Law & the Courts

This Day in Liberal Judicial Activism—February 16

Then-Senate majority leader Harry Reid (right) with Chuck Schumer in 2013. (Reuters photo: Jonathan Ernst)

2016—Harry Reid, D-Fantasyland. In an op-ed in the Washington Post opposing the Senate Republican strategy to keep open through the November 2016 elections the Supreme Court vacancy resulting from Justice Scalia’s death, Democratic leader Reid claims that Senate Democrats “always guaranteed Supreme Court nominees a fair hearing and a floor vote.”

Yes, believe it or not, that’s the same Reid who, as Senate minority leader in 2006, voted to support an attempt to filibuster the nomination of Justice Alito (and thus prevent a floor vote). That filibuster attempt won the support of 25 Democratic senators (a majority of the caucus), including Barack Obama, Joe Biden, Hillary Clinton, Patrick Leahy, Chuck Schumer, and Dick Durbin.

Law & the Courts

This Day in Liberal Judicial Activism—February 15

A group of firefighters look on as a house burns in the wind-driven Kincade Fire in Healdsburg, Calif., October 27, 2019. (Stephen Lam/Reuters)

2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.

As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

2017—In a majority opinion written by Judge Karen Nelson Moore and joined by Judge Jane Stranch, a divided Sixth Circuit panel rules (in Bormuth v. County of Jackson) that a county board of commissioners’ practice of beginning its monthly meetings with a prayer violates the Establishment Clause. In dissent, Judge Richard Griffin objects that the practice of legislative prayer dates back to the founding of the Republic and that the Supreme Court has twice held that it does not violate the Establishment Clause.

Five months later, the en banc Sixth Circuit will reject the panel ruling by a vote of 9 to 6.

2019—There is evidently no truth that liberal judges won’t disparage as a negative stereotype when it suits their cause.

In Free the Nipple-Fort Collins v. City of Fort Collins, a divided panel of the Tenth Circuit enjoins, on equal-protection grounds, a city ordinance that prohibits women from baring their breasts in public (other than for purposes of breastfeeding) but imposes no restrictions on male toplessness. In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips heroically combats the “stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” (He’s quoting with approval the district court.)

In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.

Law & the Courts

This Day in Liberal Judicial Activism—February 14

(Photo: Travelling-light/Dreamstime)

1972—By a vote of 6 to 1, the Florida supreme court rules (in State v. Barquet) that the state’s statutory prohibition of abortion violates the federal and state constitutions because its exception for abortions “necessary to preserve the life of [the] mother” is supposedly “incapable of certain interpretation.”

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” only in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

Law & the Courts

Former Reinhardt Clerk Alleges Pervasive Sexual Harassment and Misconduct

In testimony offered today before a House subcommittee exploring how to protect federal judicial employees from sexual harassment, Olivia Warren, who was a law clerk for Ninth Circuit judge Stephen Reinhardt during the last year of his life, provides an extraordinary account of Reinhardt’s misbehavior. Some excerpts:

I quickly learned how often the judge commented in detail on the appearance of women. During my first few weeks at the clerkship, Judge Reinhardt’s chambers was in the midst of hiring new clerks for future terms. The Judge brought to my office photos that had been printed from the social media accounts of two female applicants who were scheduled to come to chambers for interviews. Judge Reinhardt instructed me to look at the photos and asked me to assess which candidate was more attractive and which candidate had nicer or longer legs. He then asked me which would add more “value” to chambers based on the photos.

Early in my clerkship, I also learned about a shelf in the judge’s office where he kept pictures of some of his female “pretty” clerks, many of which included Judge Reinhardt in the photo as well. Judge Reinhardt made it clear that photographs of male law clerks would not be placed on the shelf and that the shelf was special. Judge Reinhardt discussed the appearance of women directly, but he also had a regular euphemism: he used “short” and “tall” as code for “unattractive” and “attractive,” respectively, when referring to different women—including describing women of the same height, standing next to one another, as short and tall. Sometimes these comments were used to describe people outside of chambers, and sometimes they were used to describe us, his current and former law clerks. Judge Reinhardt only contemplated the attractiveness of women through the male gaze, and at times he used homophobic slurs: for example, a gay female clerk was repeatedly referred to by the judge as a “dykester,” which he found funny.

