Clearing Up Misreporting about Justice Gorsuch and Masks

Supreme Court Associate Justice Neil M. Gorsuch (Jabin Botsford/Reuters)

At NPR, Nina Totenberg discusses supposed tensions within the Supreme Court. The opening of her discussion focuses on Justice Sotomayor’s widely reported absence from the bench during recent oral arguments. Justice Sotomayor has diabetes, and last fall she alone wore a mask on the bench. Totenberg writes:

Now, though, the situation had changed with the omicron surge, and according to court sources, Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts, understanding that, in some form asked the other justices to mask up.

They all did. Except Gorsuch, who, as it happens, sits next to Sotomayor on the bench. His continued refusal since then has also meant that Sotomayor has not attended the justices’ weekly conference in person, joining instead by telephone.

Many media outlets have echoed Totenberg’s criticism of Justice Gorsuch. Beyond Totenberg’s previous dubious reporting (see, e.g., here and here), there were several reasons to doubt Totenberg’s account. Other sources quickly said that the chief justice made no request for the other justices to wear masks on the bench and that “the timeline for Sotomayor’s decision to go remote does not work with that claim.” More, Totenberg’s piece implausibly contends that any frustrations that Justice Alito has with the chief justice derive from Justice Alito’s supposedly thwarted hopes to be named chief justice himself back in 2005, rather than from jurisprudential differences they’ve had in their 16 years on the Court. Totenberg also makes a glaring error in stating that the Harriet Miers fiasco occurred before Chief Justice Roberts was nominated rather than after his confirmation. So Totenberg’s inferences from purportedly “reliable sources” should have been taken with a grain of salt.

Now, a joint statement from Justices Sotomayor and Gorsuch puts to rest any suggestion of tension between the two about Justice Gorsuch’s decision not to wear a mask: “Reporting that Justice Sotomayor asked Justice Gorsuch to wear a mask surprised us. It is false. While we may sometimes disagree about the law, we are warm colleagues and friends.”

Another reason to have doubted Totenberg’s account is that any demand for Justice Gorsuch to wear a mask on the bench would be difficult to understand. First, all justices are vaccinated and boosted, and evidence suggests that the Omicron variant is less severe than previous variants — including the Delta variant, dominant a few months ago when Justice Sotomayor regularly took the bench with all of her colleagues unmasked. Justice Sotomayor incorrectly claimed at oral argument in the OSHA mandate case that “Omicron is as deadly . . . as Delta” for the unvaccinated, “deaths [are] at an unprecedented amount,” and “100,000 children” are hospitalized.

Second, all justices are routinely tested, including before conferences and oral arguments. That frequent testing led to Justice Breyer’s absence from the bench during the OSHA case, as he received a false positive on a rapid test. Given the Court’s rigorous testing protocol, it is highly unlikely that any justice on the bench would have transmissible Covid.

Third, most justices who now wear masks (including the chief justice) are removing them to ask questions. If one of those justices has an extraordinarily contagious airborne virus, the horse is already out of the barn.

Fourth, after all this, if Justice Sotomayor or any other justice is concerned about catching Covid at a sparsely attended (and highly regulated) oral argument, that concern is addressed by a properly fitted N95, which prevents practically all incoming Covid transmission.

Thus, demanding that Justice Gorsuch wear a mask is irrational, unscientific, and nothing more than Covid theater. Such demands could only be expected from those looking to score cheap political points. As happens so often, the media have substituted their preferred version of the story for the facts.

UPDATE, 3:18 p.m.: Now Chief Justice Roberts has also confirmed that Totenberg’s story was in error: “I did not request Justice Gorsuch or any other Justice to wear a mask on the bench.” One wonders whether retractions and apologies will be forthcoming from Totenberg, the New York Times, and the Washington Post.

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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.”

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In Heartbeat Act Litigation, Fifth Circuit Sensibly Certifies State Law Question to Texas Supreme Court


As expected, on remand from the Supreme Court, a divided Fifth Circuit panel has asked the Texas supreme court, as the authoritative interpreter of Texas law, to advise it whether state licensing officials have authority to enforce the Texas Heartbeat Act (aka S.B. 8).

As I explained in my summary of the Supreme Court’s ruling in Whole Woman’s Health v. Jackson in early December, there was an extremely narrow divide between Justice Gorsuch (joined by Alito, Kavanaugh, and Barrett) and Justice Thomas on the question whether the plaintiff abortion clinics could continue to pursue relief against four state licensing officials:

Gorsuch holds only that sovereign immunity and the Article III adverseness requirement do not bar suit against the licensing officials “at the motion to dismiss stage.” He makes clear that his holding rests on a tentative reading of state law that might turn out to be mistaken. And he expressly agrees with Thomas that the abortion clinics cannot obtain relief against these licensing officials unless they “show at least a credible threat” that the licensing officials will undertake an action against them.

I’ll do my best to present concisely the positions of the panel majority and the dissent and then explain my puzzlement why the abortion providers oppose the panel’s certification of this question to the Texas supreme court.

1. Judge Edith H. Jones, joined by Judge Stuart Kyle Duncan, sets forth three reasons for ordering certification:

First: The Supreme Court “did not conclusively determine the scope of the [licensing] officials’ state law duties, if any, under S.B. 8.” Justice Gorsuch’s opinion “acknowledges uncertainty about Texas law and is laden with qualifiers about the ability of the licensing officials to enforce S.B. 8.” It highlights that “Texas courts and not this one [i.e., not the U.S. Supreme Court] are the final arbiters of the meaning of state statutory directions,” and it only tentatively concludes that “at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S.B. 8.”

Second: The Supreme Court’s remand order “cannot be fairly read to have foreclosed certification.” Texas explicitly told the Court that it wanted to seek certification of the state-law question, and the Court did not remand the case directly to the district court (which can’t certify questions to the Texas supreme court).

Third: The Texas supreme court’s interpretation of state law “will be dispositive as to the position of each Licensing Official at multiple points in the future proceedings,” so certification will promote efficiency and accuracy. Under Supreme Court precedent, certification has “heightened suitability … when federal courts anticipate invalidating a new state law on [federal] constitutional grounds.”

2. In dissent, Judge Stephen Higginson contends that certification “exceed[s] the scope of the Supreme Court’s mandate” and amounts to relitigating issues already decided by the Court. He also contends that the state’s certification request is untimely.

3. In my judgment, the majority clearly has the better of the argument. What’s more, certification does nothing to disadvantage the abortion providers, so it’s difficult to understand why they so vehemently object to this step.

The abortion providers have known since the Court’s ruling in early December that the licensing officials will not be able to enforce S.B. 8 against them. At this point, all that remains is to clarify the legal reason why the licensing officials will not be able to do so.

One possible answer is that they lack legal authority to do so. Only the Texas supreme court can provide that answer, and certification is the quickest way to receive it.

Another possible answer is that licensing officials possess state-law authority to enforce S.B. 8 against the abortion providers but that doing so would violate the abortion providers’ rights under Roe v. Wade and Planned Parenthood v. Casey. That is an answer that the federal district court on remand might provide, but the lack of any imminent threat of enforcement by the licensing officials might well mean that the abortion providers are not entitled to any relief at any time in the foreseeable future.

Many people seem to imagine that a ruling by the federal district court that enforcement by licensing officials would violate the abortion providers’ rights under Roe and Casey would be some sort of gamechanger for S.B. 8. But I don’t see how that argument makes any sense.

Everyone has known from the outset that the heartbeat threshold is inconsistent with the viability threshold of Roe and Casey. But the abortion providers have been deterred from violating S.B. 8 by the massive monetary liability they face, especially if Roe and Casey are overturned. Relief against the licensing officials would do nothing to alter that exposure.

Simply put, in terms of real-world consequences, it is difficult to see how it makes any difference to the abortion providers whether or not they are able to obtain relief against the licensing officials. That’s exactly why they have continued to refrain from post-heartbeat abortions even after the Court’s ruling made clear that, one way or another, licensing officials will not be able to enforce S.B. 8 against them.

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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.

2020—Some judges are too willful or obtuse to take even the strongest hint from the Supreme Court. In Juliana v. United States, the Ninth Circuit panel majority sensibly, though “reluctantly,” discerns from an earlier Supreme Court order that a group of young people lack standing to pursue their legal claim that they have a substantive due process right to a stable climate. But Judge Josephine L. Staton, a district judge sitting by designation on the panel, dissents, hyperbolically asserting that “the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”


This Day in Liberal Judicial Activism—January 16


2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the gavel—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.”

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This Day in Liberal Judicial Activism—January 15


2021—A Ninth Circuit panel rules (in Tekoh v. County of Los Angeles) that when prosecutors have used a defendant’s un-Mirandized statement (i.e., a statement given by a suspect before receiving Miranda warnings) to prove a criminal charge against him, that defendant may pursue a damages action under section 1983 against the officer who took the statement. Never mind that Chief Justice Rehnquist’s baffling opinion in Dickerson v. United States (2000), which declined to overrule Miranda v. Arizona (1966), avoided declaring that the use at trial of a voluntary but un-Mirandized statement violates the Constitution.

