Law & the Courts

Monopolizing the Marketplace of Ideas

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Baker Jack Phillips, decorates a cake in his Masterpiece Cakeshop in Lakewood, Colo., September 21, 2017. (Rick Wilking/Reuters)

In case you hadn’t noticed, views on free speech are changing. In the past, we defended our neighbor’s right to express views we disliked. Today, the American Booksellers Association apologizes for the “violent” act of promoting controversial books in its newsletter. In the past, we valued tolerance. Today, some cultural elites consider dissent from certain ideologies to be indefensible.

These changes have legal consequences. Those seeking to control how we think don’t stop with our jobs or social-media accounts. They enlist state power to get their way. Jack Phillips and Lorie Smith know this firsthand.

Jack is the Lakewood cake designer who declined to create a custom cake celebrating a same-sex wedding. The state of Colorado sued him. He won at the U.S. Supreme Court. After he declined a lawyer’s request to create a pink-and-blue cake celebrating a gender transition, the state sued him again. He won that, too. Now, that activist lawyer is suing Jack for the same thing.

As Lorie Smith watched Jack’s plight, she realized how things would play out. Lorie is a Denver-area website designer who started her own design business to have greater artistic freedom to choose her projects. But the same law that forced Jack to create custom cakes celebrating same-sex marriage also requires Lorie to create custom wedding websites celebrating same-sex marriage. Knowing this would violate her conscience, she asked a court to protect her First Amendment right to choose which messages she promotes.

Unfortunately, a federal appellate court ruled against her. Why? Not because she discriminates. She doesn’t. The state conceded this. And the court agreed, acknowledging that Lorie is “willing to work with all people regardless of sexual orientation.” The court also agreed that Lorie’s websites consist of speech covered by the First Amendment and that the state is forcing her to promote certain views. The end result? Colorado’s law creates a “substantial risk of excising certain ideas or viewpoints from the public dialogue.” Those ideas are Lorie’s religious ideas defining marriage to be between a man and a woman. “Eliminating such ideas is [the law’s] very purpose,” said the court.

Despite all this, the court said the state can override Lorie’s First Amendment rights and compel her to promote same-sex marriage online because those wanting to promote that view cannot obtain “services of the same quality and nature as those that” Lorie offers. Lorie somehow managed to create a “monopoly” through her one-person studio.

So let’s get this straight. Billion-dollar tech companies delete content on their websites and de-platform people from those sites every day. But a solo religious artist running her studio has become such a monopoly that the state can force her to design and publish websites promoting views that violate her convictions?

Now let’s get real. This isn’t about monopolies controlling access to services in the marketplace. This is about the government excluding dissenters from the marketplace of ideas. Even the court agreed that consumers “may be able to obtain wedding-website design services from other businesses.” There are, after all, over 77,000 web-design firms in the U.S. alone.

But apparently that’s not good enough. Mimicking certain cultural trends, Colorado officials disdain certain views on marriage, want to eradicate them, and demand that those like Lorie and Jack — religious artists and small-business owners — profess different views or lose their livelihoods. And this should be alarming whether you agree with Lorie’s and Jack’s views on marriage or not. When the state can punish speakers based on ideological disagreements and force people to speak messages they disagree with, everyone loses. That’s because the implications of this case transcend marriage. If not today, then tomorrow, when the cultural winds shift again on a different topic.

Thankfully, this court decision won’t be the last word. With the help of her Alliance Defending Freedom attorneys, Lorie has asked the U.S. Supreme Court to step in and protect the freedom of all Americans. Do we live in a free marketplace of ideas? Or do state officials have a monopoly to control the views we do and don’t express? The stakes are too great for a wrong answer.

Jonathan Scruggs, senior counsel and director of the Center for Conscience Initiatives at Alliance Defending Freedom (@Alliance Defends), represents Lorie Smith and her web-design business, 303 Creative.

Law & the Courts

On Abortion Providers’ Extraordinary Petition for Certiorari Before Judgment

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Some fuller thoughts, on top of my initial comments, on the petition for a writ of certiorari before judgment that the abortion providers challenging the Texas Heartbeat Act filed in the Supreme Court last Thursday:

1. The lead question on which the abortion providers seek the Court’s review—“whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions”—is not a question properly before the Court.

If understood as an independent question (and not just as tendentious rhetoric), that lead question is asking the Court to render an advisory opinion. In the tail end of the petition, the abortion providers ask the Court to decide whether state court clerks and state judges are proper defendants in the case. Those jurisdictional questions—which are pending before the Fifth Circuit, with oral argument in early December—will entirely dispose of the lead question. If state court clerks and state judges are proper defendants, then the lead question disappears. And if they are not proper defendants, then there is no jurisdiction to decide the lead question.

2. The sophisticated team of lawyers representing the abortion providers has used alternating tactics of stalling and racing to try to game the litigation. The certiorari petition is usefully understood in that light.

Texas legislators introduced the Texas Heartbeat Act on March 11, and Texas governor Greg Abbott signed it into law on May 19. So the abortion providers had plenty of notice to launch an immediate challenge, including a motion for a preliminary injunction. Instead, they waited nearly two months, until July 13, to file their complaint. And they waited nearly another month, until August 7, to file their motion for a preliminary injunction.

In short, a full 80 days passed between enactment of the Act and the abortion providers’ motion for a preliminary injunction. And that motion was filed just 25 days before the effective date of the Act. It seems obvious that the abortion providers’ lawyers were trying to obscure the severe jurisdictional obstacles their motion faced and to rush the district court to grant ill-considered relief.

When the district court, on August 25, denied the state defendants’ motion to dismiss on sovereign immunity grounds, their immediate appeal divested the district court of jurisdiction over them. The abortion providers then filed various “emergency” motions with the Fifth Circuit, even asking that the court vacate their own victory on the motion to dismiss.

On the afternoon of August 30, after the Fifth Circuit properly denied their motions, the abortion providers then raced to the Supreme Court. Their “emergency application” asked the Court to act before September 1 (i.e., in barely 30 or so hours) to enjoin state officials from enforcing the Act, even though the Act itself prohibits those state officials from enforcing it. The Court properly denied their request for emergency relief (though the 5-4 vote should have been unanimous).

After delaying for 80 days in filing their motion for preliminary-injunctive relief, the abortion providers are now asking the Court to leapfrog the proceedings below. What’s more, they are asking the Court to expedite consideration of their extraordinary writ for certiorari before judgment. Instead of allowing defendants the usual 30 days to respond to their petition, they have asked the Court to require a response by October 12. Not only would that give defendants only 19 days to respond, but, as the abortion providers well know, that proposed deadline is also nearly simultaneous with the date (October 13) on which defendants must file their opening briefs in the pending Fifth Circuit appeal.

The abortion providers propose that the Court consider their petition at the Court’s October 29 conference. In the event that the Court were to grant certiorari, they propose an expedited schedule of briefing on the merits a briefing that “would allow for oral argument during the Court’s December sitting” (which ends on December 8)—right when the Fifth Circuit is slated to hear oral argument. The Court’s usual rules contemplate 105 days for full merits briefing. The abortion providers’ schedule would allow only about 1/3 of that.

Given that the abortion providers delayed the litigation by 80 days in order to gain tactical advantage, the Court should look with particular disfavor on their petition.

Law & the Courts

This Day in Liberal Judicial Activism—September 27

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The U.S. Department of Homeland Security emblem. (Hyungwon Kang/Reuters)

2019—Federal district judge Ketanji Brown Jackson issues a nationwide injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. In the course of her 122-page opinion, Jackson rules that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious. On the contested question whether the APA authorizes federal courts to issue nationwide injunctions, law professor Samuel Bray condemns her shallow analysis and “imprudently intemperate” rhetoric.

In June 2020, the D.C. Circuit will reverse Jackson’s ruling. In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards, holds that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. In a separate opinion, Judge Neomi Rao determines that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge.

Law & the Courts

This Day in Liberal Judicial Activism—September 26

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The west side of the Capitol Building in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of apparent flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship. (See here for documentation.)

2013—A Second Circuit panel (consisting of one Clinton appointee, one Bush 43 appointee, and one Obama appointee) unanimously reverses senior federal district judge Jack B. Weinstein, who had ruled—in a 349-page opinion, with an additional 50+ pages of appendices—that the Eighth Amendment bars applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Unhappy over the reversal, Weinstein within hours issues an extraordinary memorandum arguing that the case “exemplifies the sometimes unnecessary cruelty of our federal criminal law.”

