possess firearms.” He complains that Barrett’s dissent in this case “was larded with historical references and jabs at other judges for treating the Second Amendment as a ‘second-class right,’” and he charges that her dissent “was an obvious audition for the Supreme Court.”

Barrett’s dissent in fact affirms the proposition that “the state can take the right to bear arms away from a category of people that it deems dangerous”—a category that, she notes, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” What the state can’t do, she concludes from her lengthy historical analysis, is deprive felons of their Second Amendment rights “solely because of their status as felons.”

Stern conveniently omits to mention that the felon in this case who was seeking restoration of his right to possess a firearm had committed the offense of—lock your doors now!—falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and of billing Medicare on that basis.

To contend that Barrett’s dissent “was larded with historical references” is a strangely pejorative way to refer to her impressive historical analysis, which runs over some twenty pages. I have no idea what “jabs at other judges” Stern is imagining. In her only reference to a “second-class right,” Barrett is quoting Justice Alito’s plurality opinion (more precisely, from a portion of his lead opinion that garnered a plurality rather than from the majority portions) in the Second Amendment ruling in McDonald v. City of Chicago.

Planned Parenthood v. Commissioner: Stern contends that Barrett joined a dissent by Judge Frank Easterbrook “[1] suggesting that states may prohibit women from terminating a pregnancy because of the fetus’ race, sex, or disability [and] [2] suggesting that states may enact total bans on pre-viable abortions in contradiction of Supreme Court precedent.

The first supposed suggestion is a stretch: Easterbrook argued that the Supreme Court’s precedents “did not address” the validity of an anti-eugenics law. The second supposed suggestion is an outright falsehood. The case had nothing to do with a “total ban.” (Stern also misses that Easterbrook concurred in the denial of en banc rehearing on this issue.)

Planned Parenthood v. Box: Entangled in his own confusion, Stern asserts that “Barrett also voted to vacate a decision that would’ve forced minors to notify their parents before undergoing an abortion under all circumstances, a direct violation of Supreme Court precedent.” I gather that he means roughly the opposite of what he says: in other words, he is objecting that Barrett supposedly voted to vacate a decision that relieved minors of a parental-notification requirement.

What Barrett did do was vote to rehear en banc a panel decision (liberal majority of Hamilton and Rovner) that barred an Indiana law from ever taking effect. That law, enacted in 2017, provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.”

Stern is plainly wrong to say that the law required parental notification for a minor’s abortion “under all circumstances.” For the same reason, he’s wrong to say that the law was “a direct violation” of the Supreme Court precedent, Bellotti v. Baird (1979), that he links to. Indeed, the panel majority expressly disclaimed reliance on Bellotti: “Because we decide this appeal based only on an application of Casey’s undue burden standard, we need not and do not decide whether Bellotti applies to all parental notice requirements.” (He’s also wrong to say that the law required notification by the minor.)

Now let’s look at some of Stern’s somewhat more subtle errors and distortions:

McCottrell v. White: Stern’s lead claim in his piece is that Barrett’s “troubling dissent” in this case somehow “signaled her eagerness to weaken constitutional protections for inmates injured by prison guards.” In this case, two inmates sued two prison guards for injuries they suffered when the guards discharged their shotguns over a crowded prison dining hall. The legal question on appeal was whether the district court properly granted summary judgment in favor of the guards on the inmates’ claim that the guards violated their Eighth Amendment right against cruel and unusual punishments.

Applying settled Supreme Court precedent, Barrett explained that the inmates, in order to establish an Eighth Amendment violation for the use of excessive force, had to show that the guards acted “maliciously and sadistically.” On her understanding of the briefing, the inmates “did not argue—and had no evidence to prove—that the [guards] intentionally hit anyone.”

There is a lot of back and forth between the majority and Barrett, and I can’t possibly do justice to it concisely, but the relevant point here is that their differences turned heavily on such highly particularistic matters as whether there was any plausible evidence that the guards fired directly toward the inmates rather than into the ceiling. Barrett’s dissent doesn’t undertake to revise “constitutional protections”; she and the majority simply disagree on how those protections apply in this case.