Some months later, seven Ninth Circuit judges will dissent from the court’s refusal to rehear the matter en banc.

N.B.: Just yesterday, the Supreme Court granted certiorari to review the Ninth Circuit ruling.

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Chief Judge Pryor Vindicated on Clerkship Hire


Back in October, Eleventh Circuit chief judge William Pryor received intense criticism for hiring a law clerk, Crystal Clanton, who had been accused of making vile racist remarks. The Washington Post’s Ruth Marcus devoted an entire column to the matter, and less reputable voices on the Left piled on. In November, seven members of Congress sent a letter to Chief Justice Roberts urging an investigation of Pryor and of a district judge, Corey Maze, who had also hired Clanton as a law clerk.

As Bill Rankin of the Atlanta Journal-Constitution reports, Second Circuit chief judge Debra Ann Livingston conducted such an investigation, and her investigation vindicated Pryor and Maze. Some excerpts from Rankin’s article:

The Turning Point executive “had determined that the source of the allegations against (Clanton) was a group of former employees,” Livingston wrote. “One of these employees was fired after the organization learned that this person had created fake text messages to be used against co-workers, to make it appear that those co-workers had engaged in misconduct when they had not.”

Pryor and Maze knew about the allegations against Clanton when they interviewed and hired her. And both determined the allegations of racist behavior by Clanton were untrue and found she was highly qualified to serve as a clerk for them, Livingston wrote.

“There is nothing in the record to dispute any of this,” she noted.

The “undisputed record,” Livingston added, shows that Pryor and Maze “performed all the due diligence that a responsible judge would undertake.”

Justice Clarence Thomas also wrote a letter to Livingston on the matter:

In his letter, Thomas said he and his wife took in the distraught Clanton after she left Turning Point USA. She lived in their home for almost a year, the justice said.

Thomas, who said he recommended to Pryor that he hire Clanton as a law clerk, added, “We have reached a sorry state of affairs when a young adult can be indelibly marked with today’s ‘scarlet letter’ of defamation. This is especially true in the judiciary.”

In his letter, Pryor said Thomas told him that Clanton “was a victim of a pernicious attempt to portray her as a racist.” Thomas also said Turning Point USA had conducted an internal investigation and found that a “rogue employee” had compromised the accounts of several co-workers.

After discovering this, Turning Point fired that employee, Thomas said.

The reason Clanton never spoke out against the allegations is because she is bound by a non-disclosure agreement with her former employer, Pryor wrote. Upon learning this, Pryor said, he reached out to Charlie Kirk, founder and executive director of Turning Point, and asked him to explain what had happened.

In his letter to the court, Pryor quoted a passage from a letter Kirk had sent to him in response.

“The media has alleged that Crystal said and did things that are simply untrue,” Kirk wrote. “I have first-hand knowledge of the situations reported on and I can assure that the media has made serious errors and omissions. The sources of these reports are a group of former employees that have a well-documented desire to malign Crystal’s reputation.”

The employee who was fired had “created fake text messages to be used against other employees,” Kirk wrote.

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Re: A Surprising Circuit Court Vacancy


A quick follow-up to Jonathan Adler’s post about Fifth Circuit judge Gregg Costa’s unexpected decision to resign his seat: According to the Federal Judicial Center’s biographical directory of Article III judges, of the 200 or so federal appellate judges appointed since the Reagan administration who are no longer in active service, a total of eight have resigned, rather than retired with pension or taken senior status (or been elevated to the Supreme Court).

Five of the eight will probably be familiar to you:

Robert Bork resigned from the D.C. Circuit at age 60, in the aftermath of the defeat of his Supreme Court nomination, to pursue his scholarly interests.

Michael Chertoff was on the Third Circuit for less than two years when he resigned in 2005 in order to become Secretary of the Department of Homeland Security.

Michael Luttig, who was appointed to the Fourth Circuit at the age of 37, served on that court for nearly 15 years before resigning to become general counsel of Boeing. (Costa’s decision seems most similar to Luttig’s.)

Michael McConnell was on the Tenth Circuit for about seven years before returning to academia.

Kenneth Starr was likewise only 37 when President Reagan appointed him to the D.C. Circuit in 1983. Starr resigned six years later to become Solicitor General.

Two others are somewhat more obscure:

Robert Henry served on the Tenth Circuit for 16 years when he resigned to become president of Oklahoma City University.

Timothy Lewis was on the Third Circuit for around seven years when he resigned to pursue private practice.

And one, I confess, I had never heard of:

Emory Sneeden was appointed by President Reagan to a Fourth Circuit seat in 1984. He resigned less than two years later and died the following year at age 60.

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This Day in Liberal Judicial Activism—January 14


1972—By a vote of 4-1 (in Beecham v. Leahy), the Vermont supreme court declares invalid a state law that bars a person from performing an abortion except where necessary to save the life of the mother. The opinion dishonestly asserts that the legislature, by not applying the prohibition directly to the mother, had somehow given an “implicit recognition” to a woman’s right to an abortion. It then holds that “the legislature, having [purportedly] affirmed the right of a woman to abort, cannot simultaneously, by denying aid in all but cases where it is necessary to preserve her life, prohibit its exercise.”

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.

2019—In a very curious opinion in Pennsylvania v. Trump, federal district judge Wendy Beetlestone bars the Trump administration from enforcing its final rules that would exempt employers with religious or moral objections from complying with objected-to portions of the Obama administration’s contraceptive mandate.

In direct conflict with the Obama administation’s own actions, Beetlestone rules that the executive branch has no authority under Obamacare to exempt any employers from the Obama administration’s contraceptive mandate on religious or moral grounds. On the separate question whether the federal Religious Freedom Restoration Act authorizes or requires the religious exemption, Beetlestone adopts the astounding position that federal bureaucrats are not supposed to give any thought to what RFRA demands. She further rules that procedural defects that she previously found in the “interim” rules fatally taint the final rules. Never mind that the Obama administration used the same process, with the same supposed defects, to create the underlying contraceptive mandate in the first place, and the effect of her ruling is to re-impose that mandate on objectors.

In its 2020 decision in this case (styled Little Sisters of the Poor v. Pennsylvania), seven justices of the Supreme Court, including Justices Breyer and Kagan, will reject each of Beetlestone’s rulings.

2021—Implausibly distinguishing Supreme Court precedent (in Bello-Reyes v. Gaynor), a Ninth Circuit panel of three liberal judges allows an illegal immigrant, Jose Omar Bello-Reyes, to pursue a claim that he was arrested in retaliation for publicly reading a poem that criticized the practices of federal immigration authorities.

Ten months later, Bello-Reyes will be charged with murder for a drug-related shooting death that occurred just weeks after he left jail.

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A Mixed Day for Vaccine Mandates at the Court


Today the Court handed down decisions on injunctive relief in two cases involving vaccine mandates. In National Federation of Independent Business v. Department of Labor, which involved the more sweeping regulation, the Court stayed OSHA’s emergency temporary standard (“ETS”)—which required companies with 100 or more employees to require workers to be vaccinated or wear a mask and submit to weekly tests—noting that it was neither a workplace regulation nor an emergency.

OSHA was engaging in nothing short of a power grab, and the Court was correct to reject it. Recall that White House Chief of Staff Ron Klain recognized via his retweet several months ago that this was “the ultimate work-around” for the federal government to require vaccinations en masse.

The Court’s 6–3 per curium opinion rightly observed that OSHA’s ETS was no “everyday exercise of federal power,” and there was no justifiable ground for OSHA to bypass the normal rulemaking procedure. As “creatures of statute,” federal agencies “possess only the authority that Congress has provided,” and Congress must “speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

The underlying statute, the Occupational Safety and Health Act, plainly empowers the agency “to set workplace safety standards, not broad public health measures.” The Court observed that Covid “is not an occupational hazard in most” workplaces. It spreads “at home, in schools, during sporting events, and everywhere else that people gather. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable diseases.” OSHA’s approach to regulation was “indiscriminate,” because it “fails to account for this crucial distinction—between occupational risk and risk more generally.”

In short, the majority noted, “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”

Justice Gorsuch wrote a concurring opinion joined by Justices Thomas and Alito that reinforced the Court’s opinion in terms of the “major questions doctrine,” by which Congress must speak clearly when assigning decisions of vast significance to agencies. Noting its relationship to the nondelegation doctrine, Gorsuch asserted that this doctrine “guard[s] against unintentional, oblique, or otherwise un­likely delegations of the legislative power.”

That concurrence addressed the question of who decides such a momentous issue, a point that had dissenting Justices Breyer, Sotomayor, and Kagan bemoaning the lack of deference by the Court, whose “Members are elected by, and accountable to, no one.” Keep that concession in mind the next time they try to override legislatures with new judicial inventions spun out of whole cloth. As Gorsuch pointed out, the Court was justified precisely by its respect for “state and local governments across the country and the people’s elected representatives in Congress” as the proper decisionmakers.