Weinstein, alas, badly obscures the essential facts of the case. He contends in the brief “Facts” section of his memorandum that the defendant “never produced, sold or deliberately exchanged [child] pornography.” (Emphasis added.) But according to the Second Circuit, the defendant admitted that

he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download “a ton” of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. [Emphasis added.]

The Second Circuit’s opinion also includes lots of other very ugly facts (too ugly to repeat here) that would lead very few people to conclude, as Weinstein did, that the defendant’s sentence was unjust.

2016—Federal district judge Algenon L. Marbley (of the Southern District of Ohio) issues a preliminary injunction ordering the Highland Local School District to treat an 11-year-old boy “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” Never mind that the Supreme Court had just blocked a preliminary injunction in a similar case.

Marbley’s reasoning is laced with errors. For example, on the plaintiff’s Equal Protection claim, he races to find that “transgender status is a quasi-suspect class” subject to heightened scrutiny, but never stops to notice that a bathroom policy that is based on biological sex does not classify on the basis of transgender status.

Law & the Courts

This Day in Liberal Judicial Activism—September 25

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

1979–Taking advantage of its (and the House’s) massive increase in the number of judgeships a year earlier, the Democrat-controlled Senate confirms on a single day 25 of President Jimmy Carter’s judicial nominees, seven to appellate judgeships and eighteen to district judgeships.

Law & the Courts

More Hijinks from Liberal Sixth Circuit Judges

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In a quiet order on Monday, Justice Kavanaugh granted the state of Ohio’s unopposed application to recall and stay the Sixth Circuit’s mandate to grant habeas relief to August Cassano on his conviction and sentence to death for murdering a fellow prisoner in 1997.

Why, you might wonder, did Ohio have to go to the Supreme Court for this relief when Cassano himself did not oppose it? Two reasons: Judge Eric Clay and Judge Bernice Donald.

In a divided panel opinion in June (in Cassano v. Shoop) that reversed the district court, Clay and Donald combined to rule that Cassano was unconstitutionally deprived of his right to represent himself in his murder trial. They “conditionally” granted Cassano’s petition for a writ of habeas corpus, unless Ohio retries him Judge Eugene Siler, in dissent, objected that Cassano had not clearly, unequivocally, and timely invoked his right (as Supreme Court precedent requires) and further that the Ohio supreme court did not unreasonably conclude that Cassano had failed to invoke his right (as required by the standard for federal habeas relief under AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996).

On August 26, the Sixth Circuit denied en banc review, over powerful dissents by Judge Richard Griffin and Judge Amul Thapar. (See pp. 34-46 of this Appendix.)  Griffin notes that “the Supreme Court has reversed us twenty-two times for not applying the deference to state-court decisions mandated by AEDPA” and that twelve of those reversals “were by per curiam decisions on petitions for writs of certiorari.” It’s a safe bet that Cassano will add to both totals.

On August 27, Ohio moved to stay the Sixth Circuit’s mandate pending its filing of a certiorari petition in the Supreme Court. A stay would cause no harm to Cassano, who is serving a life sentence for a previous murder. But issuance of the mandate would start the six-month clock on a retrial of Cassano and thus would require Ohio to start devoting resources to prepare for a retrial that would not have to take place at all in the likely event that the Supreme Court would grant Ohio’s certiorari petition some months from now and ultimately reverse.

Clay and Donald denied Ohio’s request for a stay and its unopposed motion to reconsider the denial of the stay. So Ohio had to go to the Supreme Court to get the elementary relief that Clay and Donald did not provide, even though Cassano did not oppose it.

Law & the Courts

This Day in Liberal Judicial Activism—September 24

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President Bill Clinton speaks in the briefing room of the White House, June 16, 1998. (Gary Cameron/Reuters)

1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population.

Law & the Courts

Abortion Providers File Extraordinary Petition for Certiorari Before Judgment

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The abortion providers challenging the Texas Heartbeat Act currently have their case pending in the Fifth Circuit, with oral argument on jurisdictional issues scheduled (I’m told) for the week of December 8. But they have just filed in the Supreme Court an extraordinary petition for a writ of certiorari before judgment, asking the Court to jump past both the district court and the Fifth Circuit to decide the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

A couple of initial comments:

1. The abortion providers contend that “[o]nly [the Supreme] Court’s immediate intervention will ensure that Texans’ federal constitutional rights are protected.” But the Department of Justice, with much fanfare, has filed its own lawsuit against Texas over the Texas Heartbeat Act. The federal district judge in the DOJ case has scheduled a hearing on DOJ’s motion for a preliminary injunction for next Friday, October 1.

If my quick review is correct, the abortion providers make no mention of that lawsuit, other than to draw on various of the declarations that DOJ filed.

Do the abortion providers believe that DOJ’s lawsuit will surely fail? If so, why? If not, doesn’t that cut strongly against the extraordinary intervention that they seek from the Court?

2. When the Supreme Court denied the abortion providers’ previous application for emergency relief, the per curiam majority observed that their application “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Nothing has changed on that score. So why should the Court grant certiorari? Why not benefit from the Fifth Circuit’s consideration of those antecedent questions?

Law & the Courts

Ninth Circuit Dislodges Homelessness Czar’s Seizure of Power

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Back in April, I highlighted an “astounding” ruling by federal district judge David O. Carter that ordered the City of Los Angeles and the County of Los Angeles to take a broad set of actions to address the area’s homelessness crisis, including requiring the city to place one billion dollars in escrow under Carter’s supervision. In a ruling today (in LA Alliance for Human Rights v. County of Los Angeles), a unanimous panel of Ninth Circuit judges, all of whom were appointed by President Obama, has rejected Carter’s effort to appoint himself homelessness czar.

In her opinion for the panel, Judge Jacqueline Nguyen observes that Carter’s order “is premised on [his] finding that structural racism … is the driving force behind Los Angeles’s homelessness crisis.” But whether or not that is so, “none of Plaintiffs’ claims is based on racial discrimination, and the district court’s order is largely based on unpled claims and theories.” Further, the plaintiffs “failed to put forth evidence to establish standing,” and Carter “impermissibly resorted to independent research and extra-record evidence.”

Law & the Courts

Infra-DIG Diversion Gambit in Dobbs

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Infra dig (from the Latin infra dignitatem, meaning beneath one’s dignity) is an apt description of the anemic suggestion by the respondent abortionists in their merits brief in Dobbs v. Jackson Women’s Health Organization that the Court dismiss as improvidently granted—or DIG, in the Court’s jargon—the state of Mississippi’s certiorari petition.

Let’s put things in context:

1. When the Court granted certiorari in May, it specifically did so “limited to Question 1 presented by the [state’s] petition.” That Question 1 reads: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” (Emphasis added.)

Supreme Court Rule 14.1(a) expressly provides that “The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” The question whether “all pre-viability prohibitions on elective abortions are unconstitutional” necessarily implicates the question of what the proper constitutional standard is, which in turn “fairly include[s]” the questions whether Roe v. Wade and Planned Parenthood v. Casey are faithful to that standard, and, if they are not, whether they should be overturned.

Indeed, given Casey’s embrace of “the central holding of Roe” that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”—“[r]egardless of whether exceptions are made for particular circumstances”—it is difficult to understand how anyone would fail to recognize that the question “Whether all pre-viability prohibitions on elective abortions are unconstitutional” presents at bottom the question whether Roe and Casey should be overturned. (The issue would be very different if Question 1 were limited to “Whether all pre-viability prohibitions on elective abortions are impermissible under Roe and Casey.”)

Respondents’ own argument—the one argument that I think they have right—that there are “no half-measures” available in Dobbs between overturning Roe and Casey, on the one hand, and applying and affirming them to invalidate Mississippi’s law, on the other, proves the point. The idea that the justices who voted to grant certiorari on Question 1 after many months of deliberation somehow did not understand what Question 1 entailed (even as they denied certiorari on the narrower questions that Mississippi’s petition presented) is ludicrous.

That is why the Court’s grant of certiorari on this question was widely and immediately understood to tee up Roe and Casey for overruling.

That is why the same-day New York Times article on the grant of certiorari was titled “Supreme Court to Hear Abortion Case Challenging Roe v. Wade” and prominently highlighted supporters of abortion rights who denounced the grant as “signaling a willingness to revisit Roe” (NYT’s summary) and as setting up “a test case to overturn Roe.”

