Law & the Courts

Excellent WSJ House Editorial on Abortion Polling

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Today’s Wall Street Journal carries an excellent house editorial, “The Contradictions of Abortion Polling,” that contests the “conventional wisdom … that the Supreme Court is walking into a gale-force political wind if it overturns Roe v. Wade.” As the editorial argues:

The real contradiction in the polling is Roe, which has become a totem that doesn’t reflect the underlying policy views. Fifty-five percent of Americans tell Gallup that abortion should be generally illegal in the second trimester. Yet a majority say the Supreme Court should keep Roe. That circle can’t be squared, and it probably reflects that many Americans don’t realize what Roe really allows.

In short, “whatever people tell pollsters about Roe as precedent, they can’t get the policy they seem to want until Roe goes and the political debate opens up.”

The editorial also points out how radical the so-called Women’s Health Protection Act (the bill in Congress being pushed by pro-abortion legislators) is:

That bill guarantees abortion access through viability, and through all nine months if a health provider deems the pregnancy a “health” risk…. It also protects sex-selective abortions and undercuts state laws that require parental involvement for minors.

Indeed, that bill is even more extreme—indeed, barbaric—than WSJ’s brief summary suggests.

The Supreme Court’s role, of course, is to get the Constitution right, not to be swayed by the political winds. But anyone who is a confident judge of those winds is fooling himself. As the editorial observes, “How the politics shakes out depends on how the debate and policies go in the states.” And, of course, in the coming election campaigns.

Law & the Courts

This Day in Liberal Judicial Activism—June 10

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1968What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood, in his own words, as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds? In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds.  

Law & the Courts

This Day in Liberal Judicial Activism—June 9

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2008—With opinions about to be issued concerning the en banc petition in Ricci v. DeStefano, Second Circuit judge Sonia Sotomayor and her panel colleagues—fellow Clinton appointees Rosemary Pooler and Robert Sack—evidently realize that they have failed in their bid to bury the claims by 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. They therefore convert their nonprecedential summary order dismissing the firefighters’ claims into an otherwise virtually identical per curiam precedential ruling dismissing the claims. 

Three days later, the Second Circuit issues an order denying en banc rehearing by a 7-6 vote. In a blistering dissent, Judge José Cabranes (also a Clinton appointee) condemns the panel’s mistreatment of the firefighters’ claims. As he sums it up: 

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.  

And then this killer understatement: 

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal. 

Cabranes expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” 

The Supreme Court proceeds to grant review and, one year later—while Sotomayor’s Supreme Court nomination is pending—reverses the panel decision. 

Law & the Courts

Courting Assassination

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A couple of thoughts on the horrific attempt to assassinate Justice Kavanaugh:

1. From the moment that Politico published the leaked draft of Justice Alito’s majority opinion in Dobbs, there was an obvious risk that someone seeking to thwart the overruling of Roe v. Wade and Planned Parenthood v. Casey might try to assassinate one or more of the five justices thought to be in the majority. The leaker’s creation of that risk is one of many reasons that the liberal-leaker theory has struck me as vastly more plausible than the conservative-leaker theory: For a liberal leaker, the risk of assassination might well be a feature, not a bug (at least for the fear it would induce).*

That’s why I immediately recommended three options for the Court to issue the Dobbs ruling forthwith, including this one:

A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.

Five weeks have passed since the leak. On the day after the leak, the Chief Justice declared, “The work of the Court will not be affected in any way.” But that declaration was seemingly blind to the reality that an assassination would (pardon the understatement) dramatically affect the work of the Court. Nonetheless, it appears that the Court has taken no steps to accelerate the issuance of its decision in Dobbs. The risk of an assassination will therefore persist—and surely intensify—until the Dobbs ruling is announced. (To be sure, some risk will continue after Dobbs is announced, but the incentive will be far weaker.)

On what legitimate theory can the dissenting justices continue to dawdle?

2. Let’s not forget Senate Democratic leader Chuck Schumer’s appalling statements at a pro-abortion rally outside the Supreme Court two years ago:

I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the priceYou won’t know what hit you if you go forward with these awful decisions.

Schumer stated the following day that he “should not have used [those] words” and that they “didn’t come out the way I intended to.” But it’s especially incumbent on him to make a much more forceful denunciation of violence against the justices.

* I’ve tweaked this sentence since original posting.

Law & the Courts

Let’s Recall Sotomayor’s Strange Praise for Chesa Boudin

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Given the focus of Bench Memos, I will leave it to others to explore the lessons to be drawn from San Francisco voters’ thrashing recall of progressive district attorney Chesa Boudin. I instead will recall Justice Sonia Sotomayor’s strange decision to send Boudin a video of ardent congratulations for his swearing-in in January 2020, a “surprise video” that “prompt[ed] gasps” from the large audience celebrating the event.

Sotomayor’s video was strange in at least two respects. First, she had no evident ties to Boudin that might justify a simple congratulations. Second, her video comments went far beyond simple congratulations:

I sent you this message to tell you how much I admire you.

[Y]ou too [i.e., like Sotomayor herself, as the context makes clear] are an example that gives hope to so many.

Your personal strength and commitment to reforming and improving the criminal justice system is a testament to the person you are and the role model you will continue to be for so many.

I hope you reflect as a great beacon to many.

[T]he city of San Francisco will be so very well served by a man whose life creed is believing, as you told me “We are all safer when we uplift victims, hold everyone accountable for their actions, and do so with empathy and compassion.”

As I wondered in my original post, how was it proper for a Supreme Court justice to take part in public cheerleading for an elected official?

Will Sotomayor now bless us with her reaction to Boudin’s recall?

Law & the Courts

This Day in Liberal Judicial Activism—June 7

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1965Griswold v. Connecticut arose when the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced 

In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern.  

Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt v. Baird (see This Day for March 22, 1972) would confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.” 

Law & the Courts

Distorting Alito, Part 13,214

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I haven’t tried to keep up with all of the attacks on the leaked draft in Dobbs, but a couple of very odd recent posts by law professor Sherry Colb caught my attention.

In one of the posts, Colb purports to analyze the opening sentences of Justice Alito’s draft. But she never actually quotes those sentences, and she badly misreads and misrepresents them. Here is the opening paragraph of Alito’s draft:

Abortion presents a profound moral issue on which Americans hold sharply conflicting views. Some believe fervently that a human person comes into being at conception and that abortion ends an innocent life. Others feel just as strongly that any regulation of abortion invades a woman’s right to control her own body and prevents women from achieving full equality. Still others in a third group think that abortion should be allowed under some but not all circumstances, and those within this group hold a variety of views about the particular restrictions that should be imposed. [Underlining added.]

Colb argues that “[w]omen who must remain pregnant and birth children against their will simply DO lack control over their own bodies,” and she complains that Alito “demotes what are plain facts to opinion or perspective.” On the other hand, she contends, Alito “credits the belief that a zygote is a baby,” even though, “[a]s commonly understood, the word ‘baby’ does not include a zygote.” By her account, Alito “treats as similar an undeniable fact about forced pregnancy with a false factual claim about what a baby is,” and his “drawing of this equivalence constitutes a lie about a zygote being a baby.”

Let’s unpack Colb’s errors.

1. In presenting the perspective held by many supporters of abortion, Alito states that they believe that “any regulation of abortion invades a woman’s right to control her own body” (by aborting the other body growing inside of her). It is the assertion of that right as dominant that presents a moral claim, not an “undeniable fact.” Colb simply misses this basic point.

