Law & the Courts

This Day in Liberal Judicial Activism—July 23

(Americanspirit/Dreamstime)

1971—In Calvert Cliffs’ Coordinating Committee v. Atomic Energy Comm’n, D.C. Circuit judge J. Skelly Wright enthusiastically welcomes “what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment”:

Several recently enacted statutes attest to the commitment of the government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental Policy Act of 1969. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. [Emphasis added.]

In a 1983 law-review article, then-D.C. Circuit judge Antonin Scalia will identify Calvert Cliffs as having “beg[u]n the judiciary’s long love affair with environmental litigation” and will contrast Wright’s nearly boundless conception of the judicial role with the much more modest understanding set forth in Marbury v. Madison. Further, as Scalia observes, Wright doesn’t even bother to explain what the Calvert Cliffs’ Coordinating Committee is and how it has standing to challenge the agency’s action:

From reading the opinion, one is unable to discern whether the Calvert Cliffs’ Coordinating Committee, which brought construction of the Calvert Cliffs nuclear generating plant to a halt, was composed of environmentalists, or owners of land adjacent to the proposed plant, or competing coal-generating power companies, or was even, perish the thought, a front for the Army Corps of Engineers, which is reputed to prefer dams to atoms.

Law & the Courts

This Day in Liberal Judicial Activism—July 22

(Shutterstock)

2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.

Law & the Courts

This Day in Liberal Judicial Activism—July 20

Justice William Brennan in 1972 (Library of Congress)

1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.” Five days later President Bush nominates … David H. Souter to fill Brennan’s seat.

Law & the Courts

8 Key Opinions of Judge Kavanaugh

To follow my previous post recounting eight less known aspects of his background, below are eight of Judge Kavanaugh’s most important opinions, written in cases touching on fundamental issues involving the structural Constitution, individual rights, and the activity of administrative agencies, which comprise the bulk of the federal government in the modern era.

Judge Kavanaugh’s attentiveness to the structural Constitution is captured by his opinions in the following two major separation of powers cases:

1. In PHH Corp. v. Consumer Financial Protection Bureau, 839 F.3d 1 (D.C. Cir. 2016), rev’d, 881 F.3d 75 (D.C. Cir. 2018) (en banc), the D.C. Circuit faced the question of the constitutionality of the Consumer Financial Protection Bureau authorized by Dodd Frank, which designated as its head a single director who could be removed by the president only for cause rather than at will. Judge Kavanaugh’s opinion for the panel—and later his dissent following the rehearing of the case en banc—asserted that that structure violates the Constitution’s separation of powers. As he put it in his panel opinion, the unique structure of the CFPB “lacks the critical internal check on arbitrary decisionmaking, and poses a far greater threat to individual liberty than does a multi-member independent agency.” The D.C. Circuit did not have the final say on this issue as just last month, a federal district judge in New York declined to follow the en banc court and expressly agreed with Kavanaugh on the unconstitutionality of the CFPB’s structure.

2. Judge Kavanaugh dissented from the court’s rejection of constitutional challenges to the structure of the Sarbanes Oxley-authorized Public Company Accounting Oversight Board in Free Enterprise Fund v. PCAOB, 537 F.3d 667 (D.C. Cir. 2008), aff’d in part, rev’d in part, 561 U.S. 477 (2010). He argued that the statutory two-layered for-cause limitation on the removal of board members violated the president’s removal power and additionally that the board members could not be deemed inferior officers under Article II’s Appointments Clause. On appeal, the Supreme Court agreed with Kavanaugh on the removal issue and even quoted his analysis at length in its opinion.

Judge Kavanaugh’s opinions have been protective of free speech and the freedom of religion regardless of the viewpoints involved, as exemplified in two cases involving organizations on opposite sides of the political spectrum:

3. In Emily’s List v. FEC, 581 F.3d 1 (D.C. Cir. 2009), Emily’s List, an organization that promotes abortion rights and supports pro-choice female Democratic candidates, challenged FEC regulations that placed restrictions on how nonprofit organizations could raise money and spend it in advocating for their cause. Judge Kavanaugh wrote the panel opinion ruling in favor of Emily’s List and striking down the regulations under the First Amendment—and holding several regulations to be invalid on statutory grounds as well.