Stern posits that the fact that the inmates were struck by buckshot—or that buckshot “tore through their bodies,” in his more colorful rendering—is evidence that the guards shot directly into the crowd. But the majority itself acknowledges that their injuries were compatible with ricochet from the ceiling. Stern also contends that Barrett “blithely dismiss[es] evidence that ‘the officers lied in their affidavits about the direction of the shots.’” But Barrett’s point is that the inmates “have no evidence that the officers shot into the crowd” and thus can’t defeat summary judgment.

Stern selectively assesses Barrett’s rulings by looking to see who she agreed or disagreed with, but he doesn’t note that the district judge who granted summary judgment in favor of the guards was Amy J. St. Eve. In her long tenure as a district judge, St. Eve earned a reputation as “a middle-of-the-road judge with no bias towards either conservative or liberal judicial philosophies.” That helps explain why home-state Democratic senators Dick Durbin and Tammy Duckworth supported President Trump’s nomination of her to the Seventh Circuit and why the Senate unanimously confirmed her nomination.

Alvarenga-Flores v. Sessions: Stern faults Barrett for her majority decision “permitting the deportation of an immigrant to El Salvador, where he may be tortured and killed by gangs, because of ‘inconsistencies’ in his testimony.” But it was the immigration judge and the Board of Immigration Appeals, not Barrett, who concluded that the immigrant lacked credibility. As Barrett explains, the reviewing court is obligated to provide a “deferential standard of review” under which the immigration judge and the Board need only provide “specific reasons” for his credibility determination. Barrett faults the dissenter (an Obama district-judge appointee sitting by designation) for failing to apply that deferential standard.

Yafai v. Pompeo: Stern objects to Barrett’s ruling “approving the denial of a visa to the Yemeni wife of a U.S. citizen—even though, as the dissent put it, the consular officer may have merely relied on a ‘stereotypical assumption’ that Yeminis [sic] commit crimes.”

But what was at issue in the case was whether the doctrine of consular nonreviewability—that is, the general rule that judges can’t review visa decisions made by consular officials abroad—allowed an exception in this case. As Barrett explains, the Supreme Court has recognized a limited exception when a visa denial implicate a constitutional right of an American citizen. But under that limited exception, the visa denial must be respected if the reason given is “facially legitimate and bona fide.” Here, on the assumption that the exception applied, the challenge failed because the consular officer’s decision was facially legitimate and bona fide. Barrett explains how the dissent’s proposed additional hurdle—proof that the official adequately considered the evidence in the visa application—contradicts Supreme Court precedent.

As Stern points out, the en banc Seventh Circuit denied rehearing of Barrett’s ruling. The vote was 8 to 3 (yes, the same liberal trio of Wood, Hamilton, and Rovner in dissent).

Sims v. Hyatte: Stern asserts that Barrett in dissent “voted to uphold the conviction of Mack Sims, who was found guilty of attempted murder on the basis of eyewitness testimony secretly procured through hypnosis.” (Emphasis added.) As with Schmidt v. Foster, Stern completely obscures that the case involved Sims’s habeas petition.

Thus, while Barrett states that she thinks that “the undisclosed evidence of [the eyewitness’s] hypnosis constitutes a Brady violation”—something Stern doesn’t acknowledge—she determines that “it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise.”

Law & the Courts

This Day in Liberal Judicial Activism—January 14

(Phil Noble/REUTERS)

1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently 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.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds.

Law & the Courts

Pending Supreme Court Abortion Case: Against Aberrational Third-Party Standing

On March 4, the Supreme Court will hear oral argument in June Medical Services v. Gee. In that case, the Court has granted both the petition of abortion providers challenging a Louisiana law on hospital admitting privileges and the state of Louisiana’s cross-petition challenging the proposition that the abortion providers have “third-party standing” to represent their future patients’ interests.