2. Colb uses the word baby thirteen times, including twice in quotes, in describing Alito’s supposed account of the pro-life position. Colb’s readers would surely be very surprised to discover that Alito doesn’t use the word baby at all in the passage that she is objecting to. Indeed, he uses the word baby only once in his entire opinion, in referring to the “newborn [put] up for adoption.” Colb seems eager to obscure that the pro-life position, far from resting on “a false factual claim about what a baby is,” builds on the biological fact that the life of a human being begins at conception.

3. Colb’s assertion that Alito “credits the belief that a zygote is a baby” is wrong in a second sense. Alito isn’t crediting anything. He’s dispassionately describing the position of many pro-lifers, just as he dispassionately describes the position held by many supporters of abortion.

4. To top it off, Colb snarkily refers to Alito’s “hero Sir Matthew Hale,” as if Alito’s use of Hale as an authority on the common law is any different from Justice Kagan’s or Justice Breyer’s use of Hale.

In a second post, Colb imagines that Alito might have put the phrase “potential life” in quotes in order “to signify his own rejection of the idea that an ensouled zygote could be anything less than a fully realized person, entitled to take what it needs from its living incubator’s bloodstream.” (Colb is fond of the notion that the unborn child is a parasite.) Colb contends that Alito is “egregiously wrong” in supposedly thinking that “a zygote has an interest in going from potential to actual personhood.”

Alito puts the phrase “potential life” in quotes for the simple reason that he is quoting Roe v. Wade and Planned Parenthood v. Casey. Alito himself takes no position anywhere in the draft on what “interest” a zygote or embryo or fetus might have at various stages of gestation. He instead merely recognizes that there is a legitimate state interest in protecting prenatal life.

What’s more striking is the alternative position that Colb advances:

As moral philosophers have long explained, having an interest means being the sort of creature for whom life could go well or ill. You have interests, and you know that because asking you “how do you feel?” is a coherent question when posed to you. The same question posed to an orange seed or a zygote does not make any sense. Neither an orange seed nor a zygote has preferences, fears, or any of the other feelings and sensations that would give them interests.

I can’t tell from Colb’s account at what point she believes that a human being has “an interest” in not being killed. Does a newborn have “preferences” or “fears”? Does a one-year-old baby know to regard “how do you feel?” as a coherent question? Does Colb really imagine that she is presenting a consensus view of moral philosophers?

Much of the rest of Colb’s post is a bizarre riff on her confusion between gametes (“That ripe egg is a potential person”) and the genetically complete and distinct human organism that comes into being at conception.

Law & the Courts

This Day in Liberal Judicial Activism—June 5

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1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime will be voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it mis-imagines contemporary standards to be. (See This Day for February 18, 1972.)  

Law & the Courts

On the Constitutional Authority of Congress to Protect Unborn Persons

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A man holds a sign during an anti-Planned Parenthood vigil outside the Margaret Sanger Health Center in New York, February 11, 2017. (Andrew Kelly/Reuters)

In a new post at The Volokh Conspiracy, Professor Jonathan Adler contests our claim in a Washington Post opinion article that Congress may, under Section 5 of the Fourteenth Amendment, exercise its “power to enforce, by appropriate legislation” the equal protection guarantee for unborn children, protecting the unborn from state laws allowing elective abortion.

Adler objects that (1) the Supreme Court in City of Boerne v. Flores “rejected” our “broad” view of Congress’s Section 5 power when it held that (2) Congress has only “the power to enforce the 14th Amendment’s guarantees” but lacks “the power to redefine what those guarantees are.” We will show that this objection lacks merit. Boerne is no obstacle, as our proposal would not redefine the Amendment’s guarantees.

(1) Did City of Boerne v. Flores “reject” the view we outlined in the Washington Post? No. Certainly, the Court held that enforcement legislation must be remedial — that is, it must be “responsive to, or designed to prevent, unconstitutional behavior” — and that there must be a “congruence and proportionality between the injury to be prevented or remedied and the means adapted to that end.” The Court in Boerne thus set aside Congress’s application of the Religious Freedom Restoration Act to the states because that Act was based on an understanding of the First (and Fourteenth) Amendment’s guarantees that the Court had rejected in an earlier case, and because the Act pervasively prohibited state action that the Court had deemed constitutional.

But even if Boerne’s insistence on the supremacy of the Court’s interpretation of the Constitution over Congress’s were correct as an original matter (which we doubt), nothing in Boerne bars Congress from enacting remedial legislation to prevent and remedy state actions that deprive unborn children of the equal protection of the laws. Again, Boerne taught only that Congress — in justifying its actions under Section 5 — may not contradict the Supreme Court’s own reading of the equal protection or due process clauses. But Congress would not be contradicting the Court by treating the unborn as constitutional persons under those clauses post-Dobbs. For if Dobbs overturns Roe and Casey, the Court will have no holdings on whether unborn children are constitutional persons: Roe’s rejection of the personhood of the unborn will be gone, and nothing in Dobbs itself forecloses constitutional personhood for children in utero. In fact, notwithstanding dicta about returning the abortion question to democratic processes, Dobbs’s rationale for distinguishing other substantive due process cases — based on the state’s interest in what Roe (misguidedly) called “potential life”—actually moves the Court closer to the personhood argument.

Congressional enforcement in this context would thus be quite different, and easily distinguishable, from the legislative action considered in Boerne. It would rest on a congressional understanding of the Fourteenth Amendment that has not been rejected by the Court. And Boerne did not preclude Congress from getting ahead of the Court by treating something (here, state permission of abortion) as a Fourteenth Amendment violation before the Court has spoken on the issue either way. Indeed, the reverse is true: Boerne affirmed that “it is for Congress in the first instance to ‘determine whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.’”

(2) Would congressional action to ensure equal protection for the unborn “redefine” the scope of the Fourteenth Amendment? No again. As we have explained elsewhere, unborn human beings were, at the time of ratification, understood to be both (1) natural persons in law, and (2) persons in ordinary, plain meaning. And we now know better than ever — due to advancements in embryology and the science of human development — that these tiny human beings are as a matter of biological fact whole, living members of the species Homo sapiens, and as such members of the human family, just as newborn infants, young children, and human beings at every other developmental stage are. Federal protection for the unborn would therefore enforce, not redefine, the Amendment’s guarantee of equal protection.

Adler provided no historical support for his view that Congress cannot legislate to protect unborn persons — nor could he have done. In reality, the original meaning of Section 5 was broader than Adler suggests. In the words of Senator Jacob Howard, this provision “enables Congress, in case the States shall enact laws in conflict with the principles of the amendment, to correct that legislation by a formal congressional enactment.” Or as Representative Thaddeus Stevens put it, Section 5 “allow[s] Congress to correct the unjust legislation of the States.” Hence the Supreme Court’s 1879 decision in Ex Parte Virginia, which affirmed that the Amendment “was to secure equal rights to all persons, and, to insure to all persons the enjoyment of such rights, power was given to Congress to enforce its provisions by appropriate legislation.”