4. In Priests for Life v. HHS, 808 F.3d 1 (D.C. Cir. 2015), Judge Kavanaugh issued a lengthy dissent from denial of en banc review following the D.C. Circuit’s rejection of a challenge to the Department of Health and Human Services’ contraception mandate brought under the Religious Freedom Restoration Act by a Catholic archbishop and affiliated nonprofit organizations. He received a significant measure of vindication when the Supreme Court heard the appeal and vacated the D.C. Circuit’s judgment in Zubik v. Burwell, 136 S. Ct. 1557 (2016).

Note as well Judge Kavanaugh’s farsighted opinions on the Second and Fourth Amendments, which display both his judicial craftsmanship and his solicitousness regarding individual rights:

5. In a sequel to the landmark Supreme Court Second Amendment decision in District of Columbia v. Heller, 554 U.S. 570 (2008), the District of Columbia adopted a ban on firearms designated as “assault weapons” and magazines with a capacity of more than ten rounds of ammunition, along with new gun registration requirements, and Dick Anthony Heller returned to challenge the new restrictions. By a vote of 2–1, a panel of the D.C. Circuit upheld the law in Heller v. District of Columbia, 670 F.3d 1244 (D.C. Cir. 2011). Judge Kavanaugh dissented in a 27-page opinion that maintained the new law violated the Second Amendment. Justice Thomas would cite Kavanaugh’s Heller dissent in his own dissents from the Court’s denial of certiorari in two other Second Amendment cases: Jackson v. City & County of San Francisco, 135 S. Ct. 2799 (2015), where he was joined by Justice Scalia, and Silvester v. Becerra, 138 S. Ct. 945 (2018).

6. In United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010), Judge Kavanaugh dissented from denial of en banc review of a panel opinion in a case involving the government’s warrantless use of a GPS device to track the movements of a vehicle for approximately four weeks. While the panel had held the government’s actions to constitute a Fourth Amendment violation, it did so employing what Kavanaugh considered a dubious argument without considering a different, property-based theory, one grounded in the original understanding of the Fourth Amendment, challenging the police’s installation of the device on the vehicle. Kavanaugh asserted that that issue merited review by an en banc panel even though the government would not necessarily prevail on that argument. The Supreme Court subsequently granted certiorari and vindicated his dissent when, in an opinion by Justice Scalia in United States v. Jones, 565 U.S. 400 (2012), it decided the case—against the government—on precisely the issue Judge Kavanaugh maintained needed to be considered.

Picking up on our recent discussion of Judge Kavanaugh’s evenhandedness on administrative law matters, which occupy the largest portion of his docket, here are two key cases in which he looked past politically contentious issues to employ a sober application of the law:

7. In United States Telecom Ass’n v. FCC, 855 F.3d 381 (D.C. Cir. 2017), he dissented from denial of en banc review of the FCC’s net neutrality rule, arguing that the rule was both an unlawful assertion of agency power absent clear congressional authorization and that it violated the First Amendment. This case presented an occasion for him to voice his skepticism of the level of deference courts give agencies under the Chevron doctrine. The FCC was not given the statutory authority to regulate the internet like a public utility, he maintained, so deference to the agency was unwarranted: “If an agency wants to exercise expansive regulatory authority over some major social or economic activity . . . an ambiguous grant of statutory authority is not enough.”

8. In In re Aiken County, 725 F.3d 255 (2013), reh’g en banc denied, 2013 U.S. App. LEXIS 22003 (D.C. Cir. Oct. 28, 2013), he wrote the panel opinion granting a petition for mandamus compelling the Nuclear Regulatory Commission to process the Department of Energy’s application for a nuclear storage facility at Yucca Mountain, a project opposed by the Obama administration, because the Nuclear Waste Policy Act required it. Signaling his unwillingness to defer to any administration that does not heed its obligation to enforce the law, Kavanaugh asserted that “the President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”

Given how rarely the Supreme Court grants certiorari, it is remarkable that several of these cases reached the Supreme Court and that every time they did, Judge Kavanaugh’s dissenting position was vindicated. Truly an extraordinary record for any lower court judge.

Law & the Courts

How Much Power Are Unelected Judges Supposed to Have?