That is why SCOTUSblog reported the same day that the case “could upend the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.”

That is why the Los Angeles Times editorial board stated the same day that the “enormously important” question in Dobbs meant that “There are basically two ways for the court to go: gut Roe vs. Wade or reaffirm it.”

That is why NARAL issued a same-day press release that declared that “There is no path for the Supreme Court to uphold Mississippi’s abortion ban without overturning Roe’s core holding.”

That is why an NBC News analysis the very next day stated that the certiorari “is a signal that the court is ready to overturn Roe v. Wade” and that Dobbs “lunges straight at [Roe’s] heart.”

Et cetera, et cetera.

2. To be sure, Mississippi argued in its petition that “the questions presented in this petition do not require the Court to overturn Roe and Casey” (emphasis added) but “merely … to reconcile a conflict in its own precedents.” But Mississippi went on to argue that if it would lose under Roe and Casey—if, that is, “the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate”—then the Court “should not retain erroneous precedent” (i.e., should overturn Roe and Casey).

The respondents complain that Mississippi “mentioned the notion [of overturning Roe and Casey] only in a threadbare footnote.” But that complaint ducks the fundamental point that the question is “fairly included” in the question on which the Court granted certiorari (and thus need not have been mentioned at all). And the complaint is also wrong, as the certiorari petition argued at length (see especially pp. 14-20) against the soundness of Roe and Casey. E.g.:

Roe’s viability line is arbitrary, constantly moves as medical knowledge increases, and fails to honor the reality that states have substantial interests of their own beginning “from the outset of the pregnancy.

The Court should grant the petition, hold that it is illogical to impose a “rigid line allowing state regulation after viability but prohibiting it before viability,” and uphold the Gestational Age Act.

[T]he Court should grant review and reject “viability” as the bright line for determining when a state may legislate to advance its substantial interests in health, safety, and dignity.

Roe’s viability rule is outdated.

In sum, the viability rule was created outside the ordinary crucible of litigation, failed to take account of the state’s accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best. The Court should revisit it.

3. In City of San Francisco v. Sheehan (2015), the Court dismissed as improvidently granted a question on which the parties’ merits briefs were not in dispute. In so doing, the Court explained that the question “would benefit from briefing and an adversary presentation.”

At the risk of severe understatement, it is plain that no such concern is present here. Dozens of merits briefs, by the parties and their amici, have now been filed on both sides of the question whether Roe and Casey should be overruled.

In sum, there is no conceivable ground for DIGging Dobbs.

Law & the Courts

This Day in Liberal Judicial Activism—September 23

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The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), the Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

Law & the Courts

This Day in Liberal Judicial Activism—September 22

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Senator Barack Obama (D-IL) listens during a news conference in the Capitol in Washington on February 6, 2007. (Kevin Lamarque/Reuters)

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Law & the Courts

Does the EEOC Really Get to Decide Whether RFRA Applies in Employment-Discrimination Lawsuits?

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LGBTQ activists and supporters hold a rally outside the U.S. Supreme Court as it hears arguments in a major LGBT rights case on whether a federal anti-discrimination law that prohibits workplace discrimination on the basis of sex covers gay and transgender employees in Washington, U.S., October 8, 2019. (REUTERS/Jonathan Ernst)

Earlier this month, a federal district court in North Carolina rejected Charlotte Catholic High School’s religious defenses against a Title VII claim of sex discrimination allegedly based on an employee’s sexual orientation. The case, Billard v. Charlotte Catholic High School, was brought by Lonnie Billard, a male substitute drama teacher, who was fired “for his support of gay marriage” (contrary to Catholic doctrine) after he posted on Facebook about his upcoming civil marriage to another man.

The religious school was not willing to employ teachers who openly oppose Church teachings the school is responsible for imparting and modeling to its students. Indeed, the high school’s Catholic school system was consistent in its treatment of employees who openly flouted the Catholic Church’s teachings on marriage and sexual relations, whether or not they were homosexual. This included dismissing a male teacher for having an extra-marital affair, a male teacher for adopting a child with his same-sex partner, and a female teacher for planning to marry a divorced Catholic man who did not secure an annulment of his prior marriage from the Church.

The Catholic school argued that the Religious Freedom Restoration Act (RFRA) protected its right to select and employ substitute teachers who do not engage in conduct or publicly advocate positions contrary to Church doctrine. RFRA was passed in 1993 with overwhelming bipartisan support and signed into law by President Bill Clinton in the wake of the Supreme Court’s 1990 Employment Division v. Smith case that gutted First Amendment Free Exercise Clause protections. Under RFRA, the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The district court in Billard held that “RFRA does not apply to suits between purely private parties,” such as the one between Billard and Charlotte Catholic High School, citing several circuit and district courts that held RFRA’s protections are only available if the federal government is a party. The district court, however, noted that the Fourth Circuit, which handles appeals from North Carolina federal district courts, has not yet decided the issue.

The dispute over when RFRA applies is based on how best to interpret the statutory text. The Billard court (and others) point to two phrases. First, RFRA permits a person whose religious exercise has been burdened to raise a claim or defense “in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). Second, a burden on religious exercise is permitted only if the government demonstrates a compelling interest achieved by the least restrictive means. “Demonstrates” is defined as “meet[ing] the burdens of going forward with the evidence and of persuasion.” Taken together, both of these phrases, according to the court, contemplate a scheme only where the government is a party, presenting evidence and argument in court and against which relief must be obtained.

The other side points to RFRA’s sweeping language. RFRA “applies to all Federal law, and the implementation of that law.” “Government” includes any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Its stated purposes are “to provide a claim or defense to persons whose religious exercise is substantially burdened by government” and to apply “in all cases.” Notably, defenses do not provide relief against the government (or otherwise). They merely defeat liability or the application of the law to the defendant.

Who is burdening Charlotte Catholic High School’s exercise of religion: Billard or the government? Here, it is the government in the form of potential court enforcement of Title VII liability. In response to that burden, the school raised an RFRA defense, claiming there was no compelling government interest in forcing it, under penalty of court sanctions and court-awarded damages, to retain teachers who publicly oppose Catholic teachings on marriage.

Ironically, the very case that gave Billard his cause of action — Bostock v. Clayton County — specifically described RFRA as a “super statute” that “might supersede Title VII’s commands in appropriate cases.” Yet Billard failed to address the Supreme Court’s pronouncement, which calls into question the pre-Bostock RFRA cases the court relied on. What are “appropriate” Title VII cases if not teachers at religious schools?

Under Billard’s reasoning, if the Equal Employment Opportunity Commission (EEOC) — the federal agency charged with enforcing Title VII and other laws prohibiting employment discrimination — had sued on behalf of the teacher, RFRA would be available as a defense.

To bring a Title VII claim in federal court, an employee (or applicant) must first file a charge of discrimination with the EEOC. The employer is required to issue a position statement in response and will often include any applicable defenses. If the EEOC finds that reasonable cause exists for the employee’s discrimination claim, the EEOC will try to conciliate the case with the employer, at which point an employer claiming an RFRA defense would likely raise it. If the case does not settle, the EEOC would choose either to file a lawsuit against the employer or issue a notice of right sue to the employee (a necessary step before employees can sue on their own in federal court under Title VII).

Consider three different scenarios, all of which involve the same claim of employment discrimination against a religious employer.

  1. EEOC sues on behalf of the employee.
  2. EEOC sues and the employee intervenes as a private-party plaintiff.
  3. EEOC issues a notice of right to sue, and the employee sues as a private-party plaintiff.

According to Billard, the religious employer could raise an RFRA defense in the first two scenarios, but not the third. Notably, there is no suggestion that the RFRA defense applies unequally in mixed-party suits, such that RFRA would apply only to the federal government and not to the private-party plaintiff.

But can an employer’s rights to religious freedom and an employee’s rights to nondiscrimination really be a function of which party sues on behalf of the alleged injured employee? Or more specifically, whether the EEOC sues?

Under Billard, if the EEOC brings or intervenes in a lawsuit on behalf of an employee, and the court recognizes an RFRA defense, then the employee loses the nondiscrimination claim. But if the EEOC declines to bring a lawsuit where the religious employer could have brought a successful RFRA defense, then the employer loses its rights to religious exercise. That can’t be right. Otherwise, the EEOC could put its thumb on the scales and purposely avoid becoming a party in lawsuits against religious employers to deprive them of a potentially winning RFRA defense.