Shortly after the Amendment’s ratification, Congress drew on its enforcement power to fight the Ku Klux Klan’s campaign of harassment, abuse, and murder against freedmen on account of their race. Congress enacted the Enforcement Acts of 1870 and 1871, allowing the federal government to intervene when state officials withheld the protection of the laws from freedmen, and creating liability for officials and individuals who conspire together to deprive any person of civil rights or the equal protection of the laws. This was closely tied to what Professor Christopher Green has persuasively shown to be the original sense of the equal protection clause — to ensure that states supplied the (equal) protection of the laws. So too here. No “redefinition” of the equal protection guarantee would be necessary to ensure that it applies with equal force to unborn persons.

For that reason, the legislative filibuster and President Biden’s veto must not deter energetic action by pro-life members of Congress to protect unborn children nationwide. And if such legislation is not forthcoming, then the Supreme Court should not hesitate to vindicate the rights and protect against the victimization of vulnerable persons in the womb.

Robert P. George is McCormick Professor of Jurisprudence and director of the James Madison Program in American Ideals and Institutions at Princeton University. Josh Craddock is an affiliated scholar with the James Wilson Institute on Natural Rights and the American Founding.

Law & the Courts

Elective Abortion and the 14th Amendment: A Reply to Jonathan Adler

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(CastaldoStudio/iStock/Getty Images)

Professor Jonathan Adler recently posted about a Washington Post opinion article by Robert George and Josh Craddock, which argued that Congress should legislate to enforce the equal protection rights of unborn human beings. In doing so, he linked to and incorporated his earlier post on the merits of the amicus brief we filed in Dobbs, which argued that unborn children are “persons” within the meaning of Section 1 of the 14th Amendment. We’re taking this opportunity to respond to both posts, beginning with Adler’s critique of our amicus brief.

Adler refers to what we say the 14th Amendment requires of the Court 15 times – ten times as “prohibit abortion,” four times as (some version of) “treat all abortion as fully equivalent to homicide.” Only in the last reference but one, the 14th of the 15, are we allowed to speak: “state homicide laws would need to forbid elective abortion.” In reality, of course, homicide comes in many types and grades. Giving the unborn (and not yet fully born) equal protection against being deprived of life does not require states to codify elective abortion high on that list of gradations. Nor does it require – or even permit – prohibition of medical interventions to save the mother’s life that tragically and unavoidably result in fetal death.

But does the 14th Amendment speak to abortion at all? Adler says no. No justice has ever held it does, “and no justice who considers himself or herself bound by the original public meaning of the 14th Amendment ever should.”

As Adler notes, the issue – like our position – involves “two separate propositions.” He formulates them correctly, but to make clearer that they’re the premises of a valid (and sound) argument, we’d say: First Premise: If the unborn are persons, the 14th Amendment requires prohibition of elective abortion. Second Premise: The unborn are persons within the original public meaning of the Amendment’s due process and equal protection clauses. Conclusion: The 14th Amendment requires prohibition of elective abortion.

So Adler’s repeated “No justice has ever held. . .” needs major qualification. No justice has ever denied the First Premise, and the seven justices in the Roe majority expressly affirmed it: “[Texas] and certain amici argue that the fetus is a ‘person’ within the meaning of the Fourteenth Amendment. . . If this suggestion of personhood is established, [Roe’s] case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Fourteenth Amendment.”

Indeed, Justices Blackmun, Brennan, and Marshall all affirmed in Webster v. Reproductive Health Services what Justice Stevens had previously said in Thornburgh v. American College of Obstetricians and Gynecologists: If the unborn child is a “person” then “the permissibility of terminating the life of a fetus could scarcely be left to the will of the state legislatures.”

In other words, the Supreme Court has already rejected the last seven paragraphs of Adler’s article – everything that he says after contesting the Second Premise but then accepting it arguendo for the sake of considering and contesting the First Premise.

True, the Court’s acceptance of the First Premise seems compromised by what it later said about the severity of the prohibition required if the Second Premise were true. So, for sure, the whole matter needs re-arguing, as to both premises. Adler denies both premises, mistaken about each. (And much in his last seven paragraphs is really relitigating the Second while seeming to talk about the First. So, anyway, we’ll take his seven arguments in his order.)

But we won’t be rehearsing here the manifold reasons we’ve advanced for regarding the original public meaning of “any person” in the due process and equal protection clauses as including the unborn, which, remarkably, Adler completely ignores: how startlingly prominent in the thought of the Amendment’s drafters and ratifiers was Blackstone’s page expounding the first of the Rights of Persons, their right to life, exemplified first by the common law’s protection of that right of the “child en ventre sa mere”; how 18th century cases, embraced by authoritative American precedents decades before ratification, declared the general principle that unborn humans are rights-bearing persons from conception; how extensively the ratification generation legislated to conform common law protections to the new science of human beings’ early gestation; and so forth.

So, now to the arguments Adler does make.

One. “As most originalists believe it is the [privileges or immunities] clause that is the source of substantive rights under the Fourteenth Amendment,” and that clause extends only to citizens “born or naturalized in the United States,” “an originalist could stop there and conclude that the 14th Amendment does not extend any substantive right to the unborn.” Red herring. Regardless of whether the equal protection clause extends any substantive rights (and originalists such as Christopher Green suggest it might), we do not need to prove that it does.  We need only to prove that the clause secures the protection of the laws to the unborn on the same basis that they are secured to the born.

Two. The unborn are not persons within the scope of any clause of the Constitution other than its due process and equal protection clauses, particularly not within Section 2 of the 14th Amendment, the enumeration clause. But it simply doesn’t follow that the unborn are excluded from the due process and equal protection clauses. Aliens and corporations are also within those clauses but almost no others. (Resident aliens may be enumerated, but by convention neither corporations nor the unborn are.) There is nothing dubious or anomalous about the all-embracing scope of the due process and equal protection clauses, which were conceived as – and by their own terms are – great foundational anchors or guarantors of the natural rights of which Blackstone wrote, and so as going far deeper than the conventions governing censuses, and as being valid against all arms of government, even Congress itself (their primary guarantor under Section 5 of the Amendment).

Three. Corporations have been brought within the protection of due process and equal protection only for some purposes, and only because the Court has looked (as in Pembina in 1888) through the corporate veil to the natural persons who enjoy due process or equal protection rights. Too quick. The more stable and adequate foundation for the due process and equal protection rights of corporations is their appearance in the legal taxonomy of persons as natural and artificial, exemplified in the chapters of Blackstone’s Commentaries that begin with the status and rights of the child en ventre sa mere and end with corporations as artificial persons (with little or no concern to peer behind the veil). And the unborn, too, neither have nor need rights beyond a few fundamental rights, above all to life pending their full emergence into the public world.

Four. “There is zero evidence that [the due process] clause was ever understood to prohibit abortion. . .” and “the Due Process Clause of the 5th Amendment was never interpreted or understood to impose any limitations on abortion within the District of Columbia.” An absurd distraction. The limitations on abortion in the District of Columbia, from the moment of its formation out of Virginia and Maryland, derived not from the 5th Amendment, nor from statute, but from the common law as it had applied in Virginia and Maryland (not to mention all the other states). Under that common law: (i) Every elective abortion, however early in pregnancy and however skillfully conducted, was murder if it resulted within a year and a day in the death of the aborted woman; (ii) every elective abortion, however early, was murder if the child it sought to destroy survived birth even by moments before succumbing from the abortifacient damage; (iii) every elective abortion of a woman “quick with child” was a “great misprision” or serious misdemeanor, at least if it succeeded in causing the child’s death before or after birth, and until the 19th century “quick with child” was widely understood to mean as from the sixth week of pregnancy.

