Law & the Courts

Supreme Court Halts NYC’s Flight from Review under Second Amendment

Statue at the Supreme Court building in Washington, D.C. (Jonathan Ernst/Reuters)

The first Monday in October is a day that excites Supreme Court followers everywhere. It marks the start of the Supreme Court’s new term. The first Monday in October this year, however, was also a day that excited Second Amendment advocates and supporters.

On the Supreme Court’s first official day of its 2019–2020 term, the Court denied New York City’s Suggestion of Mootness in the case N.Y. State Rifle & Pistol Association v. City of New York. In so doing, the Court guaranteed that this case will proceed to oral argument in December of this year.

This case arose as a result of NYC’s unconstitutional ban on transporting a licensed handgun outside city limits. For the past six years, NYC has vehemently defended its handgun transportation ban, but only at the last minute sought to avoid Supreme Court review when city officials realized the odds of success weren’t in their favor.

In a clear attempt to evade the Court’s review, New York City officials amended the underlying regulation. After amending the regulation, New York contended that the case was now moot, meaning that Petitioners have already received the relief they sought. Essentially, in New York’s eyes Petitioners already won, so they are arguing that the Court need not weigh in.

The Supreme Court saw directly through this ploy. After the Suggestion of Mootness was distributed to the justices on October 1, they had their first session on October 7 and immediately denied the Suggestion.

But we’re not out of the woods yet.

In denying the Suggestion, the Court informed the parties that the question of mootness “will be subject to further consideration at oral argument, and the parties should be prepared to discuss it.” In other words, the Court may still deem the case moot, and not make a binding decision about the Second Amendment or the other constitutional claims.

But the parties will have their day before the Supreme Court — and that is the key. This also means that the Second Amendment will have its day in court for the first time in almost ten years.

Law & the Courts

Justices to Decide Whether States Can Protect Women from Dangerous Abortionists

People line up outside the Supreme Court as it resumes oral arguments at the start of its new term in Washington, D.C., October 7, 2019. (Mary F. Calvert/Reuters)

The U.S. Supreme Court announced on Friday that it will hear a petition filed by June Medical Services, a Louisiana abortion business, and the cross-petition filed by the State of Louisiana. Apart from a summary decision the Court issued without argument this year upholding Indiana’s law requiring that human fetal remains be treated humanely, the Louisiana case provides the Court with the first opportunity to speak to the abortion issue since Whole Woman’s Health v. Hellerstedt three years ago, and potentially even to address the continued viability of the constitutional right to abortion developed by Roe v. Wade (1973) and affirmed in Planned Parenthood v. Casey (1992).

June Medical’s petition seeks review of the constitutionality of a Louisiana law requiring all abortion doctors to be able to smoothly transfer women from the abortion facility to a nearby emergency room within 30 miles when complications arise. While the U.S. Supreme Court held a similar Texas provision unconstitutional in Hellerstedt in 2016, the Court did not rule on the overall validity of such provisions. Louisiana now argues that since its emergency-transfer law would leave abortion facilities open in both population centers in the state, it does not create an “undue burden” on women considering abortion in Louisiana in violation of Casey.

Louisiana’s cross-petition argues that the abortion business, June Medical, should not have the right to sue in court on behalf of women seeking abortion, since the law it challenges is designed to protect women from shoddy and substandard abortion practices. Americans United for Life filed an amicus curiae brief in support of Louisiana’s cross-petition, detailing numerous horrific violations of basic health-and-safety standards by abortion businesses in the state. Louisiana’s long and sordid history of dirty and dangerous abortion clinics being shuttered one by one in order to protect women from fly-by-night abortionists should tell the Court all it needs to know, both about the legal benefits of this law and the dubious right of abortionists to sue to overturn laws designed to protect their own patients.

