1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.
The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.
One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.
2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.
In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).
2016—At a mock hearing meant to pressure Senate Republicans to confirm whomever President Obama will nominate to the Supreme Court vacancy created by Justice Scalia’s death, law professor Geoffrey Stone panders to Senate Democrats by purporting to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee.
This is the same Stone who in 2006 urged the Senate to defeat the Alito nomination. Back then, Stone emphasized that “members of the Senate are free to reject nominees if they disagree with [the] views” the nominating president “wants represented on the Court.” Stone further argued: “If the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president’s choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work.” (Stone’s emphasis.)
2017—Playing pronoun police, the Supreme Court’s Office of the Clerk chastises two amici for using a feminine pronoun (“G.G., by her next friend and mother, Deirdre Grimm”) to refer to the respondent in the caption of their briefs. Never mind that the respondent is a biological female and that a central question in the case is whether she must nonetheless be treated as though she were male. Never mind, further, that the rule that the clerk’s office alleges amici to have violated doesn’t remotely say what the clerk’s office claims the rule to mean (namely, that “parties generally should use the case title reflected on the Court’s docket”) and that the clerk’s office hasn’t previously enforced such a meaning.
Recent years have seen many legal battles between the national Episcopal Church (and its state affiliates), on the one hand, and disassociating local congregations, on the other, over the ownership of local church real property.
In a pending certioriari petition, various disassociating local congregations in South Carolina seek the Supreme Court’s review of a South Carolina supreme court ruling adverse to them. The petition identifies a sharp split in the lower courts on how to apply governing Supreme Court precedent: seven state supreme courts (plus a federal appellate court and three intermediate state courts) on one side of the split, and eight state supreme courts on the other side.
As it happens, the Episcopal Church and some of its affiliates, back in 2010, filed their own certiorari petitions (Green v. Campbell) from an earlier ruling of the South Carolina supreme court (a ruling that the more recent ruling overruled). They argued (here quoting the petition of the affiliates, which the Episcopal Church supported) that the case “presents a frequently recurring constitutional question that has divided the state courts and that directly implicates the ownership of hundreds of millions of dollars of church property across the United States.” That petition identified the same “direct and irreconcilable conflict among the state courts” (though the split then was four state supreme courts on one side and two on the other).
Interestingly, last week the Episcopal Church and another South Carolina affiliate, represented by the same counsel as in 2010, chose notto file a response to the pending certiorari petition. In the usual course, a party declines to file a response when a certiorari petition is patently meritless. That is certainly not the case here. (On the Volokh Conspiracy, Sam Bray says “this is a cert petition the Court should grant.”) Instead, it would seem that the Episcopal Church doesn’t want to file a response because it doesn’t want to concede the existence of the very conflict—even deeper now—that it identified eight years ago and thus put in jeopardy the victory it won below.
The Court should ask the Episcopal Church to file a response.
[5:30 p.m.: I have tweaked the third and fourth paragraphs to distinguish more precisely between the Episcopal Church and its affiliates.]
Here is my revised schedule of upcoming speaking engagements. Except as otherwise noted, these relate to Scalia Speaks (the highly acclaimed, and New York Times bestselling, collection of Justice Scalia’s speeches that I’ve co-edited). If you’re interested in working in another event with me when I’m in your part of the country—whether on Scalia Speaks, judicial nominations, or any other topic—please let me know.
3/7 University of Dallas (afternoon)
3/8 SMU/Federalist Society (lunch)
3/10 Federalist Society student symposium, Georgetown (booksigning only)
3/12 UC Berkeley/Federalist Society (lunch)
3/13 San Francisco/Federalist Society (evening)
3/14 San Francisco (private event/lunch)
3/14 Silicon Valley/Federalist Society (evening)
3/19 D.C. law firm
3/20 Vanderbilt/Federalist Society (lunch)
3/20 Nashville/Federalist Society (evening)
3/21 Houston/Federalist Society (lunch)
3/21 Houston/St. Thomas More Society (evening)
3/22 South Texas College of Law/Federalist Society (lunch)
3/28 Cincinnati/Federalist Society (lunch)
3/29 Columbus/Federalist Society (lunch)
4/5 Akron/Federalist Society (lunch)
4/5 Case Western/Federalist Society (afternoon)
4/13 Baton Rouge/Federalist Society (lunch/judicial nominations)
4/14 New Orleans (American Academy of Appellate Lawyers – judicial nominations)
4/24 Kansas City/Federalist Society (lunch)
4/25 University of Missouri/Federalist Society (lunch)
4/26 St. Louis/Federalist Society (lunch)
6/4 Supreme Court Historical Society
6/7 Denver/Federalist Society (lunch)
6/7 Colorado Springs/Mountain States Legal Foundation (evening)
1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.
Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat.
2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:
I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.
Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.
Next week Congress returns from its recess and Senate Majority Leader Mitch McConnell intends to hold cloture and confirmation votes for five additional judicial nominees, including Elizabeth Branch, President Trump’s nominee to the U.S. Court of Appeals for the Eleventh Circuit. Meanwhile, the number of vacancies continues to creep up, reaching a total of 181 vacancies today (147 current vacancies and 34 known future vacancies).
Here is this week’s full update on federal judicial nominations.
Current and known future vacancies: 181
Courts of Appeals: 26
District/Specialty Courts*: 155
Pending nominees for current and known future vacancies: 62
Courts of Appeals: 11
District/Specialty Courts: 51
* Includes the Court of Federal Claims and the International Trade Court
Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings
Both Blue Slips Returned?
Judiciary Committee Hearing Date
Ryan Bounds (9th)
Not yet scheduled
John Nalbandian (6th)
Not yet scheduled
Andrew Oldham (5th)
Not yet scheduled
Michael Scudder (7th)
Not yet scheduled
Amy St. Eve (7th)
Not yet scheduled
Mark Bennett (9th)
Not yet scheduled
Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes
Judiciary Committee Hearing Date
Joel Carson (10th)
Court of Appeals Nominees Awaiting Senate Floor Votes
During the Senate Judiciary Committee’s markup last Thursday, numerous Democratic senators — including Dianne Feinstein and former Committee chairman, Senator Patrick Leahy — bemoaned the Committee’s vote to advance to the Senate floor Michael Brennan, President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit, accusing Chairman Chuck Grassley of abandoning the Senate’s blue slip tradition. That same day, Senator Feinstein tweeted, “Fact-Check: No Democratic chair of the Judiciary Committee has EVER held a hearing for a judicial nominee over the objection of a Republican senator.”
The idea that Chairman Grassley’s blue-slip policy is anything unusual is completely ahistorical, and even the Washington Post’s Fact Checker gave Senator Feinstein’s misleading tweet “Two Pinochios.” In an op-ed in yesterday’s Washington Examiner, Senator Grassley clarifies that in the 100-year history of the blue slip, only two prior chairmen required that both home-state senators return positive blue slips in order to hold a hearing for a nominee. And of these two chairmen, one of these, Senator James Eastland, was believed to have adopted a strict blue-slip policy because of his widely known segregationist beliefs. All other chairmen have followed some version of the original blue-slip policy, which is that a negative or unreturned blue slip will not automatically prevent a nominee from receiving a hearing.
In his op-ed, Chairman Grassley states his approach to the blue slip: “My policy, which is based on the policies of the vast majority of my predecessors, is that the lack of two positive blue slips will not necessarily preclude a circuit-court nominee from receiving a hearing unless the White House failed to consult with home-state senators. I am unlikely, however, to hold hearings for district court nominees without two positive blue slips.” Senator Grassley’s policy is nothing new; he has repeated his policy numerous times throughout the preceding months in op-eds, statements, and floor speeches (see his November 13, 2017, floor speech and November 15, 2018, op-ed in The Hill for examples).
As Senator Grassley explains, the Democratic minority is re-writing this history of the blue-slip policy because of the position it now finds itself in as a result of voting to eliminate the filibuster in 2013. He writes that Democrats “now argue that one senator should singlehandedly be able to stall the process before the nominees are even considered by the committee.” To this, Senator Grassley declares, “I will not allow the blue slip courtesy to be abused in this way. The blue slip is meant to encourage pre-nomination consultation, not to vest a senator with the power to block a nominee for political or ideological reasons. Whether a nominee is suitable for the federal bench is a decision for the entire Senate.”
As I tweeted last week, Senator Grassley deserves credit for standing up to this revisionist history and proceeding with hearings for highly qualified nominees, including David Stras and Michael Brennan, when the White House has consulted with home state senators — as was the practice of virtually all of the Senate Judiciary Committee chairmen who preceded him.
1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.
According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”
Two weeks ago, I criticized the USCCB’s amicus brief in Janus v. AFSCME on three grounds: First, it does not actually make a legal argument but instead is nothing more than special pleading on behalf of the supposed position of “so many bishops.” Second, it does not remotely support its claim that the American bishops have “widely held” the position that right-to-work laws in the public sector are unjust to government workers. Third, it invites the dangerous misperception that the bishops consider right-to-work laws in the public sector to violate Catholic social teaching as severely as laws imposing abortion and same-sex marriage do.