The due process clause, whether of the 5th or the 14th Amendment, would only have been engaged if a territorial or state legislature had purported to deny the unborn these common law protections of their right to life. But the entire thrust of legislative action about abortion from the 1820s through the 19th century (and down to 1960) was not to deny but to strengthen that already robust common law protection of the right to life by prohibition of elective abortions.  Legislatures in states where a court had (mis)interpreted “quick with child” to mean “from quickening” (about the 15th week of pregnancy) were prompt to plug the gap and extend rule (iii) to even the earliest stage of pregnancy. This they did, usually, with unanimity, for the sake of the unborn child and the health and life of the mother. Indeed, this was true in D.C. itself, which took legislative actions in 1855 and 1872 to clarify its prohibition against abortion “in any stage of pregnancy.”

Five. “Few states have ever treated abortion as fully equivalent to intentional homicide.” But some have treated elective abortion as manslaughter, and the other jurisdictions, more numerous, treated it as a serious offense, while marking the unborn child’s unique dependence, absence from the social world, unknown characteristics and so forth, by following the common law (as stabilized definitively in the 17th century) in treating it as a sui generis serious offense, not itself named homicide, but classified among offenses against the person.

“Equal protection of the laws” does not require uniformity of treatment, but absence of distinctions lacking rationally sufficient basis. A margin of appreciation allows for distinctions in penalties between murder of various degrees, manslaughter of various kinds, and abortion—all of which existed before the abortion “reform” laws of the 1960s, had a rational basis, and were constitutionally permissible.

Six. Appeals to the equal protection clause were not made by the 19th century abortion-law reformers. So it was no part of the original meaning of the clause that the unborn be protected by it. Too quick. Adler ignores the article in which Finnis elaborated the ways in which the original public meaning of these clauses was obscured by historical circumstances. A taste:

In all such matters, the equal protection clause (and somewhat similarly the due process clause) seemed to everyone irrelevant: Race discrimination aside, the amendment would not be engaged unless the state’s legal protection of some class of person’s rights or interests had been recently reduced.

Our brief summarily recalls how even the most obvious appeals to the equal protection clause, to advance the cause of women’s rights to qualify as advocates and so forth, were never made:

For example, litigants fighting discrimination against women appealed to the Amendment’s first sentence but never its Equal Protection Clause. That is inexplicable except based on early assumptions about that Clause’s application that would also have blocked early appeals to the Clause by those seeking to bolster fetal protections. These blocking assumptions, when articulated by courts, proved to concern not the meaning of “any person” but the import of “deny … the equal protection of the laws.” They were soon rejected. Under the corrected understanding of “equal protection,” plus the public meaning that the Clause’s “any person” phrase always had, the Clause protects the unborn against state laws permissive of elective abortion.

Against the background of such silences about conspicuously apparent real-time denials of equal protection to walking-around persons, it is simply false to say, with Adler, that “the absence of a single dog barking [about abortion] in any state, is more than conspicuous.”

Our brief recalls the established authorities about original public meaning, such as the Dartmouth College case, that show how the inattention of the Founders and founding generations to the full authentic scope of their chosen legal terms is not decisive against the weight of evidence about those terms’ established meaning and applicability.

Seven and lastly, our reading of the 14th Amendment would “greatly distort our constitutional structure” by requiring or authorizing Congress and the federal judiciary to “rewrite state laws and mandate their enforcement.” But it is six or seven decades too late to take this complaint seriously. Whatever the uproar that would follow any reversal of Roe, the judicial supervision of state (or congressional) abortion law that would be needed – if the reversal took the form we propose – would neither in range nor in content be anything like as ambitious as many of the forms of judicial supervision mandated since Brown v. Board of Education. Again, Adler passes by in silence what Finnis sketched about this issue, cross-referenced in our Brief. The Court would need to set some minimum standards of sufficient prohibition of elective abortion, but beyond these minima, which would presumably be strongly related to the historic standards in place everywhere before 1960, everything would be for the states and their people.

So both the First and the Second Premises are sound, and the Conclusion follows. Of course, the people of the nation retain ample power to amend the Constitution if they are dissatisfied with the Conclusion – with what their predecessors in 1868 wrought by way of constitutional underpinnings for the common law protections of human beings in the womb, protections they assumed were constitutionally sufficient and in need, at most, of marginal extensions and removal of procedural obstacles to enforcement. No one then, even the feminists, imagined Roe’s fantastic “common law liberty of abortion,” or spoke or conducted legal discussions about “fetuses.” Anyone who does so cannot understand the original public meaning of the 14th Amendment. Adler does not make that mistake. But he has, we think, misunderstood the Amendment’s Equal Protection implications for Roe, Casey, and Dobbs.

John Finnis is professor of Law and Legal Philosophy emeritus at Oxford University and Biolchini professor of law emeritus at the University of Notre Dame. Robert P. George is McCormick professor of Jurisprudence at Princeton University.

Law & the Courts

This Day in Liberal Judicial Activism—June 3

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1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim. 

In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.” 

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Feminists of the Past Abhorred Abortion

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In the weeks since the leak of the Dobbs v. Jackson Women’s Health Organization opinion, defenders of Roe v. Wade have reverted to a number of red herrings to avoid confronting the abortion precedent on its own extraordinarily weak merits. One particularly curious distraction has been to note the absence of women in the framing of the original 1787 Constitution or the amendment invoked by litigants on the abortion issue, the Fourteenth Amendment, which was ratified in 1868.

Of course “[t]here is nothing in that document about women,” writes Harvard history professor Jill Lepore. There were no women judges, legislators, participants in the ratifying process, or (with fleeting exceptions) even voters. Victoria Nourse of Georgetown Law similarly complains that “Alito’s opinion is all about an understanding of the 14th Amendment in 1868, turning the clock back to a day when women could not vote or practice law and legally dissolved into their husbands.” She concludes, “If originalism is the ‘only way’ to read the Constitution, then women are invisible.” Other commentators, prominently including former New York Times Supreme Court correspondent Linda Greenhouse, hinge their critiques on the absence of women in the Dobbs draft itself. The implication seems to be that if women of the time had been given a voice they would have spoken in favor of a right to abortion. That couldn’t be further from the truth.

Ironically, of the thousands of words that are cumulatively written by these and other pro-Roe authors, not one is offered to cite the views of women who lived during these constitutionally formative periods in American history on the abortion issue. As they carp about the invisibility of women who did not have a voice, their articles keep the women of the generation that first fought for women’s suffrage mute.

There is an obvious reason for pro-abortion commentators to omit the most prominent American women who lived during the ratification of the Fourteenth Amendment: They shared a virtually unanimous abhorrence of abortion. The Revolution, the newspaper established by Susan B. Anthony and Elizabeth Cady Stanton, refused to publish advertisements for “Foeticides and Infanticides” and had the following to say about women who had abortions:

[N]o matter what the motive, love of ease, or a desire to save from suffering the unborn innocent, the woman is awfully guilty who commits the deed. It will burden her conscience in life, it will burden her soul in death; but oh, thrice guilty is he who drove her to the desperation which impelled her to the crime!

Stanton classified abortion as a form of “infanticide,” denounced the “murder of children, either before or after birth,” and asserted, “We believe the cause of all these abuses lies in the degradation of women.” Among several recorded statements reflecting her disapproval of abortion, Anthony similarly lumped abortion with infanticide and other forms of killing among the negative consequences of the “monster evil” of “intemperance.”