All of that provides the context within which I experienced direct sexual harassment. Judge Reinhardt routinely and frequently made disparaging statements about my physical appearance, my views about feminism and women’s rights, and my relationship with my husband (including our sexual relationship). Often, these remarks included expressing surprise that I even had a husband because I was not a woman who any man would be attracted to. In that vein, Judge Reinhardt often speculated that my husband must be a “wimp,” or possibly gay. Judge Reinhardt would use both words and gestures to suggest that my “wimp” husband must either lack a penis, or not be able to get an erection in my presence. He implied that my marriage had not been consummated. I was subjected on a weekly, and sometimes daily, basis to these types of comments about my husband, our relationship, and my being a woman who no man would marry—which he attributed both to my being a feminist and to my physical appearance, including my “short” stature. Judge Reinhardt made these comments to me when we were alone, and also in front of other members of chambers at times.

The atmosphere in chambers worsened in late 2017 with the start of the Me Too movement, which became Judge Reinhardt’s favorite topic of conversation. He frequently discussed and always cast doubt upon credible allegations of sexual harassment. The doubts he expressed were sometimes based on his assessment of the attractiveness of the accuser, and sometimes based on his general incredulity that men could be harassing women. For example, Judge Reinhardt told me that the allegations of sexual harassment that came out against people like Louis CK and Harvey Weinstein were made by women who had initially “wanted it,” and then changed their minds. Regarding Louis CK, he repeatedly asked me to explain to him why a man would want to show a woman his penis or masturbate in front of her. When I could not satisfy these kinds of questions about the alleged choices of men, Judge Reinhardt often responded by telling me that women were liars who could not be trusted. Sometimes, he read me emails that he exchanged with his friends about the Me Too movement that cast doubt on women raising sexual harassment and misconduct allegations. When I engaged in these discussions with him and would try to explain that sexual harassment was indeed a pervasive problem, he regularly replied with the same playbook I described above—that I did not understand sexual harassment because I was not attractive, that I did not understand men because I was a feminist, and that my husband was not a real man.

Another turning point in chambers occurred on December 8, 2017, when the Washington Post publicly reported on allegations about Judge Alex Kozinski’s conduct. I was alarmed by Judge Reinhardt’s fury at these allegations against his close friend. I was also concerned that this would prompt other people to raise similar complaints about Judge Reinhardt, even while I was still a clerk in chambers. Shortly after the first media report, the judge again told me that women were not to be trusted and that he did not ever want to be alone in a room with a female law clerk again; he suggested that he would not hire any more female clerks or other female employees for these reasons. After he had made that statement, he would sometimes suggest when he and I were alone that he needed protection because I might sexually assault him.

There is, of course, no reason to presume that the awful problem of sexual harassment by judges predominates on one or the other side of the ideological aisle. I also have no idea how prevalent it is; by calling it awful, I mean simply that it is awful whenever it occurs.

Law & the Courts

This Day in Liberal Judicial Activism—February 13

(Alan Crosthwaite/Dreamstime)

2007—A Ninth Circuit panel rules (in Phillips v. Hust) that a prison librarian violated the constitutional rights of a prisoner, and is liable for damages to him, for failing to provide him timely access to a comb-binding machine that he wanted to use to bind his certiorari petition to the Supreme Court. Never mind, as Judge Diarmuid F. O’Scannlain points out in dissent, that Supreme Court rules for ordinary letter-size submissions require stapling or binding in the upper left-hand corner (rather than comb-binding along the left margin). As O’Scannlain observes:

Unfortunately, rather than adhering to the clear limits established by Supreme Court precedent, the majority here mandates prison employees to anticipate when the denial of unnecessary services will so fluster an inmate that his filing, though in no way actually frustrated, might be delayed. Such a rule amounts to an unreasonable demand that prison librarians be not only experts on their actual duties, but also clairvoyant.

Ten judges will dissent from the Ninth Circuit’s decision to deny rehearing en banc. Ultimately, after the Supreme Court GVRs (grants review of, vacates the ruling in, and remands) the case, Judge O’Scannlain will write a new panel opinion in 2009 that rules that the prison librarian is entitled to qualified immunity.