Unfortunately, the second decision handed down today, Biden v. Missouri, upheld the Centers for Medicare and Medicaid Services (CMS) vaccine mandate that applies to nearly all health care workers, despite the similar absence of clear statutory authorization. This time the vote was 5–4. It was disappointing to see Justice Kavanaugh, along with Chief Justice Roberts, join the Court’s per curiam opinion.

Justice Thomas explained in his dissent, joined by Justices Gorsuch, Alito, and Barrett: “Had Congress wanted to grant CMS power to impose a vaccine mandate across all facility types, it would have done what it has done elsewhere—specifically authorize one.” Justice Alito wrote another dissent rebuking CMS for “its departure from ordinary” notice-and-comment rulemaking “after extraordinary delay,” taking a “regulate first and listen later” approach when it “put more than 10 million healthcare workers to the choice of their jobs or an irreversible medical treatment.”

We are now seeing a pattern of regulatory overreach from the Biden administration. Last year the Court described the CDC’s stretching of the Public Health Service Act to enact its eviction moratorium as “unprecedented” and “a wafer-thin reed on which to rest such sweeping power.”

So this was a mixed day for vaccine mandates at the Court. One point worth adding: Critics outraged over the Court’s emergency docket procedure earlier this fall have little to complain about in that regard, as these cases were given full briefing and oral argument. Since these cases dealt only with the likelihood of success on the merits and not final dispositions, we can only hope the CMS case would ultimately come out the other way if it returns to the Court. Otherwise, as Justice Alito warned, rewarding such departures from administrative procedure “may have a lasting effect on Executive Branch behavior.”

Law & the Courts

A Surprising Circuit Court Vacancy

(artisteer/Getty Images)

Yesterday, Judge Gregg Costa of the U.S. Court of Appeals for the Fifth Circuit announced that he would be resigning from the bench, effective August 5, 2022. Judge Costa will not be taking senior status, as he is not yet eligible to do that. He is only 49 years old, and has only been on the Fifth Circuit bench seven-and-a-half years, having been appointed by President Obama in May 2014. Judge Costa had previously served as a district court judge, and was confirmed unanimously to the Fifth Circuit.

With Judge Costa’s announcement, President Biden now has the opportunity to fill two seats on the Fifth Circuit, one from Texas and one from Louisiana. In total, there are now 21 current or future vacancies on the federal circuit courts (four current, 17 future). As of today, the White House has only identified nominees for seven of the 21 seats, even though some of these vacancies have been pending for quite some time.

For reference, the Administrative Office of the U.S. Courts keep track of vacancies here.

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This Day in Liberal Judicial Activism—January 13


2019—Federal district judge Haywood S. Gilliam Jr. enters an order (in California v. HHS) blocking the Trump administration from implementing its rules creating a religious and moral exemption to the HHS contraceptive mandate.

A year and a half later, in Little Sisters of the Poor v. Pennsylvania, the Supreme Court will rule by a 7-2 vote that the Trump administration had authority to promulgate the rules.

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Law Prof Eric Claeys on Roe’s Viability Holding


Roe v. Wade and Planned Parenthood v. Casey have been widely understood to forbid prohibitions on abortion before viability. That is so for one very good reason: that is exactly what they say and hold.

In a forthcoming law-review article and an ongoing series of guest blog posts at the Volokh Conspiracy, law professor Eric Claeys systematically dismantles an alternative theory of Roe and Casey that Chief Justice Roberts “seemed to suggest” at oral argument in Dobbs v. Jackson Women’s Health Organization: namely, that Roe and Casey instead entitle women only to “fair opportunities to obtain abortions sometime during their pregnancies.” (The quoted language is Claeys’s interpretation of what he calls the Chief’s “exploratory theory.”) If this reconception of Roe and Casey were sound or even plausible, the Court could vote to uphold Mississippi’s ban on abortion after 15 weeks of viability without also overruling Roe and Casey.

As Claeys compellingly and exhaustively demonstrates, this alternative theory badly misreads Roe and Casey. In his post today, Claeys reminds readers that Roe declared a statute unconstitutional on its face. He explains how “Roe’s judgment relied on a rule of decision about overbreadth” that “made the standard of viability necessary—in the sense of indispensable—to the declaratory judgment delivered in Roe.” An excerpt:

In Roe the Court noted, with approval, that in abortion challenges lower federal courts had been applying the overbreadth doctrine. Later, in the part of the opinion most necessary to the Court’s judgment (Part X), the Court “measured” the Texas prohibitions “against the[] standards” it had drawn via its trimester framework. The Court found that the statute “makes no distinction between abortions performed early in pregnancy and those performed later.” On that basis, the Court concluded that the key statute “sweeps too broadly” and “cannot survive the constitutional attack made upon it.”

Although the Court could have been a lot more direct about the rules it was applying, “sweeps too broadly” makes clear that the Court was conducting an overbreadth analysis. As yesterday’s post showed, the Court demonstrated that the Texas statutes under challenge threatened a constitutional right it had just announced. The Court conducted the sort of comparison Broadrick [v. Oklahoma (1973)] called for when it observed that the key Texas statute prohibited both abortions “early in pregnancy and those performed later.” The abortions “early in pregnancy” were the constitutionally-protected abortions chilled by the key statute; the ones “performed later” were the ones that the statute could prohibit constitutionally. But how did the Court know which intended abortions were protected and which ones were not? From the passages of Roe specifying abortion rights via the police powers. And in particular, from the passages declaring that fetuses’ and states’ interests in fetal life do not become “compelling” until viability.

And that account should make clear how deeply intertwined viability is with Roe‘s judgment…. In Roe, it made not one difference that Roe didn’t allege anything about whether her pregnancy was before or after the viability threshold. Since overbreadth doctrine applies to abortion challenges, the Court could declare a restriction on abortion unconstitutional on its face, by roving to find a substantial number of situations in which the restrictions would chill the exercise of abortion rights.

In short, … [Roe‘s overbreadth] proposition applies black-letter overbreadth doctrine to a state law restricting abortion rights: Such a law is unconstitutional on its face if it restricts pregnant women’s federal substantive due process abortion rights unconstitutionally, and if the number of situations in which it applies unconstitutionally seems substantial in relation to the number of situations in which the law could restrict abortion rights constitutionally. That proposition also makes viability necessary—indispensable, really—to Roe‘s holding. Viability was the proxy the Court used to classify different possible applications of the challenged statutes as constitutional or unconstitutional. Since viability was the sorting mechanism the Court used to conduct overbreadth analysis, it is part of the reason for decision about overbreadth.

Claeys soundly concludes that there is no middle ground in Dobbs between overruling Roe and Casey, on the one hand, and re-affirming them, on the other. If the Court is to allow the Mississippi 15-week law to operate, it must overrule Roe and Casey.

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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.”

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This Day in Liberal Judicial Activism—January 11

(AMAYRA/iStock/Getty Images)

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

This Day in Liberal Judicial Activism—January 10


2006—Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But California governor Jerry Brown will then appoint Liu to the state supreme court.

In 2018, a joint project of Berkeley Law’s California Constitution Center and the Hastings Law Journal will rank Liu as the most liberal justice of the California supreme court, both overall and in each of five subcategories.

Law & the Courts

This Day in Liberal Judicial Activism—January 9


1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.

This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute.

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.”

Law & the Courts

This Day in Liberal Judicial Activism—January 8


2010—Solicitor General Elena Kagan personally assigns her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal promptly informs the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will take the lead, and that “we will bring Elena in as needed.” Two months later, with litigation impending, Kagan and Katyal consult on who should attend a White House meeting on what Katyal calls “litigation of singular importance.”

But in connection with (and presumably to facilitate) her nomination to the Supreme Court in May 2010, Kagan will nurture the notion that she had somehow (for utterly inexplicable reasons) “been walled off from Day One” from the litigation over Obamacare, and, after her appointment to the Court, she will decline to recuse herself from deciding cases arising from that initial round of litigation in which she took part. Instead, she will provide the decisive fifth vote in NFIB v. Sebelius (2012) rejecting the constitutional challenge to Obamacare’s individual mandate.

2020—In a video that she sends to San Francisco’s left-wing district attorney Chesa Boudin for his swearing-in, Justice Sonia Sotomayor somehow sees fit to tell Boudin “how much I admire you,” to praise his “strength of character and moral composure,” to call him “a great beacon to many,” and to say that San Francisco “will be so very well served” by him.

Boudin will quickly earn a reputation for being soft on crime and for being an incompetent manager. Two of his own top prosecutors will resign from his office in October 2021 and join the campaign to remove him from office via a recall election in June 2022.

Law & the Courts

This Day in Liberal Judicial Activism—January 7


2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See here for more.)

Politics & Policy

President Biden Should Listen to Senator Biden Before ‘Emasculating the Senate’

Then-Senator Biden speaks to Chief Justice nominee Roberts during the latter’s senate confirmation hearing in Washington, D.C., in 2005. (Jason Reed/Reuters)

The date was April 27, 2005, and then-senator Joe Biden (D., Del.) rose to give “one of the most important speeches . . . I will have given in the 32 years since I have been in the Senate.” The Republican majority was talking about abandoning the Senate’s tradition of extended debate. Doing so, Biden said, would “emasculate the Senate.”