Instead, RFRA should be available “in all cases” as a defense whenever the government substantially burdens religious exercise through “all Federal law, and the implementation of that law” — regardless of whether the government is a party to the lawsuit. After all, it is the federal courts themselves that would ultimately impose the substantial burdens on religion — here, in the form of Title VII liability and damages as the district court held.

Law & the Courts

Ruth Marcus on How to Lobby Justice Kavanaugh

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In the Washington Post, Ruth Marcus offers very mixed criticism of the abortion activists who marched on Justice Kavanaugh’s home last week “to protest his vote allowing the Texas abortion law to take effect.”

On the one hand, Marcus says that the protesters “were within their rights” (that’s far from clear) and that she is “aggrieved by Kavanaugh’s vote, too.” (Never mind that his vote against emergency relief on procedural grounds was clearly correct.) She even implausibly compares their protest at his home to the annual March for Life on Constitution Avenue.

On the other hand, Marcus acknowledges that it’s “intimidating, even terrifying, to have people turn up at your home”—a “kind of bullying [that] goes too far.” Plus, in what Marcus seems to regard as the decisive factor, “[i]t’s also, in the case of Kavanaugh and the court, apt to be counterproductive,” especially regarding the pending Mississippi abortion case.

Much like law professor Noah Feldman’s pitch to Kavanaugh to “become the new Kennedy,” Marcus presents Kavanaugh as someone who, above all, “wants to be liked and admired,” who wants to “win plaudits from those [in the legal establishment] whose acceptance he still craves.”

What a demeaning depiction. But it gets worse. Marcus also posits that Kavanaugh might “want[] to avoid deciding the Mississippi case in a way that [she thinks] would likely hurt Republicans in the midterm elections a few months later.”

I’ll repeat basically what I said in response to Feldman’s plea: I expect that Kavanaugh’s jurisprudential principles, including the discussion of precedent that he set forth in his concurrence in Ramos v. Louisiana (2020), will lead him to reject Roe v. Wade and Planned Parenthood v. Casey and that he will strive in Dobbs v. Jackson Women’s Health Organization, just as in other cases, to do his constitutional duty to rule based on the law, not to feed his ego or do political favors.

Law & the Courts

Badly Botched ‘Originalist Case for an Abortion Middle Ground’

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Last week, law professor Aaron Tang posted a long article titled “The Originalist Case for an Abortion Middle Ground.” In that article, Tang disputes the proposition that, “at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy.” The actual number, he argues, was 15.

Tang somehow imagines that his argument, if it were correct, would undermine the predominant originalist position against a constitutional right to abortion. But he badly misunderstands that position.

To state the matter most simply, the originalist proposition that the states have the authority to prohibit elective abortion does not depend at all on whether 27 or 17 or seven states prohibited abortion from conception at the time the 14th Amendment was enacted. Under standard originalist methodology, any of those counts would place on proponents of a constitutional right to abortion a very high burden of demonstrating that the original public meaning of the 14th Amendment somehow disallowed those state laws. To be sure, the higher the number, the more patently ridiculous the originalist argument for a right to abortion is. But Tang is simply wrong to posit that the originalist argument against a right to abortion depends on what he calls the “27-states claim.”

When a state chooses to allow an action, it does not ordinarily imply that it lacks the power to prohibit the action. By contrast, when it chooses to bar an action, it ordinarily conveys its belief that it has the power to do so.

In other words, even if Tang were right that, at the time the 14th Amendment was ratified, there were 22 states in which “pregnant persons [sic] were free to obtain an abortion at any time before quickening,” he’s utterly wrong to think that that datum ought to lead originalists to conclude that the 14th Amendment protects a constitutional right to abortion before quickening. If, by his count, 15 states then had laws that barred abortion “at all points in pregnancy,” that establishes a very strong presumption that the 14th Amendment allowed such laws.

What’s more, if the 14th Amendment somehow protected a constitutional right to abortion before quickening, you’d expect that the states that had pre-quickening bans would, immediately after ratification, eliminate those bans. Instead, the trend was in the opposite direction: States that had in place the common-law ban on abortion post-quickening enacted statutes that barred abortion from conception.

In any event, it appears that Tang has gotten his history badly wrong. In a “preliminary rejoinder,” law professors John Finnis and Robert P. George offer what appears to be a devastating demolition of Tang’s claims. Working their way alphabetically through the states in which Tang says that there is “clear [and] specific historical evidence” that the states did not forbid pre-quickening abortion, they rebut Tang’s claims and identify one gross misrepresentation after another. Their bottom line:

To our surprise, Tang’s essay sadly outdoes the articles of Cyril Means on which Roe relied. Just as partisan, the new essay is conceptually even more confused and historically even more error-strewn, at all levels of generality, from big picture to granular case law.

(Finnis and George, I’ll note, argue not merely that the 14th Amendment allows states to prohibit elective abortion from conception but that it compels states to do so.)

Law & the Courts

This Day in Liberal Judicial Activism—September 21

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Election officials canvass absentee ballots received on Election Day at a central count facility in Kenosha, Wis., November 3, 2020. (Daniel Acker/Reuters)

2020—In Democratic National Committee v. Bostelmann, federal judge William M. Conley rules that the coronavirus pandemic entitles him to extend various statutory deadlines in Wisconsin election law, including the deadline for online and mail-in registration and for the receipt of mailed ballots. Two weeks later, a Seventh Circuit panel will stay Conley’s order.

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Woke Federal Court Staff Wanted

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You might think that those who administer the federal courts would be keen to attract staffers who could be trusted to carry out their duties impartially. But the Fourth Circuit, in its announcement for a position of appeals case manager, somehow sees fit to state that it “prides itself on being a collegial, collaborative, and progressive organization” and that it wants “strong candidates who share our vision and passion.”

Further, rather than providing the customary assurance that it is an “equal opportunity employer” that does not “discriminate” against applicants based on race or various other grounds, the hiring office states that it is “an Equal Opportunity Employer that values diversity and inclusion.” It thus signals that it will discriminate against applicants in order to advance those “values” of “diversity and inclusion.”

Given the hijinks and bias that have occurred in federal judicial administration, I can’t say that I’m surprised. If only judicial bureaucrats were content to “make[] a difference in administering justice” by being impartial and efficient.

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Texas Abortionist Seeks Test Lawsuit Under Heartbeat Act

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In a Washington Post op-ed, Alan Braid, an abortionist in San Antonio, says that he recently “provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit” under the Texas Heartbeat Act. He says that he did so in order “to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

For three reasons, no one should sue Braid to give him the imagined test case that he is seeking. In ascending order of importance:

1. It’s not at all clear that Braid is actually admitting to have violated the Act. He states that the Texas Heartbeat Act “virtually banned any abortion beyond about the sixth week of pregnancy” and that his recent abortion “was beyond the state’s new limit.” But rather than imposing a time limit, the Act forbids a physician from “perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” (Emphasis added.) I don’t know whether Braid’s language is cagey or sloppy, but it leaves open the possibility that he conducted the required test for the fetal heartbeat but did not detect one. Indeed, his abortion clinic maintains that it is “compliant” with the Act and therefore “cannot provide abortion services to anyone with detectable embryonic or fetal cardiac activity.”

2. It makes no sense for a private person to bring a civil enforcement action under the Act against Braid or any other suspected violator until the Supreme Court has overruled Roe v. Wade and Planned Parenthood v. Casey. Until such overruling — which ought to happen by the end of June 2022 — a lawsuit is bound to fail. (To be clear, it’s not that the Act is actually unconstitutional; it’s instead that it conflicts with the flagrantly unconstitutional holdings of Roe and Casey.) The Act provides a four-year statute of limitations, so there is no point in racing to court before that overruling occurs.

3. In its complaint against the state of Texas, the U.S. Department of Justice contends that private persons who enforce the Act are “agents” of Texas. That contention, which is likely to fail under Fifth Circuit precedent, opens the way for DOJ to bring civil and criminal actions against private civil enforcers for acting “under color of law” to deprive individuals of constitutional rights. Indeed, law professor Laurence Tribe has specifically recommended that DOJ do so. Rather than sue now and expose oneself to those risks and the costs of defending against them, a private enforcer would be far more prudent to wait until DOJ’s action against Texas has failed.