The last time the Court heard an abortion case, it was in the jurisprudential netherworld between the death of Justice Antonin Scalia and the appointment of Justice Neil Gorsuch. Now, of course, another committed textualist, Brett Kavanaugh, has joined the High Court’s bench. Hellerstedt invalidated portions of Texas’s HB 2, including an admitting-privileges requirement similar to Louisiana’s, mandating that abortion practitioners have the ability to admit patients to a hospital within 30 miles of the abortion facility in emergency cases. The Supreme Court invalidated the measure in a 5-3 vote, calling it an “undue burden” on abortion access, with Justice Stephen Breyer writing for the majority. The Texas law “provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so,” Breyer maintained.

Hellerstedt was a “high water mark” for legalized abortion in America, a constitutional “test” that invited any of the hundreds of active federal judges to declare that the “burdens” on abortion access imposed by a given abortion regulation outweigh its benefit. Abortion advocates such as Planned Parenthood and the Center for Reproductive Rights have taken Hellerstedt and used it like a sledgehammer to invalidate laws in dozens of new cases around the country, even laws that previously had been held constitutional, such as parental-notice laws, outpatient surgical regulations, and even prohibitions on taxpayer funding of elective abortion.

Bravo for Louisiana, which has not taken its ball and gone home after the Hellerstedt decision but has continued to litigate its emergency-transfer law after (and some would say in spite of) Hellerstedt. (Alabama and Wisconsin threw in the towel on defending theirs.) A full bench trial in 2015 (full disclosure: Steven Aden was a member of the trial team for Louisiana), followed by re-briefing after Hellerstedt, resulted in a well-documented record for the Court to consider.

Americans United for Life is confident that the justices will vote to uphold Louisiana’s common-sense safety measure and allow Louisiana to protect women from substandard abortion doctors. Here’s hoping the Court also will take the opportunity to revisit Hellerstedt’s “thumb-to-the-wind” test and clarify that state laws may not be struck down simply because a federal court finds them to be marginally burdensome for abortion access. Hellerstedt has prolonged and exacerbated national confusion over what kinds of health-and-safety laws are permissible. It’s time to get the Supreme Court out of the business of overseeing the “national abortion control board” and to restore this sensitive and politically polarizing issue to the states and the people — where it has always belonged.


List of Demand Justice Radicals Ignored at Debate

From left: Sen. Bernie Sanders, former Vice President Joe Biden, and Sen. Elizabeth Warren applaud during the Democratic presidential candidates debate in Westerville, Ohio, October 15, 2019. (Shannon Stapleton/Reuters)

Yesterday, left-wing dark money group, Demand Justice, finally released its anticipated Supreme Court shortlist. Teeming with progressive activists, the list was trotted out in conjunction with last night’s Democratic presidential debate. After its release, the Washington Post suggested that “Democratic presidential contenders are coming under increased pressure from their base to take a page from Donald Trump’s 2016 playbook and release a shortlist of potential Supreme Court nominees.”

The only problem? Nobody took the bait last night. Not the CNN/New York Times moderators, who didn’t ask a single question about the Demand Justice list. And not the candidates themselves, who when finally given an opportunity to talk about the Supreme Court, did not reference the list.

Are we seeing signs of a divide between the Democratic political establishment and its base? Will the candidates respond to the increasing pressure to take the issue of judges more seriously?

Law & the Courts

This Day in Liberal Judicial Activism—October 16

Justice William O. Douglas

1898—William Orville Douglas, who, alas, will become the longest-serving justice in Supreme Court history, is born in the town of Maine in Minnesota.

Law & the Courts

Demand Justice’s SCOTUS List Is Too Extreme Even for Obama

The U.S. Supreme Court building in Washington, D.C., March 20, 2019. (Leah Millis/Reuters)

This election season has seen an unprecedented repudiation of President Barack Obama and his legacy by far-left Democratic presidential candidates and left-wing interest groups who believe that his radical administration simply was not radical enough. Nowhere is that clearer than in the list of potential Supreme Court candidates released today by left-wing dark money group Demand Justice.

Demand Justice’s list has 32 names on it. Only four of those are Obama-nominated judges. Shockingly, only eight have any judicial experience at all! While President Trump’s list of Supreme Court nominees currently includes 24 individuals, of whom 23 are experienced federal or state judges, the extremists at Demand Justice have clearly taken a different tack. Their list — which they are lobbying Democratic candidates to adopt — is wholly consumed by far-left activism and identity politics.