Republicans did not take that leap in 2005, but Biden is urging Democrats to do so now. President Biden should listen to Senator Biden.

Senate rules require a supermajority (currently 60 votes) to end debate on a bill before a simple majority can pass it. A “filibuster” occurs when fewer than 60 Senators vote to end debate. As something of a legislative speed bump that empowers the minority and annoys the majority, extended debate has been, the Congressional Research Service says, one of the Senate’s “most distinctive procedural features” for more than two centuries.

The majority often complains that the vote threshold for ending debate is too high. Without any debate rule between 1806 and 1917, ending debate required 100 percent agreement. Senate Rule 22 set that threshold at two-thirds in 1917, and it has been three-fifths of the full Senate since 1975. Because changing the Senate’s most distinctive feature is such a serious matter, each change was made only after the formal process established in Senate rules produced a wide, bipartisan consensus.

The “nuclear option” was invented so a simple majority of senators can still change how the Senate operates. This parliamentary gimmick leaves untouched what Senate rules say, but reinterprets what they mean. If that sounds familiar, it is akin to what the Supreme Court has often done with our written Constitution, what Justice George Sutherland in 1937 called “amendment in the guise of interpretation.” A simple majority simply adopts a reinterpretation of a rule that they lack the votes to actually change.

In his 2005 speech, Biden addressed both the goal of eliminating extended debate and using the nuclear option to achieve it. He made several compelling points that remain true today.

First, extended debate is about “the Senate’s proper role in our system of Government,” not about any particular bill. Quoting historian Robert Caro, author of Master of the Senate, Biden said that changing “the right of extended debate in the Senate” is not about “the particular dispute of the moment, but . . . the fundamental character of the Senate of the United States.”

Second, that fundamental character comes from how America’s founders designed the Senate. They made it a “different kind of legislative body” than those, like the House of Representatives and parliaments around the world, where even a slim majority has all the power. Extended debate, Biden said, is an important part of the “system of checks and balances” that prevents “the aggrandizement of power” in too few hands.

Third, this design makes the Senate a more “consensus body” by pushing the majority to work with the minority. “Extended debate,” Biden said, is “a means to reach a more modest and moderate result to achieve compromise and common ground.” Biden’s colleague, Senator Charles Schumer (D., N.Y.), agreed and acknowledged that extended debate “often makes better legislation.”

Fourth, using the nuclear option rather than the established process for amending the Senate’s rules so a narrow majority can make such a significant change will have grave consequences. It would, Biden said, “eviscerate the Senate” and “gut the very essence and core of what the Senate is about as an institution.”

Then-senator Barack Obama (D., Ill.) made the same point a few days earlier, arguing that “if the majority chooses to . . . change the rules and put an end to democratic debate, then the fighting, the bitterness, and the gridlock will only get worse.”

Biden also said that, by changing meaning but not language, the nuclear option “would send a terrible message about the malleability of Senate rules. No longer would they be the framework that each party works within.” Instead, Biden warned that there would be “nothing to stop a temporary majority from doing so whenever a particular rule would pose an obstacle.”

Finally, Biden pointed out that “[e]ven when the Senate’s rules have been changed in the past to limit extended debate, it has been done with great care, remarkable hesitancy, and by virtual consensus.” He was right. The Senate has set or changed the vote threshold for ending debate four times. Each time, a senator introduced a resolution to amend the debate rule, the Rules Committee held hearings, and the Senate extensively debated the issue.

The Senate voted 76-3 to adopt the debate rule in 1917, 63-23 to lower the vote threshold in 1949, and 72-22 to change it again in 1959. That year is significant because the Senate also added that “[t]he rules of Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.” The nuclear option, of course, would violate this command.

In 1975, the Senate once more lowered the threshold for ending debate to 60 percent of all Senators, but kept the threshold for changing Senate rules at two-thirds. Three decades later, in his 2005 speech, Biden admitted that he initially supported “jettisoning established Senate rules and ending debate on a rules change by a simple majority.” That position, he came to realize, was “misguided” and, in the end, “I and my colleagues . . . reversed ourselves and changed the cloture rule but only by following the rules.”

Biden said that eviscerating the Senate “to help in one political fight or another . . . would be disastrous.” A “current debate, over a particular set of issues,” he insisted, “should not be permitted to destroy what history has bestowed on us.” President Biden should listen to Senator Biden before it’s too late.

Law & the Courts

Biden’s Extraordinary Record on Black Female Appellate Nominations


As Jonathan Adler noted, just before Christmas, President Biden announced two rather surprising federal appellate nominees—Nancy Gbana Abudu to the Eleventh Circuit and J. Michelle Childs to the D.C. Circuit. I’m going to pass over for now commenting on the merits of either nominee. (The Abudu pick has, as Jonathan anticipated, already generated controversy.) Instead, I’m going to use the occasion to elaborate on my post, three days before Biden’s announcement, in which I observed that, by Biden’s declared standard of demographic diversity, his first year of judicial nominations has clearly been a remarkable success.

In particular, I would like to highlight what strikes me as the most extraordinary aspect of Biden’s judicial picks so far: with the Abudu and Childs nominations, seven of Biden’s eighteen federal appellate nominees—39%—have been black women. The other five include the first four appellate judges that Biden commissioned: Ketanji Brown Jackson (D.C. Circuit), Candace Jackson-Akiwumi (Seventh Circuit), Tiffany P. Cunningham (Federal Circuit), and Eunice Lee (Second Circuit). The fifth, Holly Thomas (Ninth Circuit), will likely be confirmed this week or next.

Some observations:

1. According to the American Bar Association’s 2021 Profile of the Legal Profession, 4.7% of American lawyers are black and 37% are female. On the ballpark assumption that the male-female divide among black lawyers reflects the broad 63%-37% divide among all lawyers, that would indicate that roughly 1.7% of American lawyers are black females. That would mean that Biden has nominated black women to federal appellate seats at more than 22 times their numbers among American lawyers.*

To make the point another way: There are 179 authorized federal appellate judgeships. If black women held appellate judgeships according to their numbers in the legal profession, they would have a total of three seats. (Four black women were appellate judges in active status when Biden became president; two of them have since announced an intention to take senior status.)

2. Over the course of his eight years as president, Barack Obama appointed only two black women to federal appellate seats: O. Rogeriee Thompson (First Circuit) and Bernice B. Donald (Sixth Circuit). (In the last year of his presidency, when Republicans controlled the Senate, Obama unsuccessfully nominated Myra C. Selby to a Seventh Circuit seat—the very seat, as it happens, that ended up being filled by Amy Coney Barrett.)

It’s worth pondering what accounts for the vast discrepancy between Obama and Biden. I see four possible factors. One is that the pool of black female lawyers who have the credentials to be considered plausible candidates for federal appellate seats is probably much larger than it was during Obama’s presidency. This would be a natural consequence of the increase over time in the number of black women who have gone to law school and succeeded in the legal profession.

A second possible factor is that the Biden White House is much more committed to nominating black women than the Obama White House was. Why this would be is unclear. A political explanation might be that Biden needs to prove himself more to the black community than Obama did, but that wouldn’t explain why all but one of Biden’s black appellate nominees have been women. Insofar as personnel is policy, the composition of the White House counsel’s office might be a big factor. (Biden’s White House counsel’s office has lots of women lawyers, including the White House counsel herself, and several black women lawyers; I don’t know offhand how that compares to the Obama White House.)

A third factor might be that the abolition of the filibuster for judicial nominees in December 2013 makes it much easier for black women nominees to be confirmed. But why would it make it easier for them as compared to other nominees? The fact that Obama did not nominate any black women to appellate seats in the immediate wake of the filibuster abolition also cuts against this explanation.

A fourth factor, and one that I think might be easily overlooked, is that the demotion of the home-state senator’s blue-slip privilege on appellate nominations—put into effect by then-Senate Judiciary Committee chairman Chuck Grassley in late 2017—dramatically increases the White House’s power in the nomination process, including over same-party senators. Without the ability to veto a nomination, it’s much harder for a home-state Democratic senator to tell the Biden White House that it has to nominate someone from the senator’s short list. (For this reason, I doubt very much that the Senate will ever demote the blue slip for district-court nominees. To put the point concisely, no senator will ever want to have a political enemy presiding over his corruption trial.)

3. The fact that black women are massively overrepresented among Biden’s appellate picks of course means that other groups haven’t fared as well.

According to the ABA report, Hispanics account for 4.8% of American lawyers, slightly higher than the 4.7% figure for blacks. They also account for a much larger share of the American population. But whereas Biden has nominated eight blacks (the seven women, plus Sixth Circuit nominee Andre Mathis) to appellate seats, he has nominated only three Hispanics. And one of those, Gustavo Gelpí, was to the Puerto Rico seat on the First Circuit, where it would have been difficult not to nominate a Hispanic. So while the Hispanic nomination rate amply exceeds the percentage of Hispanic lawyers, it is much less than half (and, if you exclude Gelpí from the calculus), barely above a quarter of the black nomination rate.