All that said, Braid is wrong to imagine that a “test case” would give him or other abortionists any meaningful relief. What is deterring them from providing post-heartbeat abortions is the prospect of crushing liability for damages for abortions done between now and the time that Roe and Casey are overturned. Even if Braid were to win a lawsuit against him (as I expect he would) for his recent abortion, that victory would do nothing to alter that prospect. The court couldn’t enjoin any of the millions of other potential private enforcers from filing lawsuits down the road. Indeed, Braid would remain liable to another private enforcer even for that same abortion. (The Act makes explicit the ordinary rule that claim preclusion would not operate against persons who were not parties to the first case.)

Law & the Courts

This Day in Liberal Judicial Activism—September 20

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(AMAYRA/iStock/Getty Images)

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional.

Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

Law & the Courts

This Day in Liberal Judicial Activism—September 19

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The White House in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

Law & the Courts

This Day in Liberal Judicial Activism—September 18

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U.S. Court of Appeals for the Ninth Circuit (legalnewsline.com)

2017—Evidently unhappy that a criminal defendant wasn’t making sweeping attacks on the statute under which she was convicted, a Ninth Circuit panel presided over by Stephen Reinhardt issues an extraordinary order, months after oral argument, inviting three left-wing organizations to file amicus briefs that make those attacks.

In May 2020, the Supreme Court, in a unanimous opinion by Justice Ginsburg (in United States v. Sineneng-Smith), will determine that the Ninth Circuit panel “departed so drastically from the principle of party representation as to constitute an abuse of discretion.” Ginsburg faults the panel for its “takeover of the appeal,” for intervening to displace the arguments made by “competent counsel” on Sineneng-Smith’s behalf and to substitute instead a “radical transformation” of the case that “goes well beyond the pale.”

2019—In an action filed by a suspected Al Qaeda-associated terrorist to obtain information related to the CIA’s covert activities in Poland, a divided panel of the Ninth Circuit (in Husayn v. United States) directed the district court to try to “disentangle” information that supposedly wasn’t protected by the state-secrets privilege from that which was.

In July 2020, twelve judges will dissent from the Ninth Circuit’s refusal to rehear the appeal en banc. As Judge Daniel Bress sums things up:

The serious legal errors in the majority opinion, and the national security risks those errors portend, qualified this case for en banc review. The majority opinion treats information that is core state secrets material as fair game in discovery; it vitiates the state secrets privilege because of information that is supposedly in the public domain; it fails to give deference to the CIA Director on matters uniquely within his national security expertise; and it discounted the government’s valid national security concerns because the discovery was only sought against government contractors—even though these contractors were the architects of the CIA’s interrogation program and discovery of them is effectively discovery of the government itself.

Law & the Courts

This Day in Liberal Judicial Activism—September 17

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Washington as Statesman at the Constitutional Convention (Junius Brutus Stearns, Image via Wikimedia)

A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

2020Pennsylvania law requires mail-in and absentee ballots to be returned no later than 8:00 p.m. on Election Day. Acknowledging that “there is no ambiguity regarding the deadline and that “there is nothing constitutionally infirm” about it, a narrow majority of the Pennsylvania supreme court nonetheless rules (in Pennsylvania Democratic Party v. Boockvar) that the coronavirus pandemic justifies a three-day extension of the deadline.

Law & the Courts

IWF Report on Transgender Threat to Girls’ and Women’s Sports

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The Independent Women’s Forum has issued a comprehensive new report on how allowing males who ID as female to take part in girls’ and women’s sports “undermines Title IX,” “put[s] female athletes at a significant competitive disadvantage,” and in some cases “will deny female athletes the opportunity to compete at all.”

The report, titled “Competition: Title IX, Male-Bodied Athletes, and the Threat to Women’s Sports,” “summarize[s] American law regarding sex discrimination and athletics, analyze[s] the evidence regarding physiological sex differences and the male-female athletic gap, and review[s] testimony from just a few of the many females who have competed with or against male-bodied athletes. It is a valuable resource for anyone interested in this important matter.

(Disclosure: After a colleague highly recommended the report to me, I was pleased to discover that one of its six co-authors is my daughter-in-law.)

Law & the Courts

‘Like a Classic Clown Bop Bag’

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Here’s the opening paragraph of Ninth Circuit judge Sandra Ikuta’s dissent today in Chamber of Commerce v. Bonta:

Like a classic clown bop bag, no matter how many times California is smacked down for violating the Federal Arbitration Act (FAA), the state bounces back with even more creative methods to sidestep the FAA. This time, California has enacted AB 51, which has a disproportionate impact on arbitration agreements by making it a crime for employers to require arbitration provisions in employment contracts. And today the majority abets California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it bars only nonconsensual agreements. The majority’s ruling conflicts with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark (2017), and creates a circuit split with the First and Fourth Circuits. Because AB 51 is a blatant attack on arbitration agreements, contrary to both the FAA and longstanding Supreme Court precedent, I dissent. [Some citations omitted or simplified.]

The majority opinion is by Judge Carlos Lucero, visiting from the Tenth Circuit, joined by Judge William Fletcher.

Mark this one for Supreme Court reversal. (Even then-Governor Jerry Brown vetoed similar previous versions of AB 51 on the ground that they were contrary to Supreme Court precedent.) I doubt that the Chamber of Commerce and the other plaintiff business associations will waste their time seeking en banc review in the Ninth Circuit.

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Judiciary Republicans Confront Ideologues in Contentious Hearing

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President Joe Biden delivers remarks about Afghanistan, from the East Room of the White House in Washington, D.C., August 26, 2021. (Jonathan Ernst/Reuters)

Yesterday the Senate Judiciary Committee held a hearing for two circuit nominees, Jennifer Sung for the Ninth Circuit and Beth Robinson for the Second Circuit. They are just two more examples of ideologues nominated by the current president, and committee Republicans deserve kudos for bringing that out.

Jennifer Sung is actually the second Biden circuit nominee to have worked at the Brennan Center, a left-wing dark-money organization, where she spent two years as a Skadden Fellow. (I previously covered the other nominee, Myrna Pérez, who was picked for the Second Circuit after spending most of her career at the Brennan Center.) During Brett Kavanaugh’s nomination to the Supreme Court, Sung signed an incendiary letter to the Yale Law School administration with a number of outrageous statements. Chief among them: calling Kavanaugh, based on his rulings as a D.C. Circuit judge, “an intellectually and morally bankrupt ideologue” and asserting that “people will die if he is confirmed.”

When Senator Tom Cotton asked Sung why she thought Kavanaugh was a “morally bankrupt” man, she described the letter’s statements as “overheated rhetoric, but they were rhetorical advocacy,” and she apologized if they “created the impression that I would fail to respect Justice Kavanaugh’s authority as a Supreme Court justice.”

“Has anyone died as a direct result of Brett Kavanaugh being confirmed to the Supreme Court?” Cotton asked pointedly.

Sung repeated her “rhetorical advocacy only” line. That she was giving a canned response was clear after she repeated that line over and over again as she dodged one Republican senator after another — Ted Cruz, John Kennedy, and Mike Lee — asking her specifically whether she believed what she signed.

So is “overheated rhetoric” okay because it is done in the service of “rhetorical advocacy”? Is such a view remotely reflective of a judicial temperament? Such statements do not occur in a vacuum. The night before the hearing, demonstrators gathered outside Kavanaugh’s home engaging in “rhetorical advocacy” in what can only be interpreted as an act of intimidation against a sitting Supreme Court justice. Senator Chuck Grassley took note of that intimidation during the hearing. The “rhetorical advocacy” of 2018 is not over and forgotten. It’s still around perpetuating the bullying and smears.

Several of the Republican senators called Sung out on her lack of judicial temperament, and Kennedy was especially blunt about her evasiveness. To her line that she “would absolutely respect” the authority and precedents of the Supreme Court, he replied:

I don’t believe you. I think you allowed your political beliefs to cloud your judgment, and I think you said a few years ago what you said about Brett Kavanaugh, and I think you believe it. And I can’t imagine what it’s going to be like to be a litigant in front of you, with that demonstration of lack of judicial temperament and judgment. How can a litigant possibly think that you’re not going to act on personal beliefs if you were so intemperate to say something like this?