Chief Justice John Roberts (seated, center) leads Justice Ruth Bader Ginsburg (front row, left to right), Justice Anthony Kennedy, Justice Clarence Thomas, Justice Stephen Breyer, Justice Elena Kagan (back row, left to right), Justice Samuel Alito, Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch in taking a new family photo including Gorsuch, their most recent addition, at the Supreme Court building in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)

Picture the U.S. Senate in session, debating one of the president’s nominations.

One senator wants to know whose side the nominee would be on in disputes between corporate and consumer interests, between polluters and protecting the environment, or between insurance companies and average Americans. The “real issue,” he had declared earlier, is: “Will he be on the side of workers or is he going to be on the side of the bosses?”

Another senator chimes in, saying that her support would depend on whether the nominee would “stand with us and with our families or be on the side of major special interests.”

This may sound like a debate over the nominee to head, say, the National Labor Relations Board or perhaps the Consumer Financial Protection Bureau. But these comments actually arose during the debate over the 2005 nomination of John Roberts to be Chief Justice of the Supreme Court. And they expose one side in the debate over how much power judges should have.

The Left views the judicial branch as no different from the executive or legislative branches. To them, judges are supposed to “take sides,” making sure that some political interests win and others lose.

It’s a very dangerous view — one that runs counter to the way America’s Founders designed our system of government. They separated the three branches so that government power would be limited; the Left today tries to blur those boundaries so that government will be more powerful.

America’s Founders said that the judicial branch would be the “weakest” branch because judges exercise “judgment” but not “will.” Today’s Left is trying to make the judiciary the strongest branch by promoting willful judges determined to make the law they apply.

This is what the debate over the Kavanaugh nomination is all about. How much power are unelected judges supposed to have in our system of government?

The notion that the Constitution means whatever five members of the Supreme Court want it to mean is as radical as it is indefensible. It’s simply a judicial application of “might makes right,” turning our system of government on its head and making impossible the liberty that it was designed to secure.

When he became a judge on the U.S. Court of Appeals in 2006, Kavanaugh took the oath required by federal law, promising to “administer justice without respect to persons, and to do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.”

That’s one view of judicial power: Judges should be fair, impartial, and the faithful to the Constitution as written. The other view was expressed by Senate minority leader Charles Schumer (D., N.Y.) hours after President Donald Trump announced Kavanaugh’s nomination to the Supreme Court. Schumer said that Kavanaugh would have to provide “affirmative commitments” about how he will handle certain issues and cases that will come before the Supreme Court.

There you have the two sides in this debate over how much power judges should have. The judicial oath requires that they be impartial; Senate Democrats demand that they be partial. The oath requires judges to treat the poor and the rich equally; Senate Democrats demand that judges favor what they often call the “little guy.” The oath requires that judges administer justice “without respect to persons”; Senate Democrats demand that judges administer different justice to different persons.

Senators, no less than Justices, swear to uphold the Constitution. Let us hope they honor that vow as they consider the Kavanaugh nomination.

Law & the Courts

This Day in Liberal Judicial Activism—July 19

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.”

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction.

8 Things You Didn’t Know About Brett Kavanaugh

As much of the nation gets its introduction to Judge Brett Kavanaugh, who has been nominated to be the 114th justice of the U.S. Supreme Court, here are eight aspects of his background you might not have been aware of:

  1. Judge Kavanaugh has served for 12 years on the U.S. Court of Appeals for the D.C. Circuit, which is widely considered the second most significant court in the nation. Three current justices of the Supreme Court—John Roberts, Ruth Bader Ginsburg, and Clarence Thomas—served there prior to their elevation, as did former justices Warren Burger and Antonin Scalia.
  2. Both of Judge Kavanaugh’s parents attended law school while he was growing up, graduating when he was 13 years old. His father had attended law school at night while working full time. His mother went on to serve as a Montgomery County Circuit Court judge in Maryland.
  3. Judge Kavanaugh and Justice Neil Gorsuch both attended the same high school, and both clerked for Justice Anthony Kennedy during the same Supreme Court term.
  4. On at least 13 occasions, the Supreme Court has adopted positions that Judge Kavanaugh previously took in his opinions. On nine of those occasions, the Court vindicated Kavanaugh’s dissenting opinions.
  5. Judge Kavanaugh has spent most of his career serving the public and additionally volunteers to serve meals to the homeless, tutor at an elementary school, and coach his daughter’s basketball team.
  6. Judge Kavanaugh is an avid runner who has run the Boston Marathon twice in the last decade, finishing in 2010 in under four hours.
  7. Judge Kavanaugh ranks second among sitting judges for the number of law clerks who have gone on to clerk for the Supreme Court. Eight of the nine justices of the current Court (all but Ginsburg) have hired Kavanaugh clerks, as have former Justices John Paul Stevens, Sandra Day O’Connor, Scalia, and David Souter.
  8. Judge Kavanaugh has had a total of 48 law clerks over his 12 years of service on the D.C. Circuit. Twenty-five of them were women. In 2014, all four of his clerks were women—a first for any judge on the D.C. Circuit. Reacting to his nomination to the Supreme Court, all of his former clerks who are permitted by their employment to do so submitted a letter to the Senate Judiciary Committee attesting to Judge Kavanaugh’s “strength of character, generosity of spirit, intellectual capacity, and unwavering care for his family, friends, colleagues, and us, his law clerks.”
Law & the Courts

This Day in Liberal Judicial Activism—July 18

(Shutterstock)

2014—In State v. Gleason, the Kansas supreme court expressly acknowledges that the U.S. Supreme Court “has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances.” But the court nonetheless proceeds to rule that sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.”

A year and a half later (in Kansas v. Carr), the Supreme Court will reverse the Kansas supreme court by a vote of 8 to 1.

Law & the Courts

Focus On Lower Courts to Continue; New Ninth Circuit Nominee Announced

While the attention of the nation focuses on the nomination of Brett Kavanaugh to the Supreme Court, the White House and the Senate leadership are continuing their work filling the lower court vacancies across the country. Last week, President Trump announced his 16th wave of judicial nominees, which includes Eric Miller, the president’s nominee to the U.S. Court of Appeals for the Ninth Circuit.  Mr. Miller is yet another stellar nominee to the federal courts of appeals, and if confirmed Mr. Miller will be the fifth of President Trump’s circuit court judges who is a former law clerk to Justice Clarence Thomas.  My snapshot of Eric Miller appears in the following post.

Also last week, a spokesman for the Senate Judiciary Committee, Taylor Foy, told the Washington Examiner, “We don’t anticipate the [Supreme Court] vacancy will have much of an impact on our progress on lower court nominees, especially considering that the Senate will be in session for much of August.”  This is good news for the President’s pending judicial nominees: thanks to the continuing obstruction of Senate Democrats, there are currently 100 pending judicial nominees, including the most recent wave.

Demonstrating this continued to commitment to confirming circuit court judges, Senate Majority Leader Mitch McConnell has filed for cloture (to end debate) on the nominations of Andy Oldham (Fifth Circuit) and Ryan Bounds (Ninth Circuit). This procedural moves sets up confirmation votes for Oldham and Bounds later this week or early next week.  If confirmed, Oldham and Bounds will be the 23rd and 24th circuit court judges confirmed during the Trump Administration, setting a new record for most circuit judges confirmed in the first two years of a President’s term.

Law & the Courts

Who is Eric Miller?

Eric Miller is President Trump’s nominee to the U.S. Court of Appeals for the Ninth Circuit from Washington.

 Age:  44 (approximate)

Current Position:  Partner, Perkins Coie LLP (Seattle, Washington) 

Education:

  • B.A., Harvard University (majored in Physics); magna cum laude (1996)
  • J.D., University of Chicago Law School (1999); highest honors; Order of the Coif; Topics and Comments Editor, University of Chicago Law Review

Judicial Clerkships: Judge Laurence Silberman, U.S. Court of Appeals for the D.C. Circuit (1999-2000); Associate Justice Clarence Thomas, U.S. Supreme Court (2000-2001)

Professional Experience:

  • 2007-2012: Assistant to the Solicitor General, Office of the Solicitor General, U.S. Department of Justice (Washington, D.C.)
  • 2006-2007: Deputy General Counsel, Office of the General Counsel, Federal Communications Commission (Washington, D.C.)
  • 2004-2006; 2001-2003: Appellate Attorney, Civil Division, U.S. Department of Justice (Washington, D.C.)
  • 2003-2004: Attorney-Advisor, Office of Legal Counsel, U.S. Department of Justice (Washington, D.C.)