Of course, the big losers (I take some delight in noting) are liberal white males. By the ABA’s numbers, white males account for more than half of American lawyers. Yet only two of Biden’s eighteen appellate nominees (11%) are white males.

(I have previously highlighted law professor John McGinnis’s superb essay on the theoretical and practical problems with the Left’s heavy emphasis on diversity, or representativeness, as a criterion in selecting judges. Nothing in this post should be mistaken as an endorsement of that emphasis.)

* A couple of readers have suggested to me that the male-female divide among black lawyers might be very different and that there might even be more women than men among black lawyers. Even if the ratio were flipped (63% women to 37% men), that would mean that just under 3% of lawyers are black women. That would reduce the “overrepresentation” to a factor of 15 or so, which is still enormous.

Law & the Courts

Time to Grant Cert in the Harvard Case


In her majority opinion in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor observed that 25 years had passed “since Justice Powell first approved the use of race to further an interest in student body diversity in the context of higher education” (in Regents of the University of California v. Bakke (1978)). Justice O’Connor went on to declare that she “expect[s] that 25 years from now, the use of racial preferences will no longer be necessary to further [that] interest.”

Well, nineteen years have passed since Grutter, and racial preferences are more entrenched than ever. Among the elite universities that embrace them, is there a single university president who will dare to suggest that they might be discarded?

As Chief Justice Roberts nicely put it, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” At conference on Friday, the Chief Justice will have another opportunity to put those words into action. The Court is scheduled to decide whether to grant the certiorari petition filed by Students for Fair Admissions in its lawsuit against Harvard College’s use of racial preferences that penalize Asian-American applicants in the admissions process.

Last June, in what many regarded as a delaying action, the Court invited the United States to express its views on the certiorari petition. The United States finally did so last month, and Students for Fair Admissions filed its response. Here is an excerpt from the introduction to its response:

The Government doesn’t accept that Grutter is a temporary evil—as Grutter itself said—or argue that now is not the time to overrule it. The Government proclaims that Grutter is “correct,” and seems to endorse Harvard’s view that universities should never stop sorting high schoolers by race. It also frets about upsetting universities’ “reliance” on the legality of race-based admissions generally, and Harvard’s program specifically. All while never once clearly stating that it believes Harvard is complying with the existing precedent, or explaining how universities could ever legitimately rely on Grutter.

Gone from the Government’s brief is the moral clarity that it offered in Brown. There the Government urged this Court to overrule Plessy v. Ferguson. It acknowledged that the end of separate-but-equal would upset reliance interests: Laws would be changed, schools closed, districts redrawn, teachers and students transferred, and transportation rerouted. The Government even noted that segregationist policies were adopted “upon the assumption, supported by previous declarations of this Court, that they were consistent with the requirements of the Fourteenth Amendment.”

The Government stood firm in Brown. It insisted that change was required because, in a country that professes “all men are created equal,” each person must be treated “as an American, and not as a member of a particular group classified on the basis of race.” “The rule of stare decisis,” the Government declared, must give way to “the fundamental principle that all Americans, whatever their race or color, stand equal and alike before the law.” Presaging this case, the Government added that no neutral principle of law “could support a constitutional distinction between universities on the one hand, and public elementary or high schools on the other.”

Like Plessy, Grutter is wrong, immoral, and unpersuasive, and has not aged well. Nor is it followed by Harvard or other universities. This Court should grant certiorari to reexamine Grutter and the admissions process that Grutter held up as a model. Because Harvard is where it all began, this case is not a “poor vehicle for reconsidering Grutter.” It is the perfect vehicle. As the Government concluded its brief in Brown, “‘We know the way. We only need the Will.’”

See also Roger Clegg’s “Take the Harvard Case.”

Law & the Courts

Judicial Winning: Judge Oldham Calls Out the Biden Administration’s Immigration Gamesmanship


On December 13, a panel of the Court of Appeals for the Fifth Circuit affirmed a district court order enjoining the Biden administration’s termination of the Migrant Protection Protocols (MPP), better known as “Remain in Mexico.” The court’s opinion, by Judge Andy Oldham, is one of the strongest judicial rebukes to the Biden administration to date.

Some background: In January 2019, Secretary of Homeland Security Kirstjen Nielsen created the protocols in order to return illegal immigrants apprehended at the border with Mexico. Nielsen intended the MPP to “address the urgent humanitarian and security crisis at the Southern border” and “end the exploitation of our generous immigration laws.”

Joe Biden criticized the protocols on the campaign trail and, just days after his inauguration, new enrollments in MPP were suspended. Texas and Missouri challenged President Biden’s suspension of MPP in federal court. While that case was pending, the new DHS secretary, Alejandro Mayorkas, issued a memo terminating MPP. A few months later, the district court reviewing the states’ lawsuit issued an order enjoining Mayorkas’s termination for its failure to comply with the Administrative Procedure Act (APA). The Fifth Circuit denied the Biden administration’s request for a stay pending appeal. Undeterred, the administration requested relief from the Supreme Court. Its request was denied, with Justices Breyer, Sotomayor, and Kagan dissenting.

Three days before the Fifth Circuit’s scheduled oral argument in the states’ appeal, Mayorkas issued a new memo terminating the MPP. The government contended that this latest memo superseded and rescinded his initial termination memo—and that therefore continuing litigation was pointless. At oral argument, one of the members of the panel, Judge Kurt Engelhardt, said it was “suspicious and disappointing” that the Biden administration had issued a new memorandum. “Why is it an Oct. 29 memo and not an Oct. 1 memo or a Sept. 15 memo?” he asked. “The motion comes with some suspicion of gamesmanship.”

The panel, in an exacting 117-page opinion written by Judge Oldham, is the judicial equivalent of a smackdown. “DHS’s proposed approach is as unlawful as it is illogical,” Oldham asserted. “Under Supreme Court and Fifth Circuit precedent, this case is nowhere near moot. And in any event, the vacatur DHS requests is an equitable remedy, which is unavailable to parties with unclean hands. The Government’s litigation tactics disqualify it from such equitable relief.” Mayorkas’ second termination memo “did not reopen the actionable Termination Decision” and could not “render a final agency action retroactively nonfinal.” The termination decision was “analogous to the judgment of a court, and its memos . . . analogous to a court’s opinion explicating its judgment. A judgment, not the opinion announcing that judgment, has a binding effect that settles the dispute before the court.”

Oldham also made clear that the objecting states had standing to bring the case because of their increased fiscal costs associated with an influx of illegal migrants resulting from MPP’s termination. As to the merits of the case, the panel held that the initial termination was “arbitrary and capricious” in violation of the APA and contrary to section 235 of the Immigration and Nationality Act (INA). There were a number of “relevant factors” that DHS failed to consider in making the termination decision. Among these were the plaintiff states’ “legitimate reliance interests” in the continuance of MPP, the benefits of MPP, alternatives to MPP, and what the court termed “the legal implications of terminating MPP.”

Oldham’s textualist analysis was remarkably thorough. Despite the administration’s recognition that the four statutory alternatives in the INA—detention under section 235; return under section 235(b)(2)(C); parole in accordance with section 212(d)(5); and bond or conditional parole under the limitations in section 236(a)—were “exhaustive,” its “Termination Decision nonetheless purported to arrogate to DHS a fifth alternative that Congress did not provide.” Oldham stoutly rejected as both “dangerous” and “limitless” the administration’s assertion that “DHS can ignore Congress’s limits on immigration parole and that Supreme Court precedent makes everyone (including the plaintiff States and the federal courts) powerless to say anything about it.”

For anyone thinking that Oldham and the other panel members were mounting a politically motivated attack on the current administration, it is worth noting that their opinion repeatedly cited the Court’s 2020 decision in Department of Homeland Security v. Regents of the University of California, where the Court struck down the Trump administration’s attempt to use similar tactics to end the Deferred Action for Childhood Arrivals program (DACA).

Oldham was spot on in treating the Biden administration’s termination of the MPP not as discretionary “nonenforcement,” but rather as “misenforcement” in clear violation of the APA. He also called out the clear attempt to suspend congressional mandates and limitations found in the INA. In short, he made it abundantly clear that the administration’s tricky attempt to terminate MPP could not stand. And he did so, moreover, in a devastating piece of legal analysis that will not be quickly forgotten.

Law & the Courts

Federal Vaccine-Mandate Wars at the Supreme Court


Catching up on some of the news over the Christmas holiday, I’ll highlight that the Supreme Court will hear oral argument this Friday on two sets of disputes over the Biden administration’s covid vaccine mandates.

The first set of disputes—the one that has received the lion’s share of attention—concerns an emergency rule (or “temporary standard”) issued by the Occupational Safety and Health Administration that would require employers with 100 or more employees to insist that their employees either be vaccinated or wear masks and arrange for weekly testing. To simplify a complicated procedural history: On December 17, a divided panel of the Sixth Circuit vacated a stay of the OSHA rule. Plaintiffs challenging the OSHA rule have asked the Supreme Court to re-impose the stay. Absent a stay, OSHA will begin enforcing the rule next Monday, January 10.