Beth Robinson for her part raised red flags about her hostility to religious freedom. She had a reputation as an activist lawyer before joining the Vermont supreme court. As an attorney, she represented a woman who during the 1990s sued a printer under a state antidiscrimination law for refusing to print membership cards she made for a group called Vermont Catholics for Free Choice, which opposed the church’s stance on abortion. Malcolm and Susan Baker, the Catholic couple who owned the printer, followed Church teaching and therefore declined to process the order.

That sounds a lot like a case involving a small-b baker, the future Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Robinson’s brief for the plaintiff was hostile to the Bakers’ religious views on a level comparable to the Colorado officials whose conduct earned them seven votes against them, including those of Justices Stephen Breyer and Elena Kagan. As Senator Ted Cruz noted, Robinson’s brief referred to the couple’s views as “invidious” and “pernicious.” When he asked the nominee about those statements, she dug herself into a hole by citing Employment Division v. Smith as the operative precedent, the notably less protective free-exercise precedent whose future is in doubt after the Court’s last term, while ignoring the more on point Masterpiece Cakeshop.

Senator Josh Hawley pursued a similar line of questioning, adding a reference to Robinson’s comparison between the Bakers’ pro-life views and racial discrimination. The nominee failed to answer his question on whether she stands by such a comparison. On the applicable jurisprudence, Hawley specifically asked her about Masterpiece Cakeshop, and she dug herself into a deeper hole by dismissing the applicability of that precedent while returning to Smith as the applicable law from which the Court, in her view, “hasn’t backed away.”

The Republican senators’ questions were probing and effective in highlighting the nominees’ ideological obtuseness and (in Sung’s case) temperamental unfitness for the bench. Yesterday’s hearing underscored just how extreme Joe Biden’s judicial nominees are turning out to be, in contrast to his campaign pledge of moderation and unity. No doubt the left-wing dark-money groups who spent hundreds of millions of dollars to elect him are delighted.

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DOJ Motion for Injunctive Relief in Texas Heartbeat Act Litigation — Some Observations

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Late on Tuesday evening, the U.S. Department of Justice filed its motion for injunctive relief against the state of Texas in its lawsuit over the Texas Heartbeat Act. A few observations:

1. DOJ maintains that it has broad authority to seek “equitable relief to protect interests of the federal government, notwithstanding the absence of express statutory authority to do so.” It argues that the “unique circumstances presented here — including, most notably, S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review through a congressionally conferred cause of action — distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue.” (See pp. 22–28.)

Texas will surely vigorously contest DOJ’s position on this issue. This will likely be a major focus of the dispute, both before federal district judge (and Obama appointee) Robert L. Pitman and on appeal in the Fifth Circuit. It’s a safe bet that Pitman will agree with DOJ and adopt its proposed order. It’s far less clear to me that the Fifth Circuit will do so.

2. Any injunctive relief that Pitman provides will likely be of little or no use to abortion providers in Texas unless and until there is a final ruling from the Fifth Circuit (or Supreme Court) that affirms Pitman’s order. If the injunctive relief is vacated on appeal (including by the en banc Fifth Circuit), the abortion providers will remain liable for any post-heartbeat abortions that they do in the interim. The Texas Heartbeat Act specifically provides that “a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates [the Act],” is not a defense to liability under the Act. Any challenge (on due-process or other grounds) to the operation of this provision strikes me as baseless. Thus, the liability concerns that that have evidently led abortion providers not to violate the Act should remain essentially unchanged in the interim.

3. Indeed, the injunctive relief that DOJ seeks — even if ultimately affirmed — would not provide abortion providers any protection against private lawsuits brought in federal court by residents of other states under federal diversity jurisdiction. To be sure, plaintiffs invoking a federal court’s diversity jurisdiction (unlike plaintiffs in state court) would have to satisfy federal standing requirements and the $75,000 amount-in-controversy requirement. But there may well be plenty of plaintiffs — e.g., prospective adoptive couples who assert that abortion is harming their ability to adopt a baby from Texas — who could plausibly allege injury in fact. And it takes at most eight violations — and probably no more than two or three, given that the statutory damages of “not less than $10,000” applies to every violator — to meet the amount-in-controversy requirement. So the abortion providers’ liability concerns might well remain even if DOJ is victorious in this case.

Law & the Courts

Footnote Conflict on ‘Pregnant Woman’

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Footnote 2 in Judge Martha Craig Daughtrey’s majority opinion (joined by Judge Karen Nelson Moore) in Sixth Circuit panel’s divided ruling last Friday in Memphis Center for Reproductive Health v. Slatery:

We use the word “patient” or “person” instead of “woman” where possible, to be inclusive of transgender and non-binary individuals, who also can become pregnant.

Footnote 3 in Fifth Circuit’s unanimous per curiam opinion (Judge Edith H. Jones, Judge Stuart Kyle Duncan, and Judge Kurt Engelhardt) last Saturday in Whole Woman’s Health v. Jackson:

The district court felt moved to “note that people other than those who identify as ‘women’ may also become pregnant and seek abortion services.” This notion, whatever it might mean, ignores that the law applies only to “an abortion on a pregnant woman.” [Citations omitted.]

Law & the Courts

This Day in Liberal Judicial Activism—September 15

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(Dreamstime)

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2000—Declaring that a right to abortion “is inherent in the concept of ordered liberty,” the Tennessee supreme court (in Planned Parenthood v. Sundquist) rules that informed-consent provisions and various other state-law regulations of abortion violate the state constitution.

 2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

Law & the Courts

DOJ Lawsuit Against Texas Heartbeat Act—A Quick Overview

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Last Thursday, the U.S. Department of Justice, on behalf of the United States, filed suit against Texas over the Texas Heartbeat Act. (For background on the broader controversy, read my posts on the litigation brought by abortion providers against the Act and the Supreme Court’s denial of their request for emergency relief.)

The complaint alleges that the Act has inflicted irreparable injury on the United States in two different respects. First, under a parens patriae theory, the complaint alleges that the Act “injures the United States by depriving women in Texas of their constitutional rights while seeking to prevent them from vindicating those rights in federal court.” (See pp. 15-16.) Second, the complaint alleges that the Act “unconstitutionally restricts the operations of the federal government” (see pp. 16-24)—in particular, the Department of Labor’s Job Corps Program (pp. 16-19), the Office of Refugee Resettlement (p. 19), the Bureau of Prisons (pp. 19-21), the Centers for Medicare and Medicaid Services (pp. 21-22), the Office of Personnel Management (pp. 22-23), and the Department of Defense (pp. 23-24).

The complaint presents three counts: “Supremacy Clause—Fourteenth Amendment” (pp. 24-25), “Preemption” (pp. 25-26), and “Violation of Intergovernmental Immunity” (p. 26).

At DOJ’s request, the case has been assigned to Judge Robert L. Pitman, the Obama appointee handling the litigation brought by abortion providers against the Act. (That litigation is now pending on appeal before the Fifth Circuit on jurisdictional questions.)

Some preliminary observations:

1. The complaint does not undertake to identify the specific causes of action that might underlie its counts. It instead asserts generically that the federal district court “has authority to provide the relief requested under the Supremacy Clause, U.S. Const. art. VI, cl. 2, the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. §§ 1651, 2201, and 2202, and its inherent equitable authority.” Whether and to what extent any of these sources actually creates a cause of action for a particular claim in DOJ’s complaint will likely be a central matter of dispute in the case.

I’ll briefly illustrate the point with respect to the complaint’s first count. As the Supreme Court made crystal clear just a few years ago (in Justice Scalia’s majority opinion in Armstrong v. Exceptional Child Center (2015)), the “Supremacy Clause is not the source of any federal rights and certainly does not create a cause of action.” (Emphasis added, citations omitted, and cleaned up.) Further, the Fourteenth Amendment does not itself create a cause of action but instead only gives Congress the power to enforce its provisions “by appropriate legislation.” So DOJ will need to establish that one of the other authorities it identifies confers a cause of action regarding the injury that it alleges here. It’s not at all clear that it will be able to do so.

2. The relief potentially available to DOJ would seem to differ considerably depending on whether it is aimed to address the federal government’s asserted parens patriae injury or the injury resulting from alleged interference with the federal government’s operations. In the latter case, it might well be enough (if the court were to agree with DOJ) to exempt the federal government’s operations from the application of the Act.

3. DOJ has not yet filed a motion for preliminary-injunctive relief. Once expedited briefing is complete on such a motion, it’s a safe bet that Judge Pitman will give DOJ whatever relief it requests. The real action will be in the Fifth Circuit, including on the threshold question whether to block Pitman’s order pending appeal.