They see the courts as their ticket to implementing their radical policy agenda, which includes gutting the First and Second Amendments, establishing a right to illegal immigration and abortion on demand straight through birth, and destroying our economy by imposing burdensome regulations on everyone from Main Street to Wall Street.

And the newly published list neatly lines up with their radical policy agenda. For every specific policy goal that the extreme left wants to implement, Demand Justice has provided a name — or two or three — of an ultra-liberal lawyer who has made that cause a focus of his or her activism.

For example, to implement their abortion on demand agenda, they have included Brigitte Amiri, deputy director of the ACLU Reproductive Freedom Project, and Xavier Becerra, attorney general of California. When he was a member of the House of Representatives, Becerra in 2003 voted no on the bill banning partial-birth abortions that ultimately was signed into law. NYU Law professor Melissa Murray is also on the list, a self-proclaimed expert on “reproductive justice” issues who also testified against Brett Kavanaugh at his Senate confirmation hearing.

The Demand Justice list includes several individuals, such as Nina Perales and Thomas Saenz of the Mexican American Legal Defense and Educational Fund, who have fought against legislation aimed at discouraging illegal immigration and sanctuary cities. Vanita Gupta, president of the Leadership Conference on Civil and Human Rights, advocated vigorously against the Trump administration’s executive order that would have required a question about citizenship on the 2020 census. Gupta argued that inclusion of a citizenship question would “weaponize” the census. Dale Ho, director of the ACLU Voting Rights Project, was lead counsel in Department of Commerce v. New York, the Supreme Court case about the inclusion of the citizenship question on the census.

There also quite a few individuals on the list who have dedicated their careers to defending unions, including Nicole Berner, general counsel for the Service Employees International Union; and professor Sharon Block, executive director of the labor and worklife program at Harvard Law School and a former member of the National Labor Relations Board during the Obama administration.

Also on the list is Deepak Gupta, a former senior attorney for Elizabeth Warren’s Consumer Financial Protection Bureau, which has significantly increased the regulatory burden on everyday consumers since its inception nearly a decade ago.

And don’t forget about the far left’s desire to gut our criminal laws. Bryan Stevenson is the founder and executive director of the Equal Justice Initiative, which is committed to “to ending mass incarceration and excessive punishment in the United States.” James Forman Jr. is a Yale Law professor whose research is dedicated to this same mission.

Of course, in order to implement a policy agenda through the courts, you need judges who subscribe to an interpretive theory of the Constitution that can easily locate new rights. Demand Justice has that covered too. They’ve included names like Goodwin Liu and Pamela Karlan (former and current law professors), who disavow Originalism and textualism. Liu once said in an American Constitution Society podcast: “the Constitution should be interpreted in ways that adapt its principles and its text to the challenges and conditions of our society in every succeeding generation.” Likewise Karlan has written: “Fidelity to the Constitution requires judges to ask not how its general principles would have been applied in 1789 or 1868, but rather how those principles should be applied today in order to preserve their power and meaning in light of the concerns, conditions, and evolving norms of our society.” Another extremist on the list, Michelle Alexander, is more forthright in articulating the left’s belief that its hope lies outside the democratic process: “I no longer believe we can ‘win’ justice simply by filing lawsuits, flexing our political muscles or boosting voter turnout.” This is who Demand Justice wants to put on the Supreme Court.

This post only begins to scratch the surface on the Demand Justice list, and I will be looking at the proposed individuals in further depth in the weeks and months to come. But make no mistake, these are the kinds of judges that Demand Justice and others on the extreme left want, not just on the Supreme Court, but also on the lower federal courts. These individuals are far-left ideologues who are out of touch with the mainstream, much like the nominees who will be taking the stage tonight.  (If you have any doubt about that, check out footage of Beto O’Rourke last week claiming that colleges, churches, and charities should be stripped of their tax-exempt status).