Louisiana and its amici—including the United States—have just filed their briefs in support of Louisiana’s cross-petition on third-party standing and in response to the substantive attacks on the Louisiana law. In this post, I will highlight key arguments against third-party standing. In a second post, I hope to address the substantive defenses of the Louisiana law.

For decades, the federal courts have simply assumed that abortion providers have third-party standing to assert the constitutional rights of their patients. But when abortion providers bring constitutional challenges to health-and-safety regulations that protect abortion patients, there is an inherent conflict of interest between abortion patients and the abortion providers that purport to be acting on their behalf.

All of this is powerfully explained in Louisiana’s excellent brief, which points out that the plaintiffs in this case—an abortion clinic and two doctors—while purporting to represent (undesignated) abortion patients, are challenging a Louisiana law that is “designed to protect those very patients from unscrupulous and incompetent abortion providers”:

Plaintiffs fail to meet the difficult test for “third-party standing” to assert someone else’s rights. There is no reason to believe Plaintiffs’ patients are hindered in challenging the law if they wish to do so; women seeking abortions have litigated their own constitutional challenges many times before. And there is a serious conflict of interest between Plaintiffs—who have a lengthy history of what the Fifth Circuit called “horrifying” health and safety violations—and the patients for whom they purport to speak. Under normal standing rules, Plaintiffs’ attempt to invoke third-party standing must fail as a matter of law.

In its fuller argument, Louisiana argues, first, that third-party standing is properly understood as a component of the federal courts’ limited jurisdiction under Article III of the Constitution, rather than as a matter of “prudential” jurisdiction. (Brief at 26-30.) But, however it is conceived, third-party standing should have the same requirements in abortion cases that it has in other litigation. That means that a party asserting the rights of a third party should have to show both that it has a close relationship with that third party and that the third party is hindered in its ability to protect its own interests. Instead, the lower courts, with little or no analysis, have widely assumed that abortion providers are exempt from the usual limitations on third-party standing. (Pp. 31-35.)

Louisiana addresses in particular the Court’s plurality opinion in Singleton v. Wulff (1976). That case involved limits on Medicaid funding of abortion, so “patients’ and physicians’ interests were apparently aligned.” (That is, patients and physicians shared an interest in having the funding limits removed.) Here, where “abortion providers challenge health protections designed to benefit their patients,” the plurality’s position is readily distinguishable. Plus, the analysis in the Wulff plurality “is inconsistent with modern doctrine” on the close-relationship and hindrance elements. (Pp. 36-38.)

As Louisiana explains, there is no evidence, and no reason to believe, that abortion patients are hindered from challenging the Louisiana law. (Pp. 39-41.) And far from having a close relationship with their patients, the record illustrates that plaintiffs have several conflicts with them: they consistently ignore their patients’ interest in medical safety (pp. 42-44); they sabotage their own hospital-privileges applications (pp. 44-45) and attack state interpretations favorable to privileges approval (pp. 45-46); and they work to prevent investigation and prosecution of lawbreaking that harms abortion patients (pp. 46-47).

Louisiana also argues that the Court should address plaintiffs’ defects in third-party standing, both because objections to such defects can’t be waived or forfeited (pp. 49-51) and because the matter was in any event addressed by the Fifth Circuit (pp. 52-53).

In its amicus brief, the United States argues forcefully that plaintiffs’ challenge should be dismissed for lack of third-party standing. The Solicitor General’s analysis of third-party standing (pp. 5-9) and of plaintiffs’ failure to satisfy it (pp. 10-13) is consistent with Louisiana’s. The Solicitor General also argues that the Court “can and should” reach the third-party standing issue (pp. 13-16), even as its assessment of some of the subsidiary issues on this question differs from Louisiana’s.