4. One big-picture point: Nothing in DOJ’s claim to have a right to sue to redress its supposed parens patriae injury hinges on the private civil-enforcement provisions of the Act. Thus, if DOJ were to prevail, that would open the door wide to DOJ’s bringing all sorts of individual-rights constitutional claims against whatever state laws offend the current Administration. DOJs in Republican administrations would sue predominantly “blue” states over such matters as gun regulations and racial preferences, while DOJs in Democratic administrations would sue predominantly “red” states on behalf of liberal causes. The end result would be a dramatic escalation in the politicization of DOJ.

Law & the Courts

Judge Thapar’s Persuasive Case against Roe

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(Wavebreakmedia/Getty Images)

Judge Amul Thapar has written another strong judicial opinion, this time in reaction to the Sixth Circuit’s ruling in an abortion case decided Friday. The panel opinion in Memphis Center for Reproductive Health v. Slatery struck down two Tennessee abortion restrictions — one applying when a fetal heartbeat is detected, the other when the doctor knows an abortion is sought because of race, sex, or a Down-syndrome diagnosis of a fetus. Thapar did not join the court’s opinion, instead issuing a partial dissent that took on the Supreme Court’s abortion jurisprudence head on.

Thapar acknowledged that Roe v. Wade and Planned Parenthood v. Casey compelled the outcome regarding the heartbeat provision because it applied before viability, but he asserted up front that both “Roe and Casey are wrong as a matter of constitutional text, structure, and history.” He spent the bulk of his 35-page opinion explaining why.

First, the text:

​​No one, including the Roe majority, contends that such a right exists in the text of the Articles of the Constitution. Instead, jurists and commentators point to the Bill of Rights or the Fourteenth Amendment. But you won’t find the word “abortion” (or any equivalent) there either. Indeed, many thoughtful legal scholars, including those who support abortion as a policy matter, have expressed skepticism of or outright hostility to the idea that the Constitution explicitly provides a right to abortion. The text does not bear it out. [footnote omitted]

A right can be discerned when it is “deeply rooted” in our “history, legal traditions, and practices,” but “this is a tough test to pass. And rightly so. After all, when the judiciary recognizes a new right, we take the decision away from the American people. The Roe majority claimed that a right to abortion easily clears that high hurdle. But in doing so, it rewrote history.” Of course abortion has no such historical pedigree, and the Roe majority’s reliance on “suspect sources” plagued by “historical errors” to try to establish otherwise “is just one of many reasons why historians and jurists have roundly criticized Roe’s historical foundations since the day it came down.”

Thapar buttressed his point with this gem in one of his footnotes referencing other sources that demolished Roe’s history:

I am aware that the Roe majority offered a fleet of additional historical arguments ranging from the views of the Persians and ancient Greeks on abortion to the Hippocratic Oath. But at some point, I must follow the mercy rule for the sake of both Roe and the reader. Gluttons for punishment can look elsewhere for a more thorough demolition of Roe’s historical foundations.

Not only was there no affirmative right to abortion in early America, but

almost every state and territory had in fact passed laws limiting or prohibiting abortion by the end of the nineteenth century. By contrast, the Roe majority did not provide a single example of a state that legally guaranteed an affirmative right to abortion at either the time of the Founding or during the Reconstruction Era. That silence is not just deafening. It should end the debate.

Under any test for evaluating the historical pedigree of an alleged right, the right to an abortion does not just miss the mark. It flunks out.

For good measure, Thapar took on living constitutionalism with a call for some judicial humility, quoting Edmund Burke:

I would not take the living constitutional route. Dismissing our constitutional text and history—as the Casey plurality did—is never wise. After all, we must remember that because “the private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.”

He proceeded to eviscerate Casey’s hopelessly unworkable undue-burden standard:

What constitutes an “undue burden”? How about a “substantial” obstacle? What’s a large fraction? How do you calculate the denominator? What about the numerator? How do we balance a state’s interests in preventing fetal pain, safeguarding the unborn child’s life, and preserving the integrity of its medical profession with a woman’s interest in obtaining an abortion? Should we update the undue burden test as neonatal science teaches us new things? How do you know if a law prohibited a woman from obtaining an abortion or merely persuaded her to choose life? And how can we divine future consequences from pre-enforcement challenges? Each of these questions—and there are many more—layers discretion upon discretion. Put any three judges on a panel and you could get three different—and equally reasonable—answers for each question.

The undue burden test is “hopelessly unworkable in practice.” And it is unworkable because it is neither a clear rule nor a judicially manageable standard. The test has the added vice of being untethered from constitutional or statutory text. Instead, it takes judges out of our Article III role and makes us answer questions better left in the hands of legislatures. The Founders understood the danger of this. So should we. [citations omitted]

Thapar appealed to the Supreme Court to do what he as a circuit judge could not:

Only the Supreme Court can tow our jurisprudence back to the safe harbor of democratic legitimacy. . . .

Justice Holmes once remarked that “a page of history is worth a volume of logic.” The argument that the Constitution contains a right to abortion has neither. As shown above, the historical evidence is clear. The Constitution leaves decisions like this to the states. The state legislatures can do what we can’t: listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly. And if the public is unhappy, it can fight back at the ballot box. The courts should return this choice to the American people—where it belongs. [citation omitted]

Thapar is exactly right that Roe and Casey are wrong as a “matter of constitutional text, structure, and history.” I applaud his thoughtful and well-reasoned opinion explaining just how very harmful it has been to our republic and the Court’s own integrity for the “manufacture[d] right to abortion” of Roe and Casey to move the “policy debates from the country to the courtroom.”

Kudos to him for having the courage to say out loud what most federal judges know well but dare not say.

Law & the Courts

Powerful Opinion by Judge Thapar on Illegitimacy and Unworkability of Roe/Casey Regime

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On Friday, a Sixth Circuit panel majority ruled (in Memphis Center for Reproductive Health v. Slatery) that two provisions of Tennessee abortion law are constitutionally impermissible. Specifically, the majority (opinion by Judge Martha Craig Daughtrey, joined by fellow Clinton appointee Karen Nelson Moore) ruled (1) that a ban on post-heartbeat abortions imposes an “undue burden” before viability under Planned Parenthood v. Casey, and (2) that prohibiting abortion when the abortionist “knows” that the pregnant woman “is seeking the abortion because of the sex of the unborn child … because of the race of the unborn child … [or] because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in the unborn child” is impermissibly vague.

Writing separately, Judge Amul Thapar explained that Supreme Court precedent compelled him to concur in the first ruling but that the majority’s second ruling turned on “[l]aw professor hypotheticals and dreamed-up scenarios” that defy precedent and that, if applied elsewhere, would mean that “no statute could pass constitutional muster.” (See pp. 37-38, 63-70.)

More notably, while explaining that he was bound to apply the Court’s Roe/Casey regime, Thapar also powerfully expounded how the Roe/Casey framework “conflict[s] with the original understanding of the Constitution,” “cannot be justified under any modern approach to constitutional interpretation” and “has proven unworkable in practice.”

Among other things: The Roe majority “rewrote history” in trying to claim that a right to abortion has a strong historical foundation. (Pp. 42-50.) The living-constitutionalist argument for abortion ignores that abortion “remains one of the most hotly contested issues in American life,” that “‘the United States is an outlier within the international community’ when it comes to abortion,” and that “the steady march of science undermines” Roe’s agnosticism about when the life of a human being begins and Casey’s arbitrary adoption of a viability line. (Pp. 50-55.) And Casey’s “undue burden” test “has proved inherently resistant to neutral and principled application.” (Pp. 55-62.)

Here are some excerpts from Thapar’s opinion on the last point:

What legal rules and doctrines have suffered at the hand of abortion jurisprudence? Statutory interpretation, the rules of civil procedure, the standards for appellate review of legislative factfinding, and the First Amendment to name a few. [Citations omitted.]