I do agree with Demand Justice and Brian Fallon about one thing, however: The presidential candidates should be asked whom they would nominate to the Supreme Court. #ReleaseTheList

Law & the Courts

This Day in Liberal Judicial Activism—October 15

Justice William Brennan in 1972 (Library of Congress)

1956—So much for basing Supreme Court selections on short-term political calculations.

Informed by his campaign advisers that appointing a Catholic Democrat from the Northeast to the Supreme Court would attract critical voters in the upcoming presidential election, President Eisenhower recess-appoints New Jersey supreme court justice William J. Brennan, Jr. to the vacancy resulting from Sherman Minton’s resignation.

That decision appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57% to 42% in the popular vote and 457 to 73 in the electoral college. And, more than any other justice in history, Brennan deforms the Supreme Court’s understanding of the Constitution during his 34-year tenure.

2014—By a vote of 9 to 2, a limited en banc panel of the Ninth Circuit rules (in Lopez-Valenzuela v. Arpaio) that an Arizona law that bars pretrial release of an illegal alien charged with a serious felony offense violates substantive due process.

Dissenting months later from the Supreme Court’s refusal to review the ruling, Justice Thomas, joined by Justice Scalia, will lament that the Court fails to exercise its certiorari discretion “with a strong dose of respect for state laws” and that “indifference to cases such as this one will only embolden the lower courts to reject state laws on questionable constitutional grounds.”

Law & the Courts

This Day in Liberal Judicial Activism—October 14

(Photo Illustration: NRO)

1983—When a state carries out capital punishment by lethal injection, must the drugs used have been deemed “safe and effective” for that use by the Food and Drug Administration? Writing for the majority on a divided D.C. Circuit panel (in Chaney v. Heckler), Judge J. Skelly Wright rules that the FDA arbitrarily and capriciously refused to exercise its regulatory jurisdiction over state-sanctioned use of lethal injections.

In dissent, then-Judge Scalia argues that Wright “converts a law designed to protect consumers against drugs that are unsafe or ineffective for their represented use into a law not only permitting but mandating federal supervision of the manner of state executions.” In applying the principle that agency non-enforcement decisions are presumptively non-reviewable, Scalia lambastes as the “height of irrationality” Wright’s “major reliance on what [Wright] calls the FDA’s ‘Policy Statement’”—a statement that in fact “is not an agency rule, and is indeed not even an authoritative policy statement,” but was instead “part of the policy justification set forth in a Notice of Proposed Rulemaking, with respect to a proposal that was never adopted.”

On review (in Heckler v. Chaney), the Supreme Court unanimously reverses Wright’s holding and rules that the FDA’s decision not to institute enforcement proceedings was not judicially reviewable. Even Justice Brennan joins Justice Rehnquist’s opinion for the Court, and Justice Marshall separately concurs in the judgment.

Law & the Courts

This Day in Liberal Judicial Activism—October 12

1985—In a speech at Georgetown law school, Justice William J. Brennan Jr. attempts to defend his judicial career of misinterpreting the Constitution to entrench liberal policy preferences. Brennan states that the “encounter with the constitutional text has been, in many senses, my life’s work,” and he speaks also of his 29 years of “wrestl[ing] with the Constitution,” but his speech illustrates how Brennan’s “encounter” with the Constitution would better be described as his mugging of it.

Brennan purports to disclaim the view that justices are “platonic guardians appointed to wield authority according to their personal moral predilections.” Rather, he claims:

When Justices interpret the Constitution they speak for their community, not for themselves alone. The act of interpretation must be undertaken with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.

But the “community” Brennan imagines is neither the community of citizens who adopted the constitutional provision nor the contemporary community of citizens.

Indeed, Brennan shows how utterly illusory are the supposed “constraints” on his own approach to constitutional “interpretation” as he restates his position that “capital punishment is under all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments.” That position is incompatible with the original meaning of those constitutional provisions. Further, as Brennan acknowledges, “it would seem [that] a majority of my fellow countrymen [do] not subscribe” to that interpretation. So much for Brennan’s phony claim of undertaking the “act of interpretation … with full consciousness that it is, in a very real sense, the community’s interpretation that is sought.”