An amicus brief filed by the Family Research Council makes another striking argument: It points out that even if the plaintiff abortion providers could somehow satisfy the test for “third-party standing,” there is no cause of action that allows abortion providers to sue state officials who violate the constitutional rights of their patients. The text of 42 U.S.C. § 1983, for example, permits lawsuits only by persons who have suffered a violation of their own federal rights, and it makes no allowance for third-party litigation. (Pp. 8–10). And the text of the Declaratory Judgment Act, 28 U.S.C. § 2201, allows courts to declare the rights only of the “party seeking such declaration,” rather than the rights of individuals not before the Court. (Pp. 10–11). The plaintiff abortion providers cannot identify any federal statute that would allow them to sue on behalf of third parties, so they therefore lack “statutory standing” even if they are able to establish Article III standing and “prudential” standing. As the amicus puts it, “Even when litigants can establish Article III standing, they must also point to a law that gives them the right to sue.” (P. 2 (emphasis in original).)

In sum, these briefs make a powerful case that the abortion providers lack standing coming and going. They cannot satisfy the Court’s test for third-party standing, and even if they could there is no cause of action that would allow them to assert the rights of non-parties to the lawsuit.

Justice O’Connor famously observed in 1986 that “no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” For too long, the federal courts have given abortion providers special dispensations from the basic rules of federal practice. June Medical Services gives the Roberts Court an opportunity to bring an end to that regime.

Law & the Courts

The Case of the Florida Politico and the Praying Juror

In May 2017, former Florida congresswoman Corrine Brown was tried in federal district court on 24 counts of mail and wire fraud and related charges, in connection with an alleged scheme in which, the government charged, she and co-conspirators raised money for an ostensible scholarship fund and then diverted it to their personal benefit.  After an eight-day trial, the jury was given its instructions by the court; at the end of the second day of its deliberations one juror (Juror 8) relayed her concern to the judge that another juror (Juror 13) had spoken of being guided by a “higher being” in reaching the conclusion that Brown should be acquitted on all counts.

Summoned to meet with the judge and counsel in the case, Juror 13 was questioned about what he had said, and about his ability to participate in deciding the case according to the evidence and testimony.  After two probing—but often somewhat opaque—interviews, the judge decided to excuse the juror (and seat an alternate in his place), ruling that it was “beyond a reasonable doubt” that he could not be trusted to abide by his juror’s oath to do impartial justice according to the evidence.  Brown was acquitted on four counts and convicted on twenty; in December 2017 she was sentenced to five years in prison and required to pay restitution.

Brown’s motion to the district court for a new trial was denied, and last week, on January 9, her conviction was affirmed by a three-judge panel of the Eleventh Circuit: Judges Robin Rosenbaum (an Obama appointee) and Anne Conway (a Bush 41 appointee sitting by designation from the Middle District of Florida) in the majority, and William H. Pryor, Jr. (a Bush 43 appointee) dissenting.

Judge Rosenbaum’s 48-page opinion for the court begins: “If the right to a jury trial means anything, it means a right to a verdict based on the evidence.”  That sentence captures the thrust of her reasoning—that Juror 13 was rightly excused because he would not deliberate on the basis of the evidence, but substituted some form of divine guidance, heedless of the facts and the law of the case.  Judge Conway, a trial judge from the same court in which Brown was convicted, stressed in a two-page concurring opinion that her colleague who presided over the trial had not abused his discretion in removing Juror 13.

Judge Pryor’s 65-page dissent is a tour de force, raising a serious alarm about the lack of understanding and respect that our legal elites have for the widespread religious beliefs of ordinary Americans.  Both Rosenbaum’s and Pryor’s opinions quote extensively from the interviews of Juror 13 by the trial judge, and Pryor is absolutely right: there was nothing in the juror’s answers to the court’s questions that “establish[ed] beyond a reasonable doubt that he was unwilling or unable to perform his duties as a juror.”  Indeed, everything Juror 13 said indicated that he had been praying—altogether permissibly—for the Holy Spirit to aid him in weighing the evidence in Brown’s case, and that he believed the Holy Spirit had answered his prayers.  He manifestly did not say that a divine voice had told him to acquit Brown without regard to the evidence, which would indeed have justified his removal from the jury.  All indications are that Juror 13 was doing his level best to keep his oath as a juror.  As Judge Pryor writes at the outset of his opinion, Juror 13 “was dismissed because he apparently meant” the oath—complete with its invocation “so help me God.”

