Law & the Courts

This Day in Liberal Judicial Activism—March 22

(Molly Riley/Reuters)

1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.

Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.”

Law & the Courts

This Day in Liberal Judicial Activism—March 21

The U.S. Supreme Court in Washington, D.C., January 20, 2018 (Reuters/Joshua Roberts)

2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury.

The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there is no real constitutional violation here anyway.”

2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.)

Law & the Courts

This Day in Liberal Judicial Activism—March 19

(Yuri Gripas/Reuters)

1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college.

In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

Law & the Courts

This Day in Liberal Judicial Activism—March 18

(Reuters photo: Carlos Barria)

1963—As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day.

In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected.

Law & the Courts

This Day in Liberal Judicial Activism—March 17

The building of the U.S. Supreme Court is seen after it granted parts of the Trump administration’s emergency request to put his travel ban into effect immediately while the legal battle continues, in Washington, U.S., June 26, 2017. REUTERS/Yuri Gripas – RC180FFDF7A0

1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”

2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”!

Law & the Courts

Happy St. Patrick’s Day!

In celebration of tomorrow’s Feast of St. Patrick, here is an excerpt from Scalia Speaks, from a speech (“Italian View of the Irish”) on the many appealing qualities of the Irish that Justice Scalia delivered to the Society of the Friendly Sons of St. Patrick in New York City on St. Patrick’s Day in 1988:

Another characteristic of Homo hibernicus—I know you would be annoyed if I did not mention it—is quickness of intellect. Now I must admit that on this point you Irish may be better judges of yourselves than an outsider like me would be. Because the Irish have all sorts of ways of seeming to be knowledgeable when they are not. One, of course, is lying. Any other group would take offense at that—but I am sure that this gathering will proudly agree that nobody in the world can tell a glorious, toweringly false tale as well as an Irishman.  An Italian lie is often more subtle and deceptive more likely to be believed. But if it is not believed, it is seen as a sneaky, unworthy, disreputable thing. The wonderful thing about a proper Irish lie is that it does not matter if it is believed.  It is such a bold, courageous, imaginative invention that, even when you see through it, you are so impressed with the quality of mind that could concoct such nonsense that it is impossible to have anything but admiration for the author. That is the great strength of the Irish lie: It does not matter whether it is believed or not.

Law & the Courts

Nashville and Houston Events on Scalia Speaks

In addition to a lunchtime event on Monday at a leading D.C. law firm, I’ll be traveling to Nashville and Houston next week for five Scalia Speaks events:

On Tuesday, March 20, at lunchtime, I’ll be at Vanderbilt for an event sponsored by the law school’s Federalist Society chapter.

On Tuesday evening, I’ll speak to the Nashville lawyers chapter of the Federalist Society.

On Wednesday, March 21, at lunchtime, I’ll discuss the book with the Houston lawyers chapter of the Federalist Society.

That evening, I’ll speak to the Thomas More Society of Galveston-Houston.

And on Thursday, March 22, at lunchtime, I’ll address the Federalist Society’s student chapter at the South Texas College of Law. (Contrary to what the link says, the event is at 1:00 local time.)

Law & the Courts

This Day in Liberal Judicial Activism—March 15

(Molly Riley/Reuters)

1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

2016—No plaintiff? So what?

Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.”

On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.”

Law & the Courts

This Day in Liberal Judicial Activism—March 14

2011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism:

It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia.

Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas.

Law & the Courts

This Day in Liberal Judicial Activism—March 13

(Gaston De Cardenas/Reuters)

1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violates the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

Law & the Courts

Judicial Nominations Update


Earlier this week the Senate confirmed three district judges, bringing the total number of President Trump’s judicial nominees confirmed to 29.

On Wednesday, the Senate Judiciary Committee held a nominations hearing for John Nalbandian, President Trump’s nominee to the U.S. Court of Appeals for the Sixth Circuit. If confirmed, Mr. Nalbandian would be the second Asian Pacific American to serve on the Sixth Circuit, and the seventh active Asian Pacific American federal appellate judge in the nation.