The prevailing attitude of feminists of that era was expressed by the activist Matilda E.J. Gage—“that most of this crime of ‘child murder,’ ‘abortion,’ ‘infanticide,’ lies at the door of the male sex.” Even radical adherents of the “free-love” wing of feminism shared the abhorrence of abortion expressed by activists of a different stripe. Perhaps the consummate example is Victoria Woodhull, the first woman to run for president. “The rights of children . . . as individuals, begin while yet they are in foetal life,” she asserted in an address in 1871, and she added in a letter to the editor a few months later, “I hold abortion (except to save the life of the mother) to be just as much murder as the killing of a person after birth is murder.” That was a view repeatedly expressed in her newspaper, Woodhull & Claflin’s Weekly.

The strain of feminism that has adopted abortion as its cornerstone is a relatively recent phenomenon in American history. So weak is the pedigree of the notion of a right to abortion that even Margaret Sanger, the founder of what became Planned Parenthood, rejected it. She called the practice “an alternative that I cannot too strongly condemn” and advocated its use only to save the life of the mother. She lived until 1966, a century after Congress proposed the Fourteenth Amendment.

It should be no surprise, then, that commentators who seek to defend Roe would resist acknowledging what any of these women had to say about abortion. To suggest that the Constitution would have been protective of abortion if women were allowed equal participation in the political process flies in the face of Stanton’s own proposal that the “only remedy” to the “crimes” of abortion and feticide was in fact “the education and enfranchisement of woman.” Knowing well the views of women of her time, she was confident their participation in the political process would in fact move the laws to be more protective of life, not of abortion.

In truth, many of today’s pro-abortion commentators not only keep the women of the past invisible, but also ignore the voices of today’s pro-life women. They write as if women’s political participation can only legitimately translate into advocacy of abortion—an assumption that is as insulting and morally callous as it is incorrect.

Today’s pro-life movement is impossible to imagine without women. Indeed, the largest pro-life organizations, including National Right to Life, the Susan B. Anthony List, the March for Life, and Americans United for Life, are headed by women. They and the millions of American women they represent are not invisible, and no pro-life policy achievement in the future will be possible without women. They are making their voices heard, just as the suffragists of the past would have wanted them to.

Law & the Courts

This Day in Liberal Judicial Activism—June 1

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1992—In Davis v. Davis, the Tennessee supreme court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail.…” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe 

In 1993, President Clinton will appoint Daughtrey to the Sixth Circuit. 

Law & the Courts

Las Vegas and Orange County Events

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I’ll be speaking later this week to two Federalist Society lawyers chapters on “Dobbs and Abortion: A Long View”—basically, where we are, how we got here, and what lies ahead. I’ll speak to the Las Vegas lawyers chapter on Thursday, June 2, and to the Orange County lawyers chapter, on Friday, June 3. Both events include lunch, and at least one of the two should provide CLE credit.

Law & the Courts

This Day in Liberal Judicial Activism—May 31

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 1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.) 

2017—A sharply divided limited en banc panel of the Ninth Circuit rules (in U.S. v. Sanchez-Gomez) in favor of four criminal defendants who challenged a court’s policy of routinely having pretrial detainees shackled for pretrial proceedings. In his six-judge majority opinion, Judge Alex Kozinski concludes that the challenges are not moot even though the defendants’ cases have ended because the defendants were seeking “class-like relief” in a “functional class action.” The majority opinion further holds that the court’s policy violates the Fifth Amendment. 

In her five-judge dissent, Judge Sandra Ikuta complains that majority “ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution.” 

Less than a year later, a unanimous Supreme Court will agree with Ikuta that the case should have been dismissed on grounds of mootness. Even the defendants who brought the challenge decline to defend the Ninth Circuit’s reasoning.  

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This Day in Liberal Judicial Activism—May 30

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2017—In Whitaker v. Kenosha Unified School District, a Seventh Circuit panel affirms the grant of a preliminary injunction that requires a school district to allow a girl who identifies as male to use the boys’ restrooms at her high school. The panel holds that Title IX and the Equal Protection Clause of the Constitution both prohibit discrimination against an individual based on that individual’s failure to conform to sex stereotypes. But the panel somehow completely misses the larger point that it is the transgender ideology that is built on sex stereotypes. 

As a result, the panel has things exactly backwards. It is sex stereotyping to say that a girl who looks like a boy should use the boys’ restroom. But that is exactly the relief that the student seeks and that the panel has ordered. It is patently  not  sex stereotyping to say that a girl who behaves, walks, talks, and dresses in a manner that doesn’t conform to sex stereotypes should nonetheless be treated as a girl and should use the girls’ restroom. 

Law & the Courts

This Day in Liberal Judicial Activism—May 29

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1992—According to Jan Crawford’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.” The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge. One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role. (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk? Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf. An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.” 

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ACLU: ‘Egregiously Wrong’ Precedent Should Be Overruled

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In applying the doctrine of stare decisis in Dobbs, Justice Alito’s outstanding draft discusses at length “five factors” that “weigh strongly in favor of overruling Roe and Casey: the nature of their error, the quality of their reasoning, the ‘workability’ of the rules they imposed on the country, their disruptive effect on other areas of the law, and the absence of concrete reliance.” (See pp. 39-62.)

It turns out that many progressive advocacy groups think that the Alito draft gives too much deference to precedent.

Yesterday a dozen of these groups—including the ACLU, the Brennan Center for Justice, the Human Rights Campaign, and the Leadership Conference on Civil and Human Rights—filed an amicus brief in the Supreme Court in support of a certiorari petition (in Fitisemanu v. United States) that asks the Court to overrule the so-called Insular Cases and to hold that persons born in U.S. Territories are entitled to birthright citizenship under the Fourteenth Amendment.

In their brief, the ACLU and company set forth two “compelling” reasons why the Court should overrule the 120-year-old Insular Cases. Their first reason is that the Insular Cases “are ‘egregiously wrong as a matter of law,’” (quoting Justice Kavanaugh’s concurring opinion in Ramos v. Louisiana (2020)), as they have “no foundation in the text or original understanding of the Constitution.” Their brief explicitly states that they regard this defect as sufficient to warrant overruling those precedents:

The Insular Cases’ lack of foundation in the Constitution’s text, structure, or history is reason enough to overrule them. [Emphasis added.]

(I will note that in its amicus brief in Dobbs the ACLU maintains, implausibly, that a right to abortion is “firmly rooted” in the Constitution, so I am not suggesting that its positions in the two cases are formally inconsistent.)

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This Day in Liberal Judicial Activism—May 28

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1963Retired justice Felix Frankfurter, having witnessed the appointment of his replacement, Arthur Goldberg, create a majority bloc of liberal activists on the Supreme Court, writes to Justice Harlan to lament “the atmosphere of disregard for law and to a large extent of the legal profession that now dominates the present Court and the Court on which I sat.” (Source: Seth Stern & Stephen Wermiel, Justice Brennan.) Decades later, the situation will be transformed—but, alas, for the worse—as “a large extent of the legal profession,” having been indoctrinated by the disciples of the Warren Court, will display a similar “disregard for law.” 

2013—In two 5-4 rulings (with Justice Kennedy joining the four liberals), the Supreme Court creates more confusion over federal habeas procedures.   

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, creates an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996. Never mind, as Justice Scalia points out in dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.” 

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadens a purportedly “narrow exception” that it had created just the previous year. As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in that earlier ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.” 