The panel majority conflates the permissible case of a juror praying for guidance with the impermissible case of a juror ignoring the evidence (for whatever reason, religious or not) because Juror 13 reported that his prayers had been answered.  As Pryor writes, “One persistent confusion that has plagued this appeal is the notion that a juror’s belief that he has received divine guidance reflects a form of improper outside influence.”  The judges in the majority appear not to credit the possibility that a reasonable person could reasonably believe that when he talked to God, he received a reply.  Or perhaps they believe that a reasonable person should refuse to credit any apparent reply that he receives.  Or, worst of all, they might believe that there is something suspect, something not quite right, about praying for wisdom and discernment at all.

As Judge Pryor explains, with citations to religious texts across multiple traditions and to contemporary survey research, countless Americans not only talk to God in prayer, a great many of them believe that God answers them.  Faithful adherents of many religions believe “God is present, at least potentially, in the deepest recesses of the human heart and mind,” and that if they beseech his aid, an inner voice may respond.  “One common goal of prayer is to attune the mind to receive God’s internal guidance,” Pryor adds.

Judge Pryor is worried, not without reason, that “our credentialed judicial elite,” with their extensive secular education and their unrepresentative experiences, too commonly have their minds closed on the subject of religious faith and devotion.  Worse, he is concerned that his court now “countenances discrimination against a substantial segment of the citizens in our Circuit who pray for and believe they receive divine guidance in their daily affairs,” having set a precedent that those who avow a belief in the possibility of prayers answered can and even should be kept from serving on juries.

This important case deserves en banc review in the Eleventh Circuit, and failing that, a grant of certiorari by the Supreme Court. United States v. Brown should be reversed.

Law & the Courts

This Day in Liberal Judicial Activism—January 12

1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”

Law & the Courts

This Day in Liberal Judicial Activism—January 11

Former Chief Justice Earl Warren

1954—President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

2016—When is discrimination on the basis of sex just fine? When it operates against men to produce welcome results. Such is the lesson of the Fourth Circuit’s ruling (in Bauer v. Lynch) against an FBI trainee, Jay J. Bauer, who complained that the FBI discriminated against him on the basis of sex.

Bauer failed the FBI’s physical-fitness test (PFT) when he fell one push-up short of the minimum of 30 required for men. For women, the push-up minimum was only 14 (and the other thresholds were also easier to meet). So Bauer sued on the ground that the differential standards for men and women violated Title VII’s basic ban on discrimination on the basis of sex as well as its specific ban on the use, on the basis of sex, of “different cutoff scores for … employment related tests.” The federal district court granted summary judgment in his favor.

But the Fourth Circuit panel of Obama and Clinton appointees somehow sees things very differently. The Fourth Circuit accepts the Obama administration’s argument that the “PFT’s gender-normed standards actually require the same level of fitness for all Trainees” because “equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Therefore, the PFT standards “do not treat the sexes differently.”

The Left seems to invoke “innate physiological differences” between the sexes only when doing so favors women. The “gender-normed standards,” by their very nature, “treat the sexes differently.” That is their very purpose. Further, they impose a differential “cutoff” on the basis of sex that the text of Title VII specifically forbids.

Law & the Courts

The Long History of Blaine Amendment Bigotry

Children attend a catholic school in Berlin, Germany, January 22, 2016. (Hannibal Hanschke/Reuters)

How many shades of bigoted can the Blaine amendments be? Best known for the anti-Catholic bigotry that animated their passage in the 1800s, the state Blaine amendments — laws designed to prevent the flow of state funds to religious schools — are less known for their racist heritage. The Supreme Court’s decision to examine these laws once more in the case of Espinoza v. Montana Department of Revenue offers the chance to take a closer look at the bias that underwrote these laws — a bias still impacting religious people and institutions and racial minorities today.