Career Notes:

  • Miller currently serves as Firmwide Chair of the Appellate Practice and Co-Chair of the Tech Amicus Practice at Perkins Coie. He has presented over 60 appellate arguments during his career, including 16 in the U.S. Supreme Court.
  • He has experience in a large range of substantive fields, including communications, energy, employment, and administrative law.
  • As Deputy General Counsel of the FCC, Mr. Miller was responsible for defending the Commission’s orders in the federal courts of appeals.
  • Miller is a part-time lecturer at the University of Washington School of Law.

Professional Associations:

  • Miller is listed as an expert for the Federalist Society, and has spoken on panels about litigation before the Supreme Court.
  • He serves as an Appellate Lawyer Representative to the Ninth Circuit and is a member of the Washington Appellate Lawyers Association.

Honors:

  • Miller has been ranked by Chambers USA in the area of Appellate Law since 2014.
  • In 2008, Mr. Miller received the Attorney General’s Distinguished Service Award for his work in national security litigation on behalf of the Department of Justice.
Law & the Courts

This Day in Liberal Judicial Activism—July 17

Illinois state senator Barack Obama in 2004. (Tim Boyle/Getty)

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

Law & the Courts

Adler: Kavanaugh “Evenhanded” in Matters of Administrative Law

Case Western University Law Professor Jonathan Adler has an op-ed in today’s New York Times detailing Judge Brett Kavanaugh’s vast experience in the area of administrative law, and his “willingness to discipline federal agencies when they go astray,” irrespective of the underlying policy issues implicated.

Adler notes that over one-third of the nearly 300 opinions that Judge Kavanaugh has authored over the last twelve years while sitting on the D.C. Circuit concern matters of administrative law, arising from litigation involving the various federal agencies.  Adler writes that the Supreme Court nominee’s opinions on the D.C. Circuit—“arguably the most influential court on matters of administrative law”— demonstrate “someone who takes administrative law principles to heart.”

Adler notes that, like President Trump’s first nominee to the Supreme Court, Justice Neil Gorsuch, “Judge Kavanaugh has expressed concerns about the Chevron doctrine, under which agencies’ interpretations of the statutes they administer may receive deference from courts.”  Like Gorsuch, “Kavanaugh believes that some courts have taken this doctrine too far and that where agency actions implicate matters of great economic or political significance, courts should pause before assuming Congress has delegated agencies power of such broad scope.”  Rather, Judge Kavanaugh once wrote that “policy is for Congress and the president to establish as they see fit in enacting statutes,” adding that the judiciary’s ‘more modest task’ is to ensure that ‘agencies comply with the law as it has been set by Congress.’”

Importantly, Adler explains that Kavanaugh’s concerns about the expansion of the administrative state are not driven by policy outcomes.  Citing to a forthcoming study examining the application of the Chevron doctrine by the lower courts, Adler observes, “Judge Kavanaugh is quite evenhanded, applying the same approach whether evaluating agency actions that could be characterized as liberal or conservative.”  With respect to the Trump Administration’s emphasis on deregulation, Adler believes that it is unlikely that a future “Justice Kavanaugh would give its initiatives an easy pass if the federal agencies in question do not do the work to demonstrate they are fulfilling their statutory and other legal obligations.”

It is this attribute—Judge Kavanaugh’s foremost dedication to the rule of law, irrespective of policy outcomes—that likens him to Justice Gorsuch, and will make Judge Kavanaugh an outstanding justice on the Supreme Court.

Law & the Courts

Fifth Circuit Blocks Outrageous Discovery Order Against Texas Catholic Conference

Last month, I called attention to an outrageous discovery order, and associated procedural shenanigans, by federal district judge David Ezra in a case in which abortion providers are challenging a provision of Texas law that would require them to bury or cremate fetal remains. In brief, in a transparent effort to punish the Catholic bishops in Texas for offering to provide free burial of fetal remains, the abortion providers subjected the Catholic bishops (who aren’t even parties to the case) to abusive discovery requests that sought to intrude on their internal communications. And Judge Ezra seemed bizarrely eager to do their bidding.