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his dissent in the earlier case that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year. 

The broader lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings, as those limitations will disappear at the first convenient opportunity.   

Law & the Courts

This Day in Liberal Judicial Activism—May 27

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2009—Odd bedfellows, indeed! Supposed constitutional conservative Theodore B. Olson, solicitor general under President George W. Bush, betrays the legal principles that he has purported to stand for over the course of his public career as he joins forces with liberal David Boies, his adversary in Bush v. Gore, to file a lawsuit asking a federal district court in California to invent a federal constitutional right to same-sex marriage.

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Research Shows No Historical Evidence of Right to Abortion

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Protesters stand outside the Supreme Court after the leak of a draft majority opinion written by Justice Samuel Alito preparing for a majority of the court to overturn the Roe v. Wade abortion decision later this year, in Washington, D.C., May 2, 2022. (Jonathan Ernst/Reuters)

When the case of Dobbs v. Jackson Women’s Health Organization was argued in the United States Supreme Court, Justice Samuel Alito asked the attorney for Jackson Women’s Health, Julie Rikelman, “Can it be said that the right to abortion is deeply rooted in the history and traditions of the American people?” Rikelman responded, “Yes it can, Your Honor. At the founding women were able to end their pregnancy under the common law . . . and well into the 1800s women had the ability to end a pregnancy.” Chief Justice John Roberts asked a similar question to U.S. solicitor general Elizabeth Prelogar, who gave a similar response: “At the time of the founding and for most of early American history, women had an ability to access abortion in the early stages of pregnancy.”

However, a recent article in the Harvard Journal of Law and Public Policy soundly refutes any claims to abortion rights as part of the history, tradition, and/or common law of the United States. The authors, Stephanie Nicole Miller and Mary Kay Bacallao, researched the issue using the Corpus of Founding Era American English. COFEA is a digitized database drawing from over 126,000 texts totaling over 136 million words commonly read from the period beginning with the reign of King George III and ending with the death of George Washington.

To summarize the article, the term “abortion” was most often used as a synonym for miscarriage. Indeed, only twelve examples could be found where the term was used to describe a voluntary termination of a pregnancy. Not one of those twelve examples referred to any common-law right to intentionally terminate a pregnancy.

Since the leak of the draft majority opinion (arguably the most serious breach of security, decorum, and ethics since Watergate), it would appear Justice Alito was not convinced by either Rikelman or Prelogar’s answer to this question. The inaccuracy of the response notwithstanding, the attempt to characterize abortion as a right recognized in the common law, tradition, or history of the Founding era may be even more demonstrative of a larger truth. The end of the “living document” era is nigh.

In the past, attempts to insert rights not found in the text of the Constitution would likely have responded to questions about the history and tradition of the United States by asserting that its authors could not have possibly anticipated all the problems of modern society, the necessary means of addressing them, or the ever-changing cultural norms of an increasingly diverse population.Hence, the living document must evolve to reflect a common understanding of its text today even if that understanding conflicts with that of the authors. The closest to the text these theories come is in Justice William Douglas’s “penumbras and emanations” of the Bill of Rights. This method of constitutional interpretation is akin to shaking the Magic 8 Ball until one’s desired response appears.

When the U.S. Supreme Court publishes its official decision in the Dobbs case, assuming the published opinion hues closely to the draft opinion, the battleground will shift to the policy-making branches of the state and federal legislatures. The era of abortion in America may not be over, but the debate over the textual interpretation of the Constitution may be. We’re all originalists now.

Lathan Watts is the vice president of public affairs for Alliance Defending Freedom.

Law & the Courts

Judicial Bureaucrat Proposes Vulgar LGBTQ+ Reading List for Federal Judges

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Rod Dreher calls attention (severe vulgarity alert!) to a reading list of LGBTQ+ books that Tiffany D. Blakey, Fair Employment Practices Officer at the Administrative Office of the United States Courts, has somehow seen fit to propose to all federal judges to celebrate “National LGBTQ+ Pride Heritage Month.”

I don’t know what authority Blakey thinks she has to decree such a celebration. For what it’s worth, while President Biden proclaimed such a month last year and is sure to do so again this year, he hasn’t yet done so, and even if he had, why would a low-level officer in the bureaucratic apparatus of the judicial branch take it upon herself to treat Biden’s proclamation as governing the judicial branch?

Here is Blakey’s memo, which she sent by email to these recipient categories:

Courts of Appeals Chief Judges, Courts of Appeals Active Judges, Courts of Appeals Senior Judges, District & National Court Chief Judges, District & National Court Active Judges, District & National Court Senior Judges, Bankruptcy Court Chief Judges, Bankruptcy Court Judges, Full-time Magistrate Judges, Part-time Magistrate Judges, Circuit Executives, Federal Public Defenders, Community Defenders, District Court Executives, Courts of Appeals Clerks, District & National Court Clerks, Bankruptcy Court Clerks, Chief Probation Officers, Chief Pretrial Services Officers, Senior Staff Attorneys, Circuit Librarians, Chief Circuit Mediators, Bankruptcy Administrators.

In Dreher’s words, the list is “all trashy softcore and romance novels” and does not contain “[a]ny serious title about LGBT history or life — such as James Kirchick’s recently published (and well reviewed) Secret History, about closeted gay life in Washington.”

Blakey states that she believes that these books can “be used as part of a larger fairness[-]in[-]employment program.” “Sure,” replies Dreher, “if you want to employ mouthy lesbians who hate pro-lifers and the Catholic Church, gay guys who seduce straight ones, and men who want to be sexed by other men they call ‘Daddy.’”

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MALDEF Blasts Biden for ‘Shabby Treatment’ of Latino Judicial Candidates

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Yesterday the Mexican American Legal Defense and Educational Fund issued a remarkable statement slamming President Biden for his “ongoing shabby treatment of the Latino community” in judicial nominations. MALDEF’s condemnation of Biden provides a stark illustration of the incoherence of the Left’s demand for diversity.

What triggered MALDEF’s attack on Biden was the White House’s announcement of three new federal appellate nominees: Florence Pan to the D.C. Circuit (filling the seat that Judge Ketanji Brown Jackson will vacate); Rachel Bloomekatz to the Sixth Circuit; and Doris Pryor to the Seventh Circuit. These picks continue President Biden’s remarkable success of meeting his (highly dubious) standard of demographic diversity: All three are women, meaning that 20 of Biden’s 27 appellate picks are female. Pan is Biden’s fifth appellate pick of Asian ancestry, and Pryor is his tenth black appellate nominee (and ninth black woman).

MALDEF is upset that Latinos aren’t faring nearly as well as blacks and Asian Americans in the competition for judicial nominations. In its statement, MALDEF complained that “the Biden Administration chose yet again to send a harsh message of exclusion to the Latino community.” MALDEF continued with this amazing passage:

The timing of today’s announcement is also disturbing.  Yesterday, 19 children were murdered at a Texas elementary school with an overwhelmingly Latino student body.  Yet, President Biden chose today to teach Latino schoolchildren nationwide that they should stem their future ambitions because he at least does not believe that they warrant inclusion on the nation’s most important federal courts.  Inexplicable timing, but President Biden apparently simply does not care.

Indeed, five times in its statement MALDEF charged that Biden “apparently simply does not care” about remedying what it contends is the “historic underrepresentation” of Latinos in the federal judiciary. And MALDEF closes with this stark warning to Biden:

[I]f you explicitly and consistently demonstrate that you do not care about Latinos, you should not expect them to care about you when it comes time to vote.