The Espinoza case involves a Montana school-choice tax-credit initiative. The state legislature passed a dollar-for-dollar tax credit for contributions to private scholarship programs. But the state’s tax office excluded religious schools from receiving program scholarships. The office and the state’s highest court point to a provision in the Montana constitution that broadly prohibits public funds “for any sectarian purpose or to aid any church, school, academy . . . controlled in whole or in part by any church, sect, or denomination.”

The Montana ban is not unique. Thirty-seven states have some form of “No-Aid” provisions. These state Blaine amendments invidiously exclude religious institutions from accessing generally available public benefits. The secularization of our public square probably leads many Americans to shrug off this kind of blatant religious discrimination. The nefarious history of these laws, however, is worth a second look.

The anti-Catholic origins of Blaine amendments are well-known. The influx of Catholic immigrants in the mid-1800s spawned everything from usage of slurs like “papist” and “mackerel snapper” to legal efforts to marginalize them, most especially their schools. U.S. public schools at the time were overwhelmingly and explicitly Protestant, and they didn’t want Catholic schools cutting into their turf by way of equal access to public funds.

When, in 1875, a federal Blaine amendment failed to pass, some states, including Alabama and Georgia, adopted what became as known as the “Little Blaines” or “State Blaine amendments.” As Reconstruction ended, some Southern states were compelled to provide public funds for the education of the children of former slaves as a condition of re-entering the Union. Blaine amendments provided a means for ensuring that black families would be unable to access public funds to send their children to Christian denominational schools started after the Civil War.

An amicus brief filed in the Espinoza case by the Georgia GOAL Scholarship Program traces how these “No-Aid” provisions were deployed against rural blacks. According to the brief, by virtue of Georgia’s Blaine amendment, state aid could not be used at the independent sectarian schools organized by black churches. Instead, black children were “shunted to grossly inadequate public schools and provided only a rudimentary industrial education to prepare them for lives of menial service rather than lives of learning, critical thinking, development and citizenship.”

Their timing was convenient. In Georgia, for example, lawmakers had long supported private Christian schools with government funds. “Once Georgia lawmakers decided it was necessary to provide a limited K-12 education to black, as well as white, children,” the brief asserts, “they developed a newfound concern over the ‘separation of church and state’. . . . In this way, they avoided any need to fund private K-12 schools created by African American religious leaders.”

Eventually, the Ku Klux Klan realized that Blaine amendments were an effective way to marginalize not just Catholics but also blacks and Jews. According to the U.S. Commission on Civil Rights, the Klan became one the “principle backers” of state Blaines, effectively lobbying nationwide for their passage, from Oregon to Maine.

The racist relics of their efforts persist today, only the minorities impacted have increased. In New Mexico, for example, activists tried to use the state’s Blaine to end a textbook lending program benefiting religious schools that served primarily Hispanic and Native-American students. Those students were seeking better educational alternatives, and the religious schools participating in the public textbook program boasted literacy and graduation rates that were vastly higher than kids in neighboring public schools. These religious schools were acting, as they so often do, as racial equalizers, offering low-cost or free education to minority students who would otherwise be trapped in terrible public schools.

A recent Harvard Kennedy School study shows growing support among black and Hispanic parents for alternatives to public schools — no doubt because, 65 years after Brown v. Board of Education, the Supreme Court’s decision ending the legal segregation of public schools, minority kids continue to get the short end of the stick from public education. Will the state Blaines continue to frustrate the futures of America’s minority children?

Born in anti-Catholic bigotry and nurtured by racial discrimination, Blaine amendments disproportionately hurt minority children. The Court in reviewing Espinoza can finally remedy 150 years of religious and racial discrimination and strengthen the educational opportunities available to our children — regardless of race, color, or creed.

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