I’m pleased to report that a Fifth Circuit panel, on emergency appeal, has blocked Judge Ezra’s order. As Judge Edith Jones sums things up in her majority opinion (over a dissent), Judge Ezra’s “analysis was incorrectly dismissive of the issues raised by TCCB” (the Texas Conference of Catholic Bishops):

The court erred in determining that TCCB waived its claim of protection under RFRA. The court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here.

Here’s a longer excerpt from Judge Jones’s excellent opinion (emphasis in original):

Contrary to the district court, … the explanation of how TCCB’s activities—and the activities of any other religious institution forced to endure similar discovery—are “chilled” by enforcement of this subpoena seems self-evident. As TCCB describes, in addition to the significant cost of complying with the original subpoena (100 work hours and over $20,000 in attorney’s fees), TCCB has delayed and missed ministry opportunities; suffered in relationships with other Catholic ministries whose communications it was forced to disclose; was required to cancel internal ministry reports and training materials; TCCB bishops and staff were discouraged from engaging in other public policy activities; and Texas Catholic cemeteries were deterred from participating in the fetal remains registry. TCCB’s ability to conduct frank internal dialogue and deliberations was undermined, and not only because enforcement of the subpoena inhibits the further use of email communications. Why the district court found “chilling” but not “severe” its discovery order’s impact on TCCB’s internal email communications, in this era of instant group communication, is hard to fathom. Even more disturbing, this discovery order forces TCCB to turn over to a public policy opponent its internal communications, setting a precedent that may be replicated in litigation anywhere.

These burdens flow naturally into TCCB’s arguments for a privilege based on the structural protection afforded religious organizations and practice under the Constitution. “[I]t is easy to forget that the autonomy of religious groups . . . has often served as a shield against oppressive civil laws. To safeguard this crucial autonomy, we have long recognized that the Religion Clauses protect a private sphere within which religious bodies are free to govern themselves in accordance with their own beliefs.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 199-200, 132 S. Ct. 694, 712 (Alito, J., concurring) (citing Kedroff, 344 U.S. at 116, 73 S. Ct. at 154-55). Both free exercise and establishment clause problems seem inherent in the court’s discovery order. That internal communications are to be revealed not only interferes with TCCB’s decision-making processes on a matter of intense doctrinal concern but also exposes those processes to an opponent and will induce similar ongoing intrusions against religious bodies’ self-government. Moreover, courts’ involvement in attempting to parse the internal communications and discern which are “facts” and which are “religious” seems tantamount to judicially creating an ecclesiastical test in violation of the Establishment Clause.

In addition to joining Judge Jones’s opinion, Judge James Ho wrote a brief concurring opinion that forcefully states:

It is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case.

The First Amendment expressly guarantees the free exercise of religion—including the right of the Bishops to express their profound objection to the moral tragedy of abortion, by offering free burial services for fetal remains. By contrast, nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.

But from the proceedings below, you would think the opposite were true.

Those proceedings are chronicled in Judge Jones’s comprehensive opinion for the Court. And they are troubling. They leave this Court to wonder why the district court saw the need to impose a 24-hour mandate on the Bishops on a Sunday (Father’s Day, no less), if not in an effort to either evade appellate review—or tax the Bishops and their counsel for seeking review. They leave this Court to wonder if this discovery is sought, inter alia, to retaliate against people of faith for not only believing in the sanctity of life—but also for wanting to do something about it.

Somehow I suspect that the Fifth Circuit is going to have more errors by Judge Ezra to correct in this case.

Congratulations to the Becket Fund for Religious Liberty for its outstanding work on behalf of the Texas bishops on this appeal.

Law & the Courts

This Day in Liberal Judicial Activism—July 16

(Reuters file photo: Robert Galbraith)

2014—Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed and in which “arbitrary factors … determine whether an individual will actually be executed.”

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.

In November 2015, a Ninth Circuit panel, without reaching the substantive merits of Carney’s ruling, will reverse his order on procedural grounds.

Law & the Courts

This Day in Liberal Judicial Activism—July 15

(Shutterstock)

2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.

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