Law & the Courts

Ninth Circuit’s Title IX Transgender Ruling Ought to Cut Both Ways

In an opinion rendered today (in Parents for Privacy v. Barr), a Ninth Circuit panel rejected various constitutional and statutory claims that an Oregon public school district violated the rights of students when it allowed other students who identified as transgender to use the bathrooms, locker rooms, and showers that matched their gender identity rather than their biological sex.

I’d like to focus here on the panel’s holding that the school district’s policy didn’t violate Title IX. (Slip op. at 27-33.)

Title IX provides that no person shall be subjected to discrimination “on the basis of sex” in any education program that receives federal funding. The parents and students challenging the school district’s policy contended that it created a sexually harassing environment. But the Ninth Circuit held that “a policy that treats all students equally does not discriminate based on sex in violation of Title IX.” (Slip op. at 9.) In response to the plaintiffs’ charge that (in the panel’s paraphrase) the policy “actually harasses both sexes on the basis of their sex by allowing students assigned the opposite sex at birth to enter privacy facilities,” the panel states:

To the contrary, treating both male and female students the same suggests an absence of gender/sex animus, while Title IX is aimed at addressing discrimination based on sex or gender stereotypes. Numerous courts have ruled that a Title IX sexual harassment hostile environment claim fails where the alleged harassment is inflicted without regard to gender or sex, i.e., where there is no discrimination. [Citations omitted.] We see no reason to arrive at a different conclusion here.

The question in this case was whether a school district may allow transgender students to use the facilities of the opposite sex. In other cases, in challenges brought by transgender students, the question is whether school districts must allow such use. It seems to me that the principles that the panel propounds dictate a “no” answer to that question: A “policy that treats all students equally”—by requiring that they use the facilities that match their biological sex—“does not discriminate based on sex in violation of Title IX.” Such a policy “treat[s] both male and female students the same” and thus “suggests an absence of gender/sex animus, while Title IX is aimed at addressing discrimination based on sex or gender stereotypes.”

I’ll add that I am struck by the panel’s casual embrace of transgender semantics, a semantics that is freighted with ideological weight. To cite just a few examples: The panel speaks of “a transgender person who was assigned the opposite biological sex at birth.” (As noted above, it even uses that bizarre phrasing when it paraphrases plaintiffs’ argument.) It uses male pronouns for a student “who had been born and who remained biologically female”—and who, for all we know, was still a female under Oregon law.* And it uses the word cisgender on multiple occasions—“cisgender boys,” cisgender girls,” “cisgender students.”

The panel’s degraded English is also reflected in its reciting, without comment or correction, the school district’s policy of allowing a female student who identifies as male to “use any of the bathrooms in the building to which he identifies sexually.” Identifying sexually to a bathroom?!? What sort of weird language is that?

* In his recent opinion objecting to the denial of rehearing en banc in Edmo v. Corizon, Inc., conservative Ninth Circuit judge Diarmuid O’Scannlain explained that he was using female pronouns for a prisoner who “was born a male” because the prisoner had “legally changed the sex listed on her birth certificate to female.”

Law & the Courts

This Day in Liberal Judicial Activism—February 12

Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

2015—Never mind Ruth Bader Ginsburg’s repeated explanation at her confirmation hearing in 1993 that the judicial obligation of impartiality required that she give “no hints, no forecasts, no previews” about how she might “vote on questions the Supreme Court may be called upon to decide.” Never mind, further, that the question of the constitutionality of state laws that define marriage as a male-female union is pending before the Court.

 

Justice Ginsburg, unable or unwilling to contain herself, continues her pattern of openly signaling how she will rule on the issue and how she expects the Court to rule, as she volunteers that she “think[s] it’s doubtful” that a ruling against state marriage laws wouldn’t be accepted by the country.

 

Ginsburg’s boundless “living Constitution” approach to constitutional interpretation takes its cues from what she calls “the climate of the age,” so her thoughts about what liberal inventions the American public will acquiesce in are closely linked to her view of what the Court should impose.

Law & the Courts

EPPC Amicus Brief in Ministerial-Exception Cases

I’m pleased to highlight that the Ethics and Public Policy Center (the think tank I run) has filed an amicus brief in the Supreme Court in support of the two Catholic schools in the pending cases of Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel. EPPC’s brief urges the Supreme Court to adopt procedural protections in support of the First Amendment’s ministerial exception.