Last week, I highlighted Bishop Thomas John Paprocki’s forceful repudiation of the USCCB brief, and I separately responded to a critique of my post by the National Catholic Reporter’s Michael Sean Winters. Without engaging my responses, Winters has launched another critique in which he contends that I “seem to mistake both Catholic social doctrine and the facts of the case.” Alas, his critique is rife with errors from top to bottom.
In fairness to Winters, let me note at the outset that the two posts of mine that I link to in the preceding paragraph temporarily disappeared during NRO’s transition to a new blogging platform. So even though I had tweeted my responses to him when I first posted them, I can understand that he didn’t have them at hand when he wrote his latest and thus wasn’t in much of a position to engage my arguments. That said, I find it very odd that he didn’t contact me directly to obtain the posts. Instead, he “called over to National Review and asked why the post was taken down, but no one called me back”—and then he went ahead and wrote a critique that he knew did not engage the responses I had already made.
I’ll highlight here six large errors in Winters’s critique:
1. Contending that “Whelan seems unclear about the facts in this case,” Winters asserts that the agency fee that Mark Janus is required to pay to his public-sector union “represents his share of the costs of negotiating a contract and enforcing it, nothing more or less.” Winters seems to imagine that I think that Janus is complaining only about the political donations that his union makes. (Never mind that he doesn’t even try to quote a passage of mine that reflects such a misconception.) He further contends that the fungibility of money isn’t an issue in this case because Janus’s fee is just his share of the total amount that his union spends on “representation of the workers” and does not include the costs of the union’s political activities.
Winters is flat wrong on the fungibility point. Evidently he doesn’t realize that the union’s total expenditures on representation of employees include allocated amounts of the union’s joint and common costs of all of its operations. (See Note 3 at the end of this SEIU notice for an illustration: chargeable expenses “are allocated … based on … the allocation of personnel costs which have been determined through a time study.”) In other words, the costs of various union employees are divided between their chargeable representation work and their non-chargeable political work. Janus is thus paying part of the salaries of various union employees who engage in political activities. If he weren’t, the union would have to come up with other funds to pay their salaries. In sum, money is fungible, and Janus is being forced to subsidize political activities he objects to. (USCCB’s brief thus undercuts its fungibility argument against funding of Planned Parenthood.)
More broadly, Winters’s fairy-tale account of how the agency fee is determined ignores that the union has broad leeway to classify contestable expenditures as representational and that it is nearly impossible for an employee to obtain effective review of the union’s classifications. As the amicus brief submitted by the Competitive Enterprise Institute documents, Janus has been compelled to “associate with and subsidize political and ideological advocacy on a host of topics, many of them quite surprising” to those unfamiliar with union ways:
The labor union at issue in this case, an affiliate of the American Federation of State, County and Municipal Employees (“AFSCME”), has in the past year used agency fees to pay for advocacy on such issues as: right-to-work statutes, infrastructure spending, government privatization and contracting, the minimum wage, voter-identification laws, tax policy, immigration reform and enforcement, gun control, D.C. statehood, marijuana legalization, “racial justice,” and Supreme Court nominations, among many others. It has spent agency fees to conduct an “AFSCME FOR HILLARY” rally at its annual convention, to instruct members on political organizing and voter registration, and to organize and carry out a “direct action” against a hotel affiliated with then-candidate Donald Trump. [CEI brief at pp. 2-3; see also more extensive details and citations at pp. 5-10.]
Does Winters really not understand this everyday reality?
Winters’s fairy tale also ignores Janus’s broader argument that for public-sector unions the line between bargaining and political speech is an imaginary one.
2. Winters repeats his charge that I improperly failed to treat statements of staff bureaucrats as the positions of American bishops. I’ll restate my response: I recognize that the bishops have (unwisely, in my judgment) often delegated to unsupervised or poorly supervised staffers the authority to speak on their behalf. But I don’t accept the often highly implausible fiction that statements made by those staffers in fact reflect the considered positions of the bishops. Bishop Paprocki’s statement shows that I am right to reject this fiction.