Law & the Courts

D.C. Circuit Ruling on Subpoena of Trump Financial Records

By a 2-1 vote, a D.C. Circuit panel ruled today (in Trump v. Mazars USA) that the House Committee on Oversight Reform had authority to issue a subpoena to an accounting firm for records related to work it did for Donald Trump both before and after he became president. Judge Tatel, joined by Judge Millett, wrote the 66-page majority opinion. Judge Rao penned a 68-page dissent.

I have not been able to sort through the competing arguments to assess who has the stronger position. Many other folks, however, were able to launch vehement attacks against Judge Rao within minutes of the time the opinion was issued. None of the criticisms I saw provided any evidence that the attackers had actually read Rao’s dissent. So I figure that it would be useful to present a summary of her major arguments:

1. The House has a broad power to investigate for legislative purposes and a distinct and limited judicial power to investigate for purposes of impeachment. “The text and structure of the Constitution, its original meaning, and longstanding practice demonstrate that Congress’s legislative and judicial powers are distinct and exercised through separate processes, for different purposes, and with entirely different protections for individuals targeted for investigation.” (Dissent at 3.) The power to investigate for legislative purposes cannot be used to circumvent the power to investigate for purposes of impeachment.

“The Founders treated impeachable offenses as wholly distinct from the subjects of investigation for legislative purposes, such as maladministration.” “[I]mpeachment addresses a public official’s wrongdoing— treason, bribery, and high crimes or misdemeanors—while problems of general maladministration are left to the political process.” “In addition, impeachment by the House and trial by the Senate were understood to include constitutional rights normally afforded to the accused in a criminal trial.” (15-16.)

“With respect to Congress’s investigative powers, the original meaning and historical practice align—all three branches have consistently distinguished between investigations for legislative purposes and investigations targeting wrongdoing by an impeachable official. Moreover, the historical evidence demonstrates that Congress often begins an investigation into the executive branch with general questions properly pertaining to legislation; however, if an inquiry turns to suspicions of criminality, Congress moves that part of the investigation into impeachment or ends the inquiry into the impeachable official. Thus, even a valid legislative purpose has never been thought to justify probing specific accusations of wrongdoing by impeachable officials.” (19.)

See discussion of Founding Era practice (20-23); Jacksonian Era and later 19th-century practice (23-30); and 20th-century and modern practice (30-36).

2. The “key determination is whether [the Committee’s] investigation targets allegations Congress might treat as ‘high Crimes’ or ‘Misdemeanors.’” The Committee has consistently stated that its purpose is to investigate “illegal conduct” of the president. The fact that the Committee has also stated an interest in remedial legislation “cannot whitewash this subpoena, which—by the Committee’s own description—targets allegations of illegal conduct by the President.” “The most important question is not whether Congress has put forth some legitimate legislative purpose, but rather whether Congress is investigating suspicions of criminality or allegations that the President violated a law. Such investigations may be pursued exclusively through impeachment.” “The Supreme Court has consistently maintained that Congress cannot undertake a legislative investigation of an impeachable official if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.’” (6-8; see also 37-51.)

3. “By collapsing the distinction between Congress’s legislative and impeachment powers, the majority’s decision has serious consequences for the separation of powers. The decision today expands the legislative power beyond constitutional boundaries, calling into question our precedents for reviewing the scope of congressional investigations; interpreting the legislative power of Congress to subsume the impeachment power; and permitting serious encroachments on the executive branch.” (51; see 51-68.)

Judge Tatel responds most directly to Judge Rao on pages 45 to 49 of his majority opinion.