My thanks to Matthew T. Nelson and Conor B. Dugan of the law firm of Warner Norcross & Judd in Grand Rapids, Michigan, for their generous and excellent pro bono representation.

Oral argument in the cases will take place on April 1.

Law & the Courts

The Mystery of the Missing Ninth Circuit Judge

One curious development in the Ninth Circuit is that Trump appointee Eric D. Miller has been entirely absent from dissents from denial of rehearing en banc.

Over Miller’s eleven months on the court, there have been (according to my review of some quick research by an assistant) a dozen orders, including yesterday’s in Edmo v. Corizon, Inc., in which Republican-appointed judges have dissented from the court’s refusal to rehear a case en banc. Some of those orders—e.g., in Biel v. St. James School, Dai v. Barr, and Kayer v. Ryan—have drawn dissents from all or nearly all Republican appointees except Miller. One Democratic appointee even dissented from the order in Kayer.

Unless I’m missing it, Miller has not yet publicly dissented from a denial of rehearing en banc. In the twelve orders during his tenure, Judges Ikuta, Bennett, and Nelson have dissented eight times, and Judge Collins, who joined the court nearly three months after Miller and thus took part in only nine of the twelve orders, has dissented seven times. Even Judge Milan Smith, a George W. Bush appointee widely regarded as a moderate liberal, has dissented five of the twelve times.

What’s going on?

Perhaps Miller has been voting for en banc review in many or most of these cases and has decided, for whatever reason, not to register a public dissent when the en banc call fails.

Perhaps his time and energy have been consumed by the cases to which he has been assigned.

Perhaps he’s decided to be more an observer than a participant in en banc votes during, say, his first year on the court.

Perhaps he doesn’t think that en banc review is worthwhile.

Or perhaps—a much more alarming (and, I would think, implausible) alternative—he’s inclined to believe that the original panels didn’t commit the grievous errors that his conservative colleagues perceive.

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Justice Ginsburg Slays the ERA Zombie

In 1972, when Congress proposed the Equal Rights Amendment to the states for ratification, it specified a seven-year period for ratification. That seven-year period expired on March 22, 1979. As of that date, only 35 states had ratified the ERA (and four or five of those 35 had rescinded their ratifications).

Congress’s authority to impose deadlines on ratification has long been recognized. In its unanimous ruling in Dillon v. Gloss (1921), the Supreme Court held that Congress had the power to include a seven-year period for ratification in the 18th Amendment: “Of the power of Congress, keeping within reasonable limits, to fix a definite period for the ratification we entertain no doubt.” Every amendment but one that Congress has proposed since then has included a seven-year period for ratification. (For the 20th, 21st, and 22nd amendments, that time period was set forth in the text of the amendment; for the 23rd, 24th, 25th, and 26th amendments, as for the ERA, the time limit was in Congress’s proposing clause.)

Despite the fact that the ERA expired more than forty years ago, Democrats in Congress are now pretending that a joint resolution of both Houses of Congress could somehow revive the zombie. (I don’t see how a joint resolution adopted by 2/3 of each House—the threshold needed for Congress to propose an amendment—could perform the miracle; the idea that a majority vote in each House could do so simply adds to the absurdity.) A House floor vote on the joint resolution is scheduled to take place on Thursday. But perhaps it would be better not to go forward with the charade.

In remarks yesterday at Georgetown law school Justice Ruth Bader Ginsburg declared the plain reality that Virginia’s recent purported ratification of the ERA came “long after the deadline passed.” Observing further that “a number of states have withdrawn their ratification,” Ginsburg wondered how those who maintain otherwise could “count a latecomer on the plus side” yet fail to subtract rescinding states. Ginsburg made similar remarks last September, when she noted that any effort to adopt the ERA would require “starting over again.” (I don’t think that Ginsburg should be persisting in her practice of commenting publicly on contested legal and political matters, but at least in this instance her comments are on target.)

On this same question of rescinding states, there appears to be some interesting discord on the Left. A reliable source has forwarded me a February 6 email (highlights in original; most recipients and phone number redacted) that Ellen Nissenbaum, senior vice president for government affairs for the liberal Center on Budget and Policy Priorities, sent to a group of Democratic congressional staffers. In her email, Nissenbaum notes that five states rescinded their ratifications of the ERA, and she complains that “Many of the [sic] those promoting the ERA now choose to ignore those rescissions – and some even go so far as to argue the rescissions don’t count.” (Emphasis in original.)