Bureaucratic bean counting amply supports MALDEF’s complaint about mistreatment relative to other minorities. Latinos account for slightly more lawyers than African Americans do (see point 3 here), and they make up a much larger share of the American population. But whereas Biden has nominated ten African Americans, he has, by my count, nominated only four Latinos. (First Circuit nominee Lara Montecalvo’s maiden surname was Ewens, and, from what I can tell, does not identify as a Latina.) And one of those four, Gustavo Gelpí, was to the Puerto Rico seat on the First Circuit, where it would have been difficult not to nominate a Latino.

In further support of MALDEF, it’s also striking that Pan would become the third Asian American on the 11-member D.C. Circuit, which also has three African Americans (and will continue to do so after Judge Jackson takes her seat on the Supreme Court and Judge Michelle Childs fills another vacancy). By contrast, as MALDEF points out, the D.C. Circuit has never had a Latino judge.

But one big reason that the D.C. Circuit has never had a Latino judge is that MALDEF itself led the way in opposing President George W. Bush’s nomination of the superbly qualified Miguel Estrada to that court two decades ago. More broadly, I find it difficult to appreciate MALDEF’s complaint that Latinos are “the only racial minority group” that has “not received nominations in proportions that are multiples of population parity.”

MALDEF acknowledges that “Latinos have received about 20 percent of the Biden nominations[, …] equivalent to the Latino proportion of the nation’s total population.” If you’re going to play the diversity game, I don’t understand why proportion of the nation’s lawyers isn’t a much more sensible benchmark. By that standard, Biden has over-nominated Latinos by a factor of four. If MALDEF is instead going to insist on “nominations in proportions that are multiples of population parity,” does that mean that it thinks that Latinos should receive 40% or 60% of all judicial nominations?

I would also be curious what MALDEF’s claim of “historic underrepresentation” of Latinos in the federal judiciary means. Latinos did not account for even one percent of the United States population until around a century ago and were under ten percent as recently as 1990. Being Latino has been a big plus in the judicial-selection process for decades. That’s been true for presidents of both parties: Republican presidents have appointed 62 Latino judges (recall that George H.W. Bush appointed Sonia Sotomayor to the federal bench when she was only 38), versus 79 for Democratic presidents. Latino judges make up more than nine percent of active federal judges—nearly double the percentage of lawyers who are Latino.

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Re: Kagan and Breyer Hail Common-Law Jurist Matthew Hale

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In a post two days ago, I discussed the inane attack on Justice Alito for including the 17th-century English jurist Matthew Hale among the authorities he cites for the common-law treatment of abortion. In the course of noting that Justice Kagan and Justice Breyer had also cited Hale as an authority on the common law, I observed that Kagan “respectfully refers to ‘Lord Matthew Hale,’” whereas “Alito uses the lesser honorific ‘Sir.’”

An erudite reader informs me that Kagan’s more respectful title for Hale is also wrong:

Matthew Hale never was “Lord Matthew Hale” and to call him that is as wrong as calling a President a “Prime Minister” or a knight a “king.” Justice Kagan ought not to have referred to him as such.  “Lord Firstname Lastname” is a title of honor, and only a (younger) son of a duke or of a marquess is “Lord Firstname Lastname.”

He personally did not wish to have a title of honor and attempted to resist the knighthood (a title of honor) that traditionally accompanied being named Chief Baron of the Exchequer (that is, the head of the Court of Exchequer—a title of office) in 1660.  Famously, Lord Clarendon and King Charles II had to resort to a ruse in order to get Hale into the physical presence of the King, who knighted him on the spot. From that moment, he became “Sir Matthew Hale.” When he became Lord Chief Justice of England in 1671 (a title of office), he remained “Sir Matthew Hale,” although—only while actually encumbering that position—he might (informally) have been referred to as “Lord Justice Hale” or (even more informally) as “Lord Hale.” But those were titles of office, not titles of honor and thus the “Lord” bit would have vanished when he left office. In no event would his Christian name have followed the word “Lord.” Thus, Winston Churchill twice was First Lord of the Admiralty, but no one would ever have referred to him as “Lord Winston Churchill” on that account, as he was a grandson of a duke, not a (younger) son of a duke.

Law & the Courts

This Day in Liberal Judicial Activism—May 26

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1994—Exasperated by President Clinton’s nomination of Stephen Breyer to fill Justice Harry Blackmun’s seat on the Supreme Court, Ninth Circuit judge Stephen Reinhardt publishes a “personal appeal” to Breyer in the Los Angeles Times. Reinhardt urges Breyer to “re-examine your judicial philosophy” and instead to “carry on the work of the court’s great progressive thinkers.” You can remain the “cold, purely intellectual and wholly technical” jurist that you have been, Reinhardt tells Breyer, “or you can become what the President said he was looking for—a justice who is compassionate, who has a big heart.” 

2009—Implementing his threat to select a justice who will make decisions based on empathy, President Obama nominates Second Circuit judge Sonia Sotomayor to fill the seat of retiring justice David Souter. During the confirmation process, the “wise Latina” (at least in her own self-conception) will demoralize and disgust her supporters on the Left, as she implausibly masquerades as a caricature of a judicial conservative and even emphatically repudiates Obama’s empathy standard. 

2021—In an adventuresome frolic (in Arevalo-Quintero v. Garland), a Fourth Circuit panel takes a simple statutory provision—namely, an immigration judge “shall administer oaths, receive evidence, and interrogate, examine, and cross-examine the alien and any witnesses”—and extrapolates from it an elaborate duty on the part of an immigration judge to “fully develop the record” in all sorts of ways. Among other things, the panel rules that an immigration judge must “probe into, inquire of, and elicit all facts relevant to a respondent’s claims” and “must be especially diligent in ensuring that favorable as well as unfavorable facts and circumstances are elicited.”  

Law & the Courts

Re: Michigan Abortion Shenanigans

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Last week I reported on the extraordinary shenanigans by which Michigan judge Elizabeth Gleicher enjoined state officials from enforcing a state abortion law if and when Roe is overturned. In response to that ruling, two county prosecutors, along with Right to Life of Michigan and the Michigan Catholic Conference, filed a complaint asking the court of appeals to take superintending control of the case as well as a motion seeking immediate consideration of their complaint.