Law & the Courts

This Day in Liberal Judicial Activism—October 11

Florida Supreme Court Building (Wikimedia Commons)

1990—More from Florida justices Rosemary Barkett and Gerald Kogan. In Stall v. State, the Florida supreme court adheres to its previous precedents holding that Florida’s statute criminalizing obscenity is constitutional. In a brief dissent, Barkett, joined by Kogan, asserts: “A basic legal problem with the criminalization of obscenity is that it cannot be defined.… Thus, this crime, unlike all other crimes, depends, not on an objective definition obvious to all, but on the subjective definition, first, of those who happen to be enforcing the law at the time, and, second, of the particular jury or judges reviewing the case.” Enforcement of obscenity laws, she contends, “runs counter to every principle of notice and due process in our society.”

Barkett does not even cite, much less discuss, U.S. Supreme Court precedent upholding obscenity laws against her objections. Nor does she recognize that there are any number of criminal laws—criminal negligence, child neglect, the distinction between justifiable self-defense and unjustified homicide—whose definition or application is not more objectively “obvious to all” than for obscenity.

In a separate and lengthy dissent, Kogan, joined by Barkett, argues that a state constitutional provision setting forth the right of every person “to be let alone and free from government intrusion into his private life” “necessarily must include a right of discreet access to [obscene] entertainment, writings, and other such material if the state cannot show that those materials are actually harmful to specific persons or that they intrude upon the rights of others.”

Law & the Courts

This Day in Liberal Judicial Activism—October 10

(Tyrone Siu/REUTERS)

2008—By a vote of 4 to 3—with the decisive vote provided by a lower-court judge who, as a result of two curious recusals, was sitting in for the chief justice—the Connecticut supreme court, in Kerrigan v. Commissioner of Public Health, invents a right to same-sex marriage under the state constitution.

Law & the Courts

Yale Law School Establishes Religious-Liberty Clinic

I’m very pleased to learn that Yale law school has established a for-course-credit Free Exercise Clinic, under the direction of Professor Kate Stith. Michael Helfand, a visiting professor from Pepperdine law school, will also lead the course.

From Yale’s course catalog for the spring 2020 semester:

Free Exercise Clinic: Seminar (30143) and Fieldwork(30144). 2 units for seminar, 1 unit for fieldwork (3 units total). The seminar and the fieldwork must be taken simultaneously. The freedom to practice one’s religion has been a cherished and controverted right since the Founding. Indeed, religious beliefs matter enormously to their adherents, yet are often invisible or unintelligible to others. This duality is especially salient today, in our religiously diverse society. Although the federal constitution and many other laws offer protection for individuals and groups of faith, majoritarian policymakers and government actors sometimes fail to consider – and occasionally target – religious minorities and their interests. This clinic will provide an opportunity for students to defend the free exercise of politically vulnerable religious minorities. Students will learn about and advocate for the rights of inmates seeking religious accommodations, houses of worship challenging zoning decisions, and employees facing discrimination at work.

Together, the seminar and fieldwork will provide students with robust training and experience in appellate free exercise litigation. In the seminar, students will study the legal, political and social landscape of the free exercise claims available to religious plaintiffs. Professor Stith and Visiting Professor Michael Helfand will teach the theory and development of free exercise doctrine using Michael W. McConnell, Thomas C. Berg and Christopher C. Lund, Religion and the Constitution (Wolters Kluwer, 4th ed. 2016) and additional materials. In addition, the classes will discuss litigation strategies; practical applications of the law to student fieldwork will receive particular attention.

In the fieldwork portion of the course, students will work under the supervision of experienced litigators at a top law firm, Sidley Austin LLP. It is expected that much student work product will be amicus briefs. Alongside dedicated teams of law-firm associates, students will represent clients under the Free Exercise Clause of the First Amendment, the Religious Freedom Restoration Act, the Religious Land Use and Institutionalized Persons Act, and Title VII of the Civil Rights Act of 1964, as well as analogous state constitutional provisions and laws.

Law & the Courts

Mau-Mauing Justice Gorsuch on Title VII and Sex Discrimination

The oral arguments yesterday (transcripts here and here) by the employees’ lawyers in the Title VII SOGI cases and much of the commentary on the oral arguments stuck rather closely to the script set forth in the briefing:

1. Insist that a deeply defective claim about the meaning of Title VII—namely, that any employment practice that can be applied only by identifying an employee’s sex amount to discrimination because of sex—is a sound textualist argument.