Nissenbaum is alarmed about ongoing conservative efforts to have a balanced-budget amendment (BBA) proposed by a convention called by 2/3 of the states—the alternative means that Article V of the Constitution provides for proposing amendments. Noting that eight states have rescinded their calls for an Article V convention to propose a BBA, she fears that the position that “rescissions don’t count” “will hand a powerful argument to the right that will be used in court to undercut these 8 BBA rescission [sic] – and we could find ourselves on our way to a new Constitutional Convention.” (Emphasis in original.) She continues:

It’s extremely important that members do not go to the floor to argue that state rescissions of the ERA do not count, because that will be used by the right to argue state rescissions of the BBA do not count.    Ideally, Members would not say that VA’s ratification brings them to 38 states – which implies rescissions don’t count, but that may be hard to stop VA Dems from saying this.  From a legal perspective, it’s most important for Members to just not talk about the rescissions at all on the floor. [Emphasis in original.]

Law & the Courts

Ninth Circuit Denies Rehearing En Banc on Prisoner Sex-Reassignment Order

In August 2019, a Ninth Circuit panel ruled (in Edmo v. Corizon, Inc.) that the Eighth Amendment requires that the state of Idaho provide “gender confirmation surgery”—that’s quite a euphemism—to a “male-to-female transgender prisoner” suffering from gender dysphoria. Over the objections of ten judges (eight in active service and two in senior status), the Ninth Circuit today denied en banc rehearing in the case.

Here are excerpts from Judge Diarmuid O’Scannlain’s opinion (pp. 5-34, some citations and quotation marks omitted), joined by eight other judges:

With its decision today, our court becomes the first federal court of appeals to mandate that a State pay for and provide sex-reassignment surgery to a prisoner under the Eighth Amendment. The three-judge panel’s conclusion— that any alternative course of treatment would be “cruel and unusual punishment”—is as unjustified as it is unprecedented. To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice….

Deliberate indifference is a high legal standard. It is, after all, under governing precedent one form of the “unnecessary and wanton infliction of pain” that is the sine qua non of an Eighth Amendment violation. Simply put, Edmo must prove that Dr. Eliason’s chosen course of treatment was the doing of a criminally reckless—or worse—state of mind….

[T]he panel concludes that the decision to continue hormone treatment and counseling instead of sex-reassignment surgery for Edmo was “medically unacceptable under the circumstances” because, in short, Dr. Eliason failed to “follow” or “reasonably deviate from” the WPATH Standards of Care. Yet such an approach to the Eighth Amendment suffers from three essential errors. First, contrary to the panel’s suggestion, constitutionally acceptable medical care is not defined by the standards of one organization. Second, the panel relies on standards that were promulgated by a controversial self-described advocacy group that dresses ideological commitments as evidence-based conclusions. Third, once the WPATH Standards are put in proper perspective, we are left with a “case of dueling experts,” compelling the conclusion that Dr. Eliason’s treatment choice was indeed medically acceptable….

Even were the panel correct that the only medically acceptable way to approach a gender dysphoric patient’s request for sex-reassignment surgery is to apply the WPATH Standards of Care, we still could not infer a constitutional violation from these facts. As the Supreme Court has explained, the Eighth Amendment simply proscribes categories of punishment, and punishment is “a deliberate act intended to chastise or deter.” “[O]nly the ‘unnecessary and wanton infliction of pain’ implicates the Eighth Amendment.” …

Even in a legal universe in which the WPATH Standards define adequate care, Dr. Eliason’s deviations were not deliberately indifferent. He selected a course of treatment that, in light of the complex of diagnoses, the grave risks, and the rapidly evolving nature of the medical research, was not obviously inadequate….

The panel’s novel approach to Eighth Amendment claims for sex-reassignment surgery conflicts with every other circuit to consider the issue….

We have applied the traditional deliberate-indifference standard to requests for back surgery, kidney transplant, hip replacement, antipsychotic medication, and hernia surgery. Yet suddenly the request for sex-reassignment surgery—and the panel’s closing appeal to what it calls the “increased social awareness” of the needs and wants of transgender citizens—effects a revolution in our law! The temptation to stand at what we are told is society’s next frontier and to invent a constitutional right to state-funded sex-reassignment surgery does not justify the revision of previously universal principles of Eighth Amendment jurisprudence.