In my judgment, both Judge Joan Larsen’s dissent from the panel ruling and Chief Judge Jeffrey Sutton’s opinion dissenting from the Sixth Circuit’s denial of initial rehearing en banc make an overwhelming case for staying the OSHA rule. I won’t undertake to summarize their arguments here but instead invite the interested reader to read the opinions or the analyses that Andy McCarthy and Jonathan Adler have offered. This strikes me as a matter on which the Supreme Court ought to be unanimous, but perhaps it’s very naïve to think that it might be.

The second set of disputes concerns a rule issued by the Centers for Medicare and Medicaid Services (CMS) that generally requires that Medicare- and Medicaid-certified providers and suppliers ensure that their workers are vaccinated. In challenges brought by states, two federal district courts entered preliminary injunctions against the CMS rule. The Biden administration is asking the Court to stay those injunctions pending appeal, so it bears the burden of establishing its entitlement to relief. On my admittedly hasty review of one of the district-court rulings, I am doubtful that it will succeed in doing so.

For what it’s worth, I’m very pro-vaccine, and I’m also strongly inclined to believe that the states have broad authority to impose vaccine mandates, but I’m very skeptical that federal agencies have authority to do so, especially in the absence of clear authorization from Congress.

Law & the Courts

This Day in Liberal Judicial Activism—January 4


2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”

Law & the Courts

This Day in Liberal Judicial Activism—January 1

The 2022 numerals arrive in Times Square ahead of New Year’s Eve celebrations in New York City, December 20, 2021. (Andrew Kelly/Reuters)

2022—Happy New Year! Welcome to another year of This Day in Liberal Judicial Activism.

I assure longtime readers that you’ll find plenty of new content this year. Plus, the permanent collection should serve as a useful reminder of how dominant liberal judicial activism is in our legal culture.

Let’s hope against hope that this New Year won’t provide additional material for further This Day posts.

Law & the Courts

This Day in Liberal Judicial Activism—December 31

(simpson33/iStock/Getty Images Plus)

2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days.

Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.

Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:

The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.

2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.

Law & the Courts

This Day in Liberal Judicial Activism—December 30

(Zolnierek/Getty Images)

2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.

On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.” Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.

In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v. Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.

2008—Poor Stephen Reinhardt. The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.” Some eleven months later, in a per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings. Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence. (See This Day for November 16, 2009.)

Law & the Courts

This Day in Liberal Judicial Activism—December 29


1965—In Scenic Hudson Preservation Conference v. Federal Power Commission, a Second Circuit panel abandons the traditional requirement that a plaintiff, in order to establish standing, must allege a concrete and particularized injury that is actual or imminent. In a ruling authored by Judge Paul R. Hays, the court declares that “those who by their activities and conduct have exhibited a special interest” in “the aesthetic, conservational, and recreational aspects of power development” have standing to challenge the Federal Power Commission’s grant of a license to a company to construct a hydroelectric project on the Hudson River.

2014—Twenty-five years after Eric Owen Mann murdered two men in cold blood, Ninth Circuit judges Sidney R. Thomas and Stephen Reinhardt combine to rule (in Mann v. Ryan) that Mann is entitled to habeas relief on his claim that his counsel’s performance at the sentencing phase of his trial was constitutionally deficient. In dissent, Judge Alex Kozinski observes:

Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.” In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

In August 2015, the Ninth Circuit will grant en banc review of the panel ruling, and in July 2016, it will repudiate the panel ruling.

2017—You might have thought that Ninth Circuit judge Harry Pregerson’s death in November 2017 would mark the end of his long career of judicial activism. But in a divided panel decision in Hernandez v. Chappell, Judge Stephen Reinhardt adds Pregerson to his opinion to create a majority ruling that vacates, on habeas review, the convictions in 1983 of Francis Hernandez on two counts of first-degree murder, two counts of rape, and two counts of forcible sodomy.

In February 2019, in vacating a ruling issued in Reinhardt’s name eleven days after his death, the Supreme Court (in Yovino v. Rizo) will reject the proposition that judges can exercise judicial power after their death: “Federal judges are appointed for life, not for eternity.”

Law & the Courts

This Day in Liberal Judicial Activism—December 28


2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

Law & the Courts

This Day in Liberal Judicial Activism—December 27

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, D.C., June 14, 2019 (Jonathan Ernst/Reuters)

1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis. The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement. (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.” He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.” “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.” But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier. In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career: “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.” Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”

Law & the Courts

This Day in Liberal Judicial Activism—December 26


2018—“What nonsense!” protests Judge Diarmuid O’Scannlain in his withering critique of the Ninth Circuit panel decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District. In ruling that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, the panel concluded that school-board meetings are not legislative in nature and that the Supreme Court’s rulings on legislative prayer therefore did not apply. But, as O’Scannlain complains, the panel “bizarrely transforms the Board meetings into a ‘school setting’” and implausibly maintains that any students who choose to attend a board meeting are somehow “under the control of public-school authorities.”

O’Scannlain issues his opinion in protest against the Ninth Circuit’s refusal to grant en banc rehearing of the panel ruling. His opinion is joined by seven other judges, including Clinton appointee Johnnie Rawlinson.

Law & the Courts

This Day in Liberal Judicial Activism—December 25

A Christmas nativity scene outside a home in the Sleepy Hollow area of Torrance, Calif., December 15, 2015. (Lucy Nicholson/Reuters )

1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

Law & the Courts

President Biden Names Two Circuit-Court Nominees Just before Christmas

President Joe Biden speaks about the country’s fight against the coronavirus disease at the White House in Washington, D.C., December 21, 2021. (Kevin Lamarque/Reuters)

On Thursday, the Biden administration announced two more nominees to federal appellate courts: Judge J. Michelle Childs for the D.C. Circuit and Nancy Gbana Abudu for the Eleventh Circuit. These are two very notable nominations, though for different reasons.

Judge Childs is being nominated to replace Judge David Tatel, who announced his decision to take senior status on the confirmation of his successor back in February. Yes, you read that right. It took the White House ten months to settle on a nominee for the D.C. Circuit, even though there are no home-state senators with which the White House had to negotiate. There was apparently lots of jockeying for the seat, which many had thought might go to progressive attorney Deepak Gupta. It is also worth noting that while Judge Childs has substantial judicial experience, she does not appear to have much of a background in federal administrative law, which makes this an interesting choice.

The Abudu nomination is significant in a different respect. If there is a circuit-court nomination that may fail in the 50-50 Senate, this could be it. Abudu will be a controversial nomination because she works at the Southern Poverty Law Center, which has been quite rash in labeling conservative organizations to be “hate groups,” including fairly mainstream conservative Christian organizations. This, plus her work with the ACLU, may cause one or more Democratic senators to defect. So, even though Abudu’s nomination is supported by both Georgia Senators, she may have rough sledding.

With these nominations, there are 13 remaining circuit-court vacancies that President Biden has the opportunity to fill, including a Tenth Circuit seat that has been open since March. For more on current and potential vacancies for Biden to fill, see this Volokh Conspiracy post. As I explain there, the window for the Biden administration to influence the composition of the federal courts may be closing.

Law & the Courts

This Day in Liberal Judicial Activism—December 23


1996—In Coalition for Economic Equity v. Wilson, federal district judge Thelton Henderson issues a preliminary injunction barring California officials “from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.”

Adopted by California voters in the November 1996 election, Proposition 209 provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Among other things, Henderson rules that the challengers to Proposition 209 “have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community.”

But, as a unanimous Ninth Circuit panel (in an opinion by Judge Diarmuid O’Scannlain) will observe months later in reversing Henderson:

“A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.… Impediments to preferential treatment do not deny equal protection.… That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”

Politics & Policy

Omicron Actually Undermines Government Interests in Vaccine Mandates

People arrive at city hall in protest New York City’s COVID vaccine mandate in New York City, October 25, 2021. (Eduardo Munoz/Reuters)

Omicron is exploding in the United States, likely destined to reach case levels we have yet to see during this two-year pandemic. This may seem to strengthen governments’ hands in imposing vaccine mandates. Counterintuitively, however, given the idiosyncrasies of this now-dominant variant, governments’ interest in mandating vaccinations become less compelling rather than more. That’s because vaccinations appear to do little to nothing to stop Omicron’s spread, as the chief epidemiologist of Denmark’s State Serum Institute lamented, despite President’s Biden’s claim to the contrary. Below, I propose a two-dimensional framework for assessing how compelling a government’s interest is in mandating vaccines based on the characteristics of a virus and apply it to Omicron.

This matters because whichever wave we are in the pandemic (fifth?), we are in the second wave of Covid-19-related religious-liberty litigation. The first wave was institutional, focusing on worship restrictions. This wave is individual, focusing on vaccine mandates. Three such cases have recently come before the U.S. Supreme Court with the Court refusing to hear them. Now, a fourth case is before the Court for an emergency injunction, which case involves a vaccine mandate for public-high-school students in San Diego that does not recognize religious exemptions.