2. Fail to reconcile that claim with the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes—all of which require taking account of an employee’s sex.

3. Accuse any conservative justice who doesn’t accept that defective claim of abandoning textualism and of being unprincipled.

Justice Gorsuch, whose questioning of both sides was very evenhanded, seems to be a particular target of the browbeating. I doubt very much that he’ll be influenced by it, but we’ll see.

Gorsuch asked some questions that explored whether sex was one of “two causal factors at work” when an employer discriminates on the basis of sexual orientation or transgender status. One answer to that (as another line of Gorsuch’s questioning recognized) is that, as the restroom and other examples illustrate, showing that an employment practice takes account of an employee’s sex is not enough to establish a violation of Title VII. A second answer, as Solicitor General Noel Francisco and others explained, is that the employer who, say, bars a male employee who identifies as female from using the women’s facilities is treating that male employee “the same as a similarly situated woman”—that is, a woman who is barred from using the men’s facilities—and is thus clearly not discriminating on the basis of sex.

Once the causal question is framed correctly—as a question about why the employer treats a man who identifies as a woman differently from other men—it’s clear that sex is not one factor among others. It simply plays no role at all.

The coherent textualist argument that defeats the Title VII claims is that Title VII’s ban on discrimination because of sex does not impose a regime of asexuality or androgyny. Rather, to borrow the words of Justice Ginsburg that the Court unanimously embraced in Oncale v. Sundowner Offshore Services (1998), the “critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”

Law & the Courts

This Day in Liberal Judicial Activism—October 9

Judge Rosemary Barkett.

1986—In Melbourne, Florida, George Porter, Jr., culminates his violent relationship with Evelyn Williams by invading her home at 5:30 in the morning and shooting her to death. Porter had been the live-in lover of Williams from 1985 until July 1986, when, after several violent incidents, he threatened to kill her and then left town. When he returned a couple months later, Williams had begun a new relationship. Porter told Williams’s mother that he had a gift for Williams, and he persisted in trying to see her. He tried to borrow, and then evidently stole, a gun from a friend and, a few days before murdering Williams, told another friend, “you’ll read it in the paper.” On October 8, he visited Williams, who then called the police in fear.

If Porter’s murder of Williams—well after their relationship had ended and when they were no longer sharing a household—doesn’t sound like a “lovers’ quarrel or domestic dispute” to you, then you’re not Rosemary Barkett. (Congratulations, by the way.) Dissenting from the Florida supreme court’s affirmance of the death sentence that Porter received, Barkett, joined by Justice Gerald Kogan, complains: “In almost every other case where a death sentence arose from a lovers’ quarrel or domestic dispute, this Court has found cause to reverse the death sentence, regardless of the number of aggravating circumstances found, the brutality involved, the level of premeditation, or the jury recommendation.”

Law & the Courts

This Day in Liberal Judicial Activism—October 8

(Lucas Jackson/Reuters)

2006New York Times public editor Byron Calame criticizes Supreme Court reporter Linda Greenhouse for violating the paper’s ethical guidelines by asserting, in a speech at Radcliffe, that the government “had turned its energy and attention away from upholding the rule of law and toward creating law-free zones at Guantánamo Bay, Abu Ghraib, Haditha, other places around the world, the U.S. Congress, whatever. And let’s not forget the sustained assault on women’s reproductive freedom and the hijacking of public policy by religious fundamentalism.” According to Calame, Greenhouse defends these remarks as “‘statements of fact’—not opinion—that would be allowed to appear in a Times news article.” Calame forcefully condemns Greenhouse’s ethical violation:

“[A]s the influential Supreme Court reporter for The Times, a beat that touches nearly all areas of public policy, Ms. Greenhouse has an overriding obligation to avoid publicly expressing these kinds of personal opinions…. Bemoaning the difficulties journalists face in being citizens strikes an old-fashioned editor like me as whining….  Keeping personal opinions out of the public realm is simply one of the obligations for those who remain committed to the importance of impartial news coverage.”

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