In her opening remarks during the hearing, Democratic Ranking Member Senator Mazie Hirono praised the White House for the numerous conversations and meaningful consultation that she and Senator Brian Schatz had over the last few months regarding President Trump’s judicial nominees from Hawaii.

Here is this week’s full update on federal judicial nominations.

Current and known future vacancies: 178

Courts of Appeals: 25

District/Specialty Courts*: 153

Pending nominees for current and known future vacancies: 57

Courts of Appeals: 10

District/Specialty Courts: 47

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination Date Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Ryan Bounds (9th) 9/7/2017 183 No Not yet scheduled
Andrew Oldham (5th) 2/15/2018 22 No Not yet scheduled
Michael Scudder (7th) 2/15/2018 22 No Not yet scheduled
Amy St. Eve (7th) 2/15/2018 22 No Not yet scheduled
Mark Bennett (9th) 2/15/2018 22 No Not yet scheduled

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date
Joel Carson (10th) 12/20/2017 79 2/14/2018
John Nalbandian (6th) 1/24/2018 44 3/8/2018

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported out of Senate Judiciary Committee
Kyle Duncan (5th) 10/2/2017 158 1/18/2018
Kurt Engelhardt (5th) 10/5/2017 155 2/8/2018
Michael Brennan (7th) 8/3/2017 218 2/15/2018

 Nominees Awaiting Floor Votes: 28

Courts of Appeals: 3

District/Specialty Courts: 25

Nominees Confirmed by the Senate: 29

Supreme Court: 1

Courts of Appeals: 14

District/Specialty Courts: 14

Law & the Courts

Bay Area Events on Scalia Speaks

I will be in the Bay Area next week for four Scalia Speaks events as well as for law professor Michael McConnell’s Honorable J. Clifford Wallace Lecture next Monday evening on “The Ups and Downs of Religious Freedom.” (It was my great honor to clerk for Judge Wallace at the outset of my legal career, and I am looking forward to catching up with him and other members of the Wallace clerk family.)

On Tuesday, March 13, I will discuss Scalia Speaks at a lunchtime event sponsored by the Berkeley law school chapter of the Federalist Society.

On Tuesday evening, I have a dinner event with the San Francisco lawyers chapter of the Federalist Society.

After a private event in San Francisco midday on Wednesday, March 14, I will join the Silicon Valley lawyers chapter for a dinner event.

Law & the Courts

This Day in Liberal Judicial Activism—March 9

Outside the New York Times building in Manhattan. (Carlo Allegri/Reuters)

1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan.

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas).

1983—In Community for Creative Non-Violence v. Watt, the en banc D.C. Circuit rules, by a 6-5 vote, that the First Amendment bars the National Park Service from applying its anti-camping regulations to demonstrators who, as part of their protests on behalf of the poor and the homeless, sought permission to sleep in Lafayette Park. The six justices in the majority divide among four separate opinions, leading Judge Malcolm Wilkey in dissent to observe that “it seems apparent that [our six colleagues] are quite sure that these appellants should be allowed to sleep in Lafayette Park, but they have had great difficulty in figuring out why.”

Judge Wilkey, in the principal dissent (for all five dissenters), opines that even on the assumption that sleeping qualifies as speech for First Amendment purposes, the anti-camping regulations may be applied. Judge Antonin Scalia (joined by Judges MacKinnon and Bork) separately dissents “flatly to deny that sleeping is or can ever be speech for First Amendment purposes.” Scalia observes: “That this should seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.”

One year later, in Clark v. Community for Creative Non-Violence, the Supreme Court will reverse the D.C. Circuit by a 7-2 vote (with—surprise!—Justices Brennan and Marshall in dissent).

Law & the Courts

This Day in Liberal Judicial Activism—March 8

1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.

Law & the Courts

This Day in Liberal Judicial Activism—March 7

Justice Anthony Kennedy (Chip Somodevilla/Getty)

2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy).

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