Just as this new wave of religious-liberty lawsuits brings different types of plaintiffs challenging different types of government actions, so too this new wave brings an added interest espoused by governments. For the first-wave government restrictions on worship, the government interest espoused in litigation was preventing viral transmission. And as the Court recognized in Roman Cath. Diocese of Brooklyn, “Stemming the spread of COVID-19 is unquestionably a compelling interest.” That same interest is still being used by governments, now to justify vaccine mandates. However, a second interest is now being pushed by governments in support of vaccine mandates: reducing the harm the virus causes when someone get it.

These two different interests, besides not being identical, are also not equal, especially when a court gets to the compelling government interest that strict scrutiny triggers. A hypothetical illustrates this. Imagine that a virus required two vaccines. The first prevented infected individuals from spreading the virus to others. The second reduced the harm suffered by an infected individual. The government’s interest in preventing harm to others by limiting the interpersonal spread of the virus, especially if that virus is particularly harmful, is likely to be compelling (though one still must do the rest of the analysis, such as applying the interest to the particular plaintiff and looking at how other exemptions may undermine the interest).

But what about limiting the harm to an individual already affected? The government’s paternalistic attempt to protect people from themselves seems less compelling. And if that virus is not overly harmful, the government interest becomes even less compelling. In short, if people want to take on the risk of not getting vaccinated, as long as it did not pose harm to others, it’s much harder to see how the government’s interest rises to the lofty level of being classified as constitutionally compelling. If that alone was sufficient, then governments would have a compelling interest in forcing people to exercise, eat more vegetables, and drink less soda to avoid heart disease or obesity.

This just leaves, then, the concern about spread. And even that must be qualified by the degree of harm of the virus. Take the common cold: It’s hard to see the government mustering a compelling interest in mandating vaccinations to prevent its spread given how mild it is. On the other hand, Ebola, with its drastically high mortality rate seems like an easy case for a vaccine mandate that satisfies compelling government interest if the vaccine helps prevent spread.

This leaves us with two dimensions to consider in assessing just how compelling is a government’s interest in mandating vaccines: the vaccine’s effectiveness in preventing spread of the virus and the virus’s level of harm. Conceptualizing these dimensions creates four scenarios of government interests:


Where a virus is very harmful, such as possessing a high mortality rate or a high propensity to permanently damage those who contract it, and a vaccine does an effective job at preventing the transmission of the virus, then the government’s interest in mandating such a vaccine would almost certainly be compelling. However, where a virus does little harm, like the common cold, and a vaccine is not very effective at preventing the virus’s spread, the government’s interest in mandating a vaccine is almost certainly not compelling. That leaves two middle areas where a government’s interest in forcing the unwilling to get vaccinated may or may not be “interests of the highest order”: a dangerous virus but an ineffective vaccine and a relatively harmless virus but an effective vaccine.

Where does Omicron fit into this framework? It is still early given the variant only emerged last month, but we do have some initial data — as much data as governments are relying on to take actions such as shutting down schools or imposing travel bans as governments claim to “follow the science.”

How does Omicron measure on the vaccine-effectiveness dimension? Terrible, at best. In short, a recent study showed that the four common two-dose or one-dose vaccinations have little to no effect on reducing transmission, with one study estimating “vaccine effectiveness against symptomatic infection” at “between 0% and 20% after two doses” of Pfizer and AstraZeneca (the former being the only vaccine that minors are approved to take). Another study found that the J&J vaccine “produced virtually no antibody protection against the omicron coronavirus variant.” As a third new study determined, this one out of Columbia University, Omicron is “markedly resistant” to the vaccines. And CNN’s Chris Cillizza just admitted, “The reality is — and has always been even if I didn’t realize it — that the vaccines don’t, really, prevent you from getting the virus.” That appears particularly true with Omicron. (Even with the Delta variant, the Pfizer vaccine, for example, only lowered the chances of transmission by a mere 15 percent for about three months compared to the unvaccinated, after which there was no difference). Furthermore, though somewhat irrelevant to current vaccine mandates, according to these studies boosters also don’t seem to do much, though perhaps some, to stop the spread of Omicron. Also, besides transmissibility, vaccinations aren’t very effective in preventing re-infection, with Omicron over five times more likely to lead to reinfection compared to Delta. In sum, it appears just about everyone is going to get Omicron sooner or later, regardless of their vaccination status.

The good news is that Omicron appears to be milder based on initial infections in South Africa, Denmark, and New York City, though the usual caveats that it’s early still apply. Two initial studies, one out of South Africa and the other out of Scotland indicate Omicron is milder than the Delta variant, with an up to 80 percent reduction in the need for hospitalization, making Omicron more like a case of the common cold than a consistent killer, at least compared to earlier variants of Covid-19. And vaccinations may play a role here, tempering the harm of the virus once infected.

How does pre-Omicron Covid-19 compare to other infectious diseases? About 40 percent of infected persons experience no symptoms. Johns Hopkins University calculates the Covid-19 fatality rate in the United States at 1.6 percent. While this is higher than the mortality rate of the flu, it pales in comparison to the mortality of diseases such as polio (15-30 percent in adolescents and adults, 2-5 percent in children), smallpox (30 percent), and Ebola (25-90 percent fatality rate). (That is not to say people without religious-liberty objections should seriously consider getting vaccinated against Covid-19 — I did and would encourage others to do so as well.)

Putting it all together, Omicron now is the nation’s dominant Covid-19 variant, with Omicron being on the milder side and mostly resistant to current vaccines as far as preventing spread goes. This places Omicron in the lower-left quadrant on the conceptual framework above. It’s hard to believe that governments have an interest in forcing unwilling individuals to violate their constitutionally enumerated rights via unwanted vaccinations when those vaccinations do little to nothing to prevent spread, much less a compelling interest.

Should a new variant emerge that becomes dominant and that differs as to harm and transmissibility in the face of current vaccines, or better vaccines are produced, then the analysis would change. Governments are more likely to have a compelling interest as to vaccine mandates when they have a magic bullet, but not when they are shooting blanks.

Law & the Courts

Justice Sotomayor’s Unprecedented Pro-Abortion Rhetoric


In her recent dissent in the Texas Heartbeat Act case (Whole Woman’s Health v. Jackson), Justice Sotomayor on six separate occasions uses the euphemism abortion care. Indeed, she even once refers to abortion providers as “abortion care providers.” According to my research assistant, the term abortion care has been used only twice before in Supreme Court opinions—both times by Sotomayor earlier this year, first in her dissent in FDA v. ACOG and then in her dissent from the Court’s September 1 order in Whole Woman’s Health v. Jackson.

In that same recent dissent, Sotomayor invokes the supposed “constitutional guarantee” of “a pregnant woman’s right to control her own body.” That rhetoric, which elides the fact that an unborn child is not part of the “pregnant woman’s … own body,” has apparently never before been used by a Supreme Court justice.

Similarly, Sotomayor speaks in that same dissent of women “exercising their constitutional right to choose,” without recognizing that, outside the realm of political sloganeering, the infinitive to choose requires a direct object (to choose what?). There have been other instances in which a justice has referred to a “constitutional right to choose …,” but in every previous instance except one the justice has included a direct object in the phrase (e.g., “constitutional right to choose abortion”). In the one exception, Justice Stevens referred to a “constitutional right to choose to have an abortion” a mere two sentences before using the truncated “constitutional right to choose.”

(As in the first paragraph, I’m relying in the second and third paragraphs on the findings of my research assistant.)

Law & the Courts

This Day in Liberal Judicial Activism—December 21


2007—At a hearing on a settlement agreement requiring New York City to establish policies that prohibit racial profiling, federal district judge Shira Scheindlin encourages plaintiffs to file a new lawsuit against the NYPD’s stop-and-frisk policies, outlines the basis for such a suit, declares that she would make sure the suit gets assigned to her, and assures the plaintiffs that she would rule in their favor in their effort to obtain documents they sought.

Nearly six years later, after Scheindlin has used similar measures to seize control of nearly all cases challenging the stop-and-frisk policies and has made a series of public statements responding to criticism of her actions, a Second Circuit panel will rule (in Ligon v. City of New York) that she has so badly damaged the appearance of impartiality that she must be removed from any further role in such cases.

Law & the Courts

The Sixth Circuit Allows Vaccine Mandate Power Grab


On Friday, the Court of Appeals for the Sixth Circuit dissolved a stay of the COVID-19 Vaccination and Testing Emergency Temporary Standard (ETS) issued by the Occupational Safety and Health Administration (OSHA). The ETS, initially scheduled to become effective January 4, requires companies with 100 or more employees to require workers to be vaccinated or wear a mask and submit to weekly tests. Not surprisingly, lawsuits challenging this mandate arose in several jurisdictions. The Fifth Circuit had issued the stay before a multi-circuit lottery procedure to consolidate the various petitions landed the multidistrict litigation in the Sixth Circuit.

The three-judge panel of the Sixth Circuit was split 2–1 with Judges Julia Gibbons (a George W. Bush appointee) and Jane Stranch (an Obama appointee) finding the ETS to fall within OSHA’s statutory authority and Judge Joan Larsen (a Trump appointee) in dissent. This is a disappointment as a matter of basic statutory construction. It also flouts the separation of powers.