Judge Patrick Bumatay issued his own dissent (pp. 36-48), joined in whole by five other active judges and in its Part II by a sixth. In Part I of his dissent, Bumatay explores the history and original understanding of the Eighth Amendment. In Part II, he explain how the panel’s decision departs from the Supreme Court’s precedent.

Law & the Courts

This Day in Liberal Judicial Activism—February 10

(Jonathan Ernst/Reuters)

1947—In Everson v. Board of Education, the Supreme Court misconstrues the Establishment Clause as erecting a “wall of separation” between church and state. As law professor Philip Hamburger demonstrates in his magisterial Separation of Church and State (Harvard University Press, 2002), there is no legitimate basis for reading the Establishment Clause to impose a regime of separation of church and state, much less Thomas Jefferson’s “wall of separation.” The idea of separation was “radically different” from the non-establishment guaranteed by the First Amendment and became popular only “in response to deeply felt fears of ecclesiastical and especially Catholic authority.” Moreover, explains Hamburger, the persisting separation myth has in fact undermined religious liberty.

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This Day in Liberal Judicial Activism—February 9

President Jimmy Carter at the White House in 1977 (LIbrary of Congress)

2009—Three decades later, President Carter’s sorry judicial legacy lives on. A three-judge district court consisting of three Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson—issues a “tentative ruling” that finds that overcrowding in California’s prisons is the “primary cause” of the state’s “inability to provide constitutionally adequate medical care and mental health care to its prisoners” and that would require California’s prisons to reduce their inmate populations by as many as 57,000 prisoners. The trio asserts that the release can “be achieved without an adverse effect on public safety.”

Even California attorney general Jerry Brown, usually an ardent supporter of liberal judicial lawlessness, condemns the ruling as “a blunt instrument that does not recognize the imperatives of public safety, nor the challenges of incarcerating criminals, many of whom are deeply disturbed.”

In May 2011, by a 5-4 vote (in Brown v. Plata), the Supreme Court will affirm the district court’s judgment.

In the aftermath of the Court’s ruling, the district court will repeatedly be forced to extend its deadline for compliance with its ruling. Only in March 2016—nearly five years after the Court’s ruling—will the district court determine that California is in compliance. Even then, the district court will retain control over the matter and require California to submit monthly reports.

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This Day in Liberal Judicial Activism—February 8

Supreme Court justice Brett Kavanaugh (Doug Mills/Pool via Reuters)

2016—By a vote of six to four (in Wesby v. District of Columbia), the D.C. Circuit denies en banc rehearing of a rogue panel decision authored by Judge Cornelia Pillard. As Judge Brett Kavanaugh objects in his lengthy dissent from the denial, the panel ruling subjects two police officers to liability for nearly one million dollars for “arresting for trespassing a group of people who were partying late at night with drugs and strippers in a vacant house that the partiers did not own or rent.” Kavanaugh argues both that the police officers had probable cause to make the arrests and that the panel’s holding that they were not entitled to qualified immunity “contravenes … emphatic Supreme Court directives.”

Nearly two years later, without any dissent, the Supreme Court will embrace Kavanaugh’s positions and reverse the panel ruling.

Law & the Courts

This Day in Liberal Judicial Activism—February 7

Judge Gorsuch at his Senate confirmation hearing, March 21, 2017. (Reuters photo: Jonathan Ernst)

2017—In his desperate effort to obstruct the Supreme Court nomination of Neil Gorsuch, Senate minority leader Chuck Schumer continues to propagate the myth that a 60-vote standard exists for Supreme Court nominees. Never mind that even the Washington Post’s Fact Checker has explained that no such standard exists.

Meanwhile, Democratic senator Jeanne Shaheen declares on the Senate floor that neither she nor any of her fellow Democrats she’s talked to have any intention of filibustering the Gorsuch nomination.

Two months later, Shaheen and 43 of her fellow Democrats will vote to filibuster the Gorsuch nomination. But the Schumer-led gambit will backfire spectacularly, as Senate Republicans, following the precedent Democratic leader Harry Reid set in November 2013 on lower-court judicial nominations and executive-branch nominations, will proceed to abolish the filibuster for Supreme Court nominations.

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