3. Winters contends that the USCCB didn’t “run amok” on the brief and that its processes were the usual ones. If so, that might simply mean that the USCCB bureaucracy has institutionalized bad practices. Winters even goes so far as to complain that “Paprocki wants to do what Janus wants to do, overturn a group decision he did not like.” Well, insofar as the USCCB bureaucracy is purporting to present the supposed position of the bishops, it’s entirely legitimate for Bishop Paprocki to disassociate himself from a position that he rejects and to exercise his own teaching authority.
4. Winters invokes an op-ed by Bishop David Zubik of the Diocese of Pittsburgh in which Bishop Zubik asserts (in a passage that Winters endorses) that “if the Supreme Court rules that union political advocacy violates the free speech rights of someone who has agreed to do a union job, that ruling will threaten any organization that takes a stand on any issue.” Bishop Zubik somehow imagines that a ruling would threaten the ability of a Catholic institution to insist that its employees be faithful to Catholic teaching. But Zubik’s claim is a massive non sequitur, an empty assertion. The proposition that government employees have First Amendment rights not to have their employment conditioned on supporting speech they object to says absolutely nothing against the First Amendment (Free Exercise and Free Speech) rights that Catholic institutions possess.
5. In response to my argument that public-sector unions are the enemies of the Catholic church and of working families, Winters concedes my point on abortion and school choice but ignores my broader charge that the bloated salaries and pensions that public-sector unions so often extract are often at the expense of working men and women in the private sector, whether in the form of higher taxes or diminished public services.
Even on abortion, Winters tries to minimize the massive alliance between Big Labor and abortion supporters, as he contends (without deigning to offer any support for his claim) that union donations to Planned Parenthood “are for voter files, campaign organizers, and the like” (whatever that means). Never mind Big Labor’s broader support for continued government funding of Planned Parenthood. Never mind, for example, the American Federation of Teachers’ resolution declaring that it “stands with Planned Parenthood” (just one part of the convention expenses that AFT determined to be entirely chargeable to nonmembers—see CEI brief at 12-13).
6. More broadly, Winters never acknowledges that the sorry state of America’s public-sector unions must be factored into any prudential judgment about whether they deserve the bishops’ support. Pardon me for repeating myself: In Rerum Novarum, Pope Leo XIII warned Catholic workers not to join unions that “are managed on principles ill-according with Christianity and the public well-being,” and he insisted that “working men’s associations” must “look first and before all things to God” and “must pay special and chief attention to the duties of religion and morality.” In Populorum Progressio, Pope Paul VI emphasized that unions forfeit the justification for their existence when they adopt “a materialistic and atheistic philosophy” that “shows no respect for a religious outlook on life, for freedom or human dignity.”
Winters, rather than engaging this long line of Catholic teaching, instead retreats to the abstract principle that “workers have the right to organize.” One can fully embrace that principle, as I do, and also recognize that today’s public-sector unions are not the unions that Catholic teaching envisions. The difficult prudential question is not whether Catholics must support the public-sector unions in the Janus case—the answer to that ought to be an easy no—but rather whether it is even permissible for them to do so. I will happily assume that it is permissible, but the prudential case for that position rests on arguments that the USCCB, Winters, and Bishop Zubik (who seems blinded by nostalgia for the 1950s “union household” he “grew up in”) have not even begun to make.
Winters tells us at the end of this piece that tomorrow he “will return to the issue of why, as Catholics and as Americans, we should all be hoping the unions prevail in this case and why the bishops’ brief hits the nail on the head.” Let’s see if he corrects the many errors in his analysis between now and then.
Eugene Volokh, summarizing an amicus brief he has written with Will Baude, writes that in Janus v. AFSCME the Court should uphold the imposition of “agency fees” on non-members of public-sector unions, in order to defray the costs of collective bargaining from which all employees putatively benefit.
His reasoning is that on the management side of public-sector collective bargaining, expenses are paid by the extraction of funds from persons perhaps equally unwilling to contribute to the enterprise — namely taxpayers. But everyone concedes that taxes are constitutional even when used to fund activities of which taxpayers disapprove. Hence, by parity of reasoning, the state should be able to compel its own employees to contribute to unions of which they disapprove.
Volokh’s argument is too clever by half. The fact that taxpayers fund the management side of the public employer-employee relationship should be of no moment in the Janus case. Taxes are paid to fund the public interest, which in the case of schools is represented by school boards, which are typically also elected by the public (which thereby gains some leverage over how their taxes are spent). If Volokh wants to argue that teachers’ unions represent the public interest equally as much as do school boards, his argument should be for taxpayer funding of union bargaining expenses, not for the compulsory employee funding of those expenses. And then, of course, the public should elect the union officers.
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