The majority cloaked its opinion in judicial modesty—the notion that courts should not decide health policy. That was a red herring as the problem really is the unlawful overreach of the executive branch. As Larsen wrote in her dissent, the question “whether Congress authorized the action the agency took” is “the bread and butter of federal courts.”

The Administrative Procedure Act created notice-and-comment requirements that require federal agencies to provide public notice of a proposed rule and to receive public comment before the rule is adopted. The relevant statute authorizes OSHA to issue an ETS, bypassing the usual rulemaking process, when (1) “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” and (2) an “emergency standard is necessary to protect employees from such danger.”

OSHA’s statutory authority is limited to within the walls of the workplace. A pandemic is not, of course, uniquely a condition of the workplace. The risk it presents exists everywhere—at homes, schools, grocery stores, etc. The threat is no more “grave” the day before someone enters or the day after someone quite the workforce. Yet here workers are required to vaccinate themselves against a threat found everywhere—or be subject to constant testing—in order to remain employed.

Neither is such an overbroad measure “necessary” to curing the ill. OSHA did not attempt to distinguish between more and less vulnerable workers or aim at particular kinds of workplaces that posed the greatest risk of Covid exposure. The operative statute even laid out the need to “give due regard” for “particular industries” and categories of “workplaces or work environments” that require standards. The failure to make any risk assessment underscores the inappropriateness of issuing the rule as an emergency standard, as does the agency’s timetable. As Larsen put it, “the agency’s claim of emergency rings hollow” when it “waited nearly two years since the beginning of the pandemic and nearly one year since vaccines became available” to issue its mandate without “explor[ing] more finely tuned approaches.”

Moreover, an ETS of this scope is unprecedented. OSHA issued an ETS on nine occasions prior to the current pandemic, in each case addressing problems that distinctively affected particular industries. Yet even most of those were challenged in court, with only one surviving the challenge. Indeed, earlier this year in Alabama Association of Realtors v. Department of Health and Human Services, the Supreme Court described “the sheer scope of the CDC’s claimed authority” to issue far-ranging pandemic measures as “breathtaking,” and it concluded that the government’s claim was “virtually certain” to fail on the merits. Congress must speak clearly before an agency may exercise power of “vast economic and political significance.” In the absence of any limiting principle, the OSHA mandate violates the non-delegation doctrine, an important component of the separation of powers. Congress cannot cede its constitutional authority to legislate to the executive branch.

While neither the Sixth Circuit majority nor the dissent explored the behavior of the principal political actors behind the OSHA mandate, it is worth mentioning this broader context. In September, President Biden had announced he was “frustrated” and losing “patience” with those he could not convince to become vaccinated. He wanted to find a “work-around” rather than rely on a scientific determination about workplace safety. As the Fifth Circuit noted in its opinion on the subject last month, White House Chief of Staff Ron Klain endorsed such a course via retweet: “OSHA doing this vaxx mandate as an emergency workplace safety rule is the ultimate work-around for the Federal govt to require vaccinations” (emphasis added by the court).

An ETS is subject to less deferential review by courts than the “arbitrary and capricious” standard. But even if the bar of judicial scrutiny were lower, such a mindset is consummately arbitrary behavior. A number of emergency applications to the Supreme Court are now pending. Let us hope the Court reverses the Sixth Circuit and reinstates the stay.

Law & the Courts

Ruth Marcus Sabotages Her Own Case Against Court-Packing


In a Washington Post op-ed, Ruth Marcus sabotages her own case against Court-packing by concocting a false claim that the Senate’s handling of the Scalia vacancy in 2016 and of the Ginsburg vacancy in 2020 “gravely violated norms.” The nomination of Merrick Garland to fill the Scalia vacancy was, she asserts, “cut off far too soon in the political cycle,” while the nomination of Amy Coney Barrett to replace Ginsburg was supposedly “hustled through far too late.” The Court’s “current membership is in place illegitimately,” she contends, and “is behaving in a dangerous, even radical, manner.”

1. Marcus offers no argument in support of her claim that the Senate “violated norms”—much less did so “gravely”—in either instance, and her claim cannot withstand scrutiny.

a. Let’s start with the vacancy resulting from Scalia’s death in February 2016.

The prospect that a Senate controlled by the opposite party of the president would not act on a Supreme Court confirmation to a vacancy arising in an election year had long been baked into the process:

— Way back in 1992, a fellow named Joe Biden, then chairman of the Senate Judiciary Committee, gave a long floor speech in which he warned President George H.W. Bush that if a Supreme Court vacancy were to arise while the “political season [i.e., presidential campaign] is underway,” Bush should not nominate anyone to the vacancy until after the election. Biden further stated that if Bush were to ignore that advice, the Senate Judiciary Committee should “seriously consider not scheduling” a hearing until after the election.

— As this Politico article reported, in July 2007—more than 15 months in advance of the 2008 presidential election—Democratic senator Chuck Schumer, “a powerful member of the Democratic leadership,” told an American Constitution Society convention that the Senate “should not confirm another U.S. Supreme Court nominee under President Bush ‘except in extraordinary circumstances.’”

— In the immediate aftermath of the 2016 election, Kathryn Ruemmler, who served as President Obama’s White House counsel from June 2011 to June 2014, candidly acknowledged that if the political roles had been reversed—if, that is, a Supreme Court vacancy had arisen in an election year in which the president was a Republican and the Senate was controlled by Democrats—she would have recommended that Senate Democrats take exactly the same course (no hearings, no vote) that Senate Republicans took on the Scalia vacancy.

Nor did the history before 1992 ever establish the norm that Marcus posits. As Dan McLaughlin sums it up: “In all of American history, only one Supreme Court nominee in a presidential election year was confirmed before the election by a Senate of the opposing party”—in 1888. (Please don’t cite Anthony Kennedy: he was nominated in November 1987 to the vacancy that arose the previous July and to which Robert Bork was unsuccessfully nominated. After the Bork defeat, Senator Patrick Leahy threatened to refuse hearings on any Supreme Court candidate until after the 1988 elections, unless President Reagan nominated someone acceptable to Leahy.)

In short, there was no norm that called for the Republican-controlled Senate to act on the Garland nomination.

If any further legitimizing of Justice Gorsuch’s appointment were somehow needed, the fact that Donald Trump ran and won election on his commitment to fill the Scalia vacancy with a constitutional conservative would amply provide it.

b. Marcus’s claim that Senate Republicans violated some supposed norm in confirming Barrett to the Ginsburg vacancy is also wrong. Dan McLaughlin demolished such a claim in August 2020 (a month before Ginsburg’s death):

Historically, throughout American history, when their party controls the Senate, presidents get to fill Supreme Court vacancies at any time — even in a presidential election year, even in a lame-duck session after the election, even after defeat….

Nineteen times between 1796 and 1968, presidents have sought to fill a Supreme Court vacancy in a presidential-election year while their party controlled the Senate. Ten of those nominations came before the election; nine of the ten were successful….

Nine times, presidents have made nominations after the election in a lame-duck session. These include some storied nominations, such as John Adams picking Chief Justice John Marshall in 1801 and Abraham Lincoln selecting Chief Justice Salmon P. Chase in 1864. Of the nine, the only one that did not succeed was Washington’s 1793 nomination of William Paterson, which was withdrawn for technical reasons and resubmitted and confirmed the first day of the next Congress (Paterson had helped draft the Judiciary Act of 1789 creating the Court, and the Constitution thus required his term as a senator to end before he could be appointed to the Court). Two of Andrew Jackson’s nominees on the last day of his term were confirmed a few days later, without quibbles. In no case did the Senate reject a nominee or refuse to act on a nomination; why would they?…

The bottom line: If a president and the Senate agree on a Supreme Court nominee, timing has never stopped them. By tradition, only when the voters have elected a president and a Senate majority from different parties has the fact of a looming presidential election mattered. When there is no dispute between the branches, there is no need to ask the voters to resolve one.

In sum, the membership of the Court is in place legitimately, and it is reckless and destructive—especially for a self-described “instinctive institutionalist” like Marcus—to allege otherwise.

2. As evidence for her claim that the Court is “behaving in a dangerous, even radical, manner,” Marcus cites the Court’s ruling in the Texas abortion case and “the prospect of even more constitutional upheaval ahead” in Dobbs v. Jackson Women’s Health Organization. On the Texas abortion case, I will happily stand with liberal Yale law professor Akhil Amar and the justices in the majority rather than with Marcus and the dissenters. As for Dobbs, Marcus seems oblivious to the reality that it is Roe v. Wade more than anything else that ignited the modern confirmation wars and that it is the fully warranted overturning of Roe in Dobbs that would be an excellent first step in bringing those wars to an end.

3. Marcus’s false claims fuel the Court-packing cause that she says she opposes. Indeed, all too predictably, her colleague E.J. Dionne Jr., barely a day later, wrote his own response to Marcus, reciting the same false assertions that Senate Republicans had failed to “observe[] the long-standing norms surrounding appointments.”