Rather than mend the Nation’s fractures, the Casey regime’s lack of concrete guidance has generated decades of bitter litigation and widening circuit splits. Consider, for instance, the circuit split over parental notification requirements. Compare Planned Parenthood v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc), with Planned Parenthood v. Adams, 937 F.3d 973, 985–90 (7th Cir. 2019), and Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995). Or the split about laws requiring abortion providers to make certain disclosures. Compare EMW Women’s Surgical Ctr. v. Beshear, 920 F.3d 421, 430–32 (6th Cir. 2019), and Planned Parenthood v. Rounds, 686 F.3d 889, 893–906 (8th Cir. 2012), with Stuart v. Camnitz, 774 F.3d 238, 244–50 (4th Cir. 2014). Another divide has emerged over nondiscrimination provisions such as section 217. Compare Preterm[-Cleveland v. McCloud, 994 F.3d [512,] 535 [(6th Cir. 2021), with Planned Parenthood v. Comm’r of Ind. State Dep’t of Health, 888 F.3d 300, 307–10 (7th Cir. 2018). Even the question of whether states may prohibit certain types of dilation & extraction procedures—namely, the dismemberment of a still-living unborn child—has produced a circuit split. Compare Whole Woman’s Health v. Paxton, No. 17-51060, 2021 WL 3661318, at *1 (5th Cir. Aug. 18, 2021) (en banc), with W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1319 (11th Cir. 2018), and EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 806–07 (6th Cir. 2020). These conflicts, and others like them, highlight that an undue burden is in the eye of the beholder.

Addendum: Carrie Severino provides some other choice excerpts in this post of hers.

Law & the Courts

This Day in Liberal Judicial Activism—September 13

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Then-president Donald Trump delivers a statement in the Grand Foyer at the White House in Washington, D.C., January 8, 2020. (Kevin Lamarque/Reuters)

2019—In CREW v. Trump, a divided panel of the Second Circuit reverses a district-court ruling that the plaintiffs did not have standing to pursue their claims that President Trump’s continuing business interests violated the Domestic and Foreign Emoluments Clauses of the Constitution. The panel majority rules instead that two plaintiffs operating in the hospitality industry adequately alleged that they were economic competitors of the Trump businesses and suffered harm as a result of the allegedly illegal acts, and that they therefore satisfied the competitor-standing doctrine.

In dissent, Judge John M. Walker Jr. argues that the majority’s expansive application of the competitor-standing doctrine conflicts with Supreme Court precedent.

Law & the Courts

This Day in Liberal Judicial Activism—September 12

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United States Chief Justice John G. Roberts (Jim Young/Reuters)

2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.”

Law & the Courts

This Day in Liberal Judicial Activism—September 11

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The entrance to the New York Times Building in New York, June 29, 2021 (Brent Buterbaugh)

2017—In a New York Times interview just days after his retirement from the Seventh Circuit, Reagan appointee Richard A. Posner provides a candid description of his lawless “pragmatism”:

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Law & the Courts

This Day in Liberal Judicial Activism—September 10

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Former president Donald Trump speaks at the “Rally to Protect Our Elections” hosted by Turning Point Action in Phoenix, Ariz., July 24, 2021. (Gage Skidmore)

2020—In New York v. Trump, a three-judge district court enjoins the Secretary of Commerce from complying with a presidential directive to include in census data a state-by-state tabulation of the number of aliens who are not in a lawful immigration status.

 In a 6-to-3 vote three months later, the Supreme Court will vacate the district court’s order: the  case “is riddled with contingencies and speculation that impede judicial review,” and “the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature.”

2020—Less than two months before the upcoming presidential election, federal district judge Douglas Rayes (in Arizona Democratic Party v. Hobbs) enjoins Arizona’s law that requires early voters to have signed their ballots by 7:00 p.m. on Election Day in order to have their votes counted. Rayes orders Arizona to institute a new procedure that would give voters up to five days after voting has ended to sign their ballots.

Four weeks later, a unanimous Ninth Circuit panel (with a majority of Democratic appointees) will block Rayes’s injunction from continuing in effect pending appeal.

Law & the Courts

This Day in Liberal Judicial Activism—September 9

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U.S. Army 101st Airborne soldiers arrive back at Bagram base after fighting in the Shahi Kot mountains of Afghanistan, 2002. (Jim Hollander/Reuters)

1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for Mar. 1.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”

2010—In California, federal district judge Virginia A. Phillips rules (in Log Cabin Republicans v. United States) that the Don’t Ask, Don’t Tell law governing homosexuals in the military violates substantive due process and First Amendment speech rights and that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

The Obama administration’s sabotage of Don’t Ask, Don’t Tell litigation—including then-Solicitor General Elena Kagan’s irresponsible failure to seek review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell—helped set the stage for Phillips’s ruling. Indeed, Phillips states several times in her opinion (in slightly different formulations) that the Department of Justice “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” But Phillips compounds the Obama administration’s malfeasance by misstating and misapplying the relevant standard for facial challenges.

Law & the Courts

This Day in Liberal Judicial Activism—September 8

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President Ronald Reagan meets with Robert Bork in the White House, October 9, 1987. (White House Photographic Collection/Wikimedia Commons)

1987—While ten members of the American Bar Association’s judicial-evaluations committee sensibly give Supreme Court nominee Robert H. Bork the highest rating of “well qualified,” four members indulge their ideological biases and rate him “not qualified.”

The four members hide behind the cloak of anonymity, but years later they will be reported to be Jerome J. Shestack, Joan M. Hall, Samuel Williams, and John Lane.

Law & the Courts

This Day in Liberal Judicial Activism—September 7

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A sign placed on the walkway to a neighborhood polling place on election day in Fort Lauderdale, Fla. ( Jillian Cain/GettyImages)

2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly never “mentioned—or even hinted at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

 2016—State superior court judge Thomas Moukawsher appoints himself czar of Connecticut’s public schools.

As this Hartford Courant article reports, Moukawsher “ordered the state to come up with a new funding formula for public schools”; “directed the state to devise clear standards for both the elementary and high school levels, including developing a graduation test”; “ordered a complete overhaul of Connecticut’s system of evaluating teachers, principals and superintendents”; and “demanded a change in the ‘irrational’ way the state funds special education services.”

Further: “Moukawsher’s mandates come with a tight deadline: The remedies he is ordering must be submitted to the court within 180 days.”

As the reporter observes, “It is unclear how the state Department of Education, the legislature and Gov. Dannel P. Malloy will come up with solutions, within six months, to complicated problems that have plagued public education in Connecticut for decades.” Yes, indeed.

Law & the Courts

This Day in Liberal Judicial Activism—September 6

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Ranking Member Senator Dianne Feinstein (D., Calif.) questions Supreme Court nominee Judge Amy Coney Barrett during her confirmation hearing on Capitol Hill, in Washington, D.C., October 14, 2020. (Bonnie Cash/Pool via Reuters)

2016—Over the public dissenting votes of ten of its judges, the Ninth Circuit issues an order declining to grant rehearing en banc of a divided panel decision in Oregon Restaurant & Lodging Ass’n v. Perez.

 This case provides a powerful illustration of how liberal judges and bureaucrats will engage in tag-team tactics to override unwelcome precedent and to invent legal obligations that assist favored constituencies. In brief: The unwelcome precedent here was a 2010 Ninth Circuit ruling that held that, by its plain language, a statutory restriction on a restaurant employer’s ability to require waiters to pool tips with non-tipped employees applied only to restaurants that did not pay waiters the minimum wage. Despite this holding, the Department of Labor in 2011 issued a regulation purporting to bar employers from requiring tip pools to include non-tipped employees, even if the employer was paying the tipped employees minimum wage. And in the divided panel decision in Oregon Restaurant, notorious liberal activist Harry Pregerson ruled that the Labor Department regulation was entitled to deference under the Chevron doctrine, even though the circuit precedent from 2010 held that the plain language of the statute meant otherwise.

2017—“The dogma lives loudly within you,” proclaims Senator Dianne Feinstein to Notre Dame law professor, and Seventh Circuit nominee, Amy Coney Barrett. Feinstein’s display of anti-Catholic bigotry in this comment and other questions earns widespread condemnation, including from liberals such as Princeton president Christopher Eisgruber and Harvard law professor Noah Feldman.

Law & the Courts

This Day in Liberal Judicial Activism—September 5

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(Roza/Dreamstime)

1969—By a vote of 4 to 3, the California supreme court rules in People v. Belous that the exception to California’s abortion ban for abortions “necessary to preserve [the] life” of the mother is “not susceptible of a construction … that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” On that flimsy basis (which the dissenters deride as a “negation of experience and common sense”), the majority invalidates the state’s abortion law. The decisive fourth vote is provided by a justice pro tem whose appointment to the case was engineered by California chief justice Roger Traynor.

 2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.