I’m pleased to pass along that the state court of appeals today granted the complainants’ motion for immediate consideration and ordered Judge Gleicher to file her answer to the complaint by June 13. Here is an excerpt from their motion (italics in original; underlining added; citations simplified):

  1. … [T]he Court of Claims [i.e., Judge Gleicher] in its May 17, 2022 Opinion and Order in Planned Parenthood of Mich v Attorney General exceeded its jurisdiction, acted in a manner inconsistent with its jurisdiction, and failed to proceed according to law in declining to dismiss Planned Parenthood’s action and entering injunctive relief, as well as in not recusing itself. Given that the only party to the action who can appeal has vowed not to do so, the lower court’s actions also leave Plaintiffs without an adequate legal remedy.
  2. The lower court’s ruling has enjoined enforcement of a decades-old, valid Michigan statute – by county prosecutors who are not even parties to the action – in a suit between non-adverse parties who agree on that improper remedy, issued by a judge with longstanding and/or continuing financial and other ties to one of them, and contrary to binding, published authority of this Court that the judge litigated and lost as a practicing attorney….
  3. Protection of this Court’s precedential decisions also counsels strongly in favor of immediate consideration…. In Mahaffey v Attorney General (1997), this Court stated unambiguously that “the Michigan Constitution does not guarantee a right to abortion that is separate and distinct from the federal right.” In holding the opposite in this case, the Court of Claims distinguished Mahaffey as involving the right to privacy, due process, free speech and vagueness, and not the “right to bodily integrity” that according to the Court of Claims was not even recognized under the Michigan Constitution until Mays v Snyder (2018). The Court of Claims went on to define the parameters of that due-process right primarily as “the right to be let alone” articulated by Justice Cooley in Cooley, Torts, 29. Id, pp 17-18. Drawing from a hodgepodge of foreign and federal cases from the last century – some of them overruled, or dissenting statements – the Court of Claims defined its newly found right as someone’s “right to determine what shall be done with his own body,” or “[t]he right of a person to control his own body,” or “that each man is considered to be master of his own body….”
  4. But far from constituting a field left unplowed by this Court in Mahaffey, the Court of Claims’ amorphous right was squarely put in issue by the 1994 complaint in that case – which the Court of Claims judge filed as co-counsel for plaintiffs. Though it was not labeled a “right to bodily integrity,” the term that gained recognition with Mays in 2018, the gravamen of that claim was the same….

(For you procedural mavens, a complaint for an order of superintending control under Michigan law is, as I understand it, akin to an action for mandamus.)

Law & the Courts

This Day in Liberal Judicial Activism—May 25

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2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Roger Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”

In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”

(In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”)

Law & the Courts

Kagan and Breyer Hail Common-Law Jurist Matthew Hale

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The competition is intense, to be sure, but high on the list of the most stupid attacks on Justice Alito’s leaked draft majority opinion in Dobbs is the objection that Alito includes the 17th-century English jurist Matthew Hale among the authorities he cites in discussing the common-law treatment of abortion. Hale, as one typical critic complains, “was considered misogynistic even by his era’s notably low standards.”

One simple answer to this criticism is that Hale’s account of the common-law treatment of abortion stands or falls independent of his own virtues or vices. The Alito draft cites Blackstone, Coke, and Bracton, along with Hale, to establish that abortion after quickening was criminal at common law, and it cites Blackstone, along with Hale, to establish that the common law “did not condone even pre-quickening abortions.” One could try to argue that these authorities were wrong about the common-law treatment of abortion, or one could try to argue that Alito’s draft makes improper use of the common-law treatment of abortion, but it’s a gross ad hominem to fault Alito for citing Hale.

For what it’s worth, just two years ago in Kahler v. Kansas, both Justice Kagan in her majority opinion and Justice Breyer in his dissent cited Hale with approval. The legal question in that case was whether the Due Process Clause of the Fourteenth Amendment requires the states to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.

As Kagan explains, a state rule about criminal liability “violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Cleaned up.) The Court’s “primary guide in applying that standard is ‘historical practice,’” and “in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions.” That is the very passage that the Alito draft quotes as it undertakes the similar project of determining whether a right to abortion is “deeply rooted in this Nation’s history and tradition” (under the “established method of substantive-due-process analysis” that the Court summarized in Washington v. Glucksberg (1997)).

Elsewhere in her opinion, Kagan respectfully refers to “Lord Matthew Hale.” Alito uses the lesser honorific “Sir.”

In his dissent in Kahler, Breyer similarly invokes the “four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, [who] each linked criminality to the presence of reason, free will, and moral understanding.”

Law & the Courts

This Day in Liberal Judicial Activism—May 24

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 2016—Federal district judge Michael H. Watson rules (in Ohio Organizing Collaborative v. Husted) that an Ohio law that altered the period for early in-person voting from 35 days before Election Day to 29 days before Election Day violates the Equal Protection Clause and the Voting Rights Act.

Three months later, a divided panel of the Sixth Circuit (with Obama appointee Jane Branstetter Stranch in dissent) will reverse Watson’s ruling. In his majority opinion, Judge David McKeague explains that the Ohio law “applies even-handedly to all voters” and “continues to provide generous, reasonable, and accessible voting options to Ohioans.” Indeed, Ohio “is a national leader when it comes to early voting opportunities,” and “a third of the states offer no early voting.” McKeague labels “astonishing” the proposition that Ohio’s previous law “established a federal floor that Ohio may add to but never subtract from.” Such a proposition “would discourage states from ever increasing early voting opportunities, lest they be prohibited from later modifying their election procedures in response to changing circumstances.”

2020—In Jones v. DeSantis, federal district judge Robert L. Hinkle enjoins Florida officials from enforcing provisions of state law that condition restoration of a felon’s voting rights on completion of the financial terms of his criminal sentence. Specifically, Hinkle’s injunction would allow any felon who is unable to pay his fines or restitution or who has failed for any reason to pay his court fees and costs to register and vote.

Several months later, the en banc Eleventh Circuit, by a vote of 6 to 4, will vacate Hinkle’s injunction.

Law & the Courts

This Day in Liberal Judicial Activism—May 23

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1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

2016—In Planned Parenthood of Greater Ohio v. Hodges, federal district judge Michael R. Barrett (a Bush 43 appointee) grants Planned Parenthood affiliates in Ohio a temporary restraining order against an Ohio law that directs the state department of health to “ensure” that funds it receives through six programs not be used to perform or promote nontherapeutic abortions or to contract with any entity that performs or promotes such abortions. Overlooking that the state law provides two separate and independent bases for the state department of health not to fund the Planned Parenthood affiliates, Barrett fails to respect longstanding Supreme Court precedents holding that there is no constitutional right to government funding of the performance of abortions.

In 2019, the en banc Sixth Circuit will rule that the Ohio law is constitutionally permissible.

Law & the Courts

This Day in Liberal Judicial Activism—May 22

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1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994. 

2015First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”  

Law & the Courts

This Day in Liberal Judicial Activism—May 20

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1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does. 

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.) 

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.” 

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.  

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer 

2008—A divided Fourth Circuit panel rules (in Richmond Medical Center for Women v. Herring) that a Virginia statute that outlaws partial-birth abortion “imposes an undue burden on a woman’s right to obtain an abortion” and therefore violates the federal Constitution (as misinterpreted by the Supreme Court). In the aftermath of the Court’s ruling in Gonzales v. Carhart (2007) rejecting a facial challenge to the federal ban on partial-birth abortion, the majority opinion by Judge Blane Michael, joined by fellow Clinton appointee Diana Gribbon Motz, purports to distinguish the statute’s intent element from the intent element in the federal ban. Judge Paul Niemeyer dissents. 

The Fourth Circuit will grant en banc review in the case and in October 2008, in a majority opinion by Niemeyer, will reject the facial challenge to the Virginia statute by a vote of 6 to 5.  

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.” 

Law & the Courts

This Day in Liberal Judicial Activism—May 19

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2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other … and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunk rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex. 

2020—In what the Fifth Circuit, in its reversal two weeks later, will say is “an order that will be remembered more for audacity than legal reasoning,” federal district judge Fred Biery (in Texas Democratic Party v. Abbott) orders Texas to allow all voters to apply to vote by mail in the July 2020 primary runoff elections. In the midst of the coronavirus pandemic, Biery opines, Texas law allowing voting by mail by voters age 65 and older (as well as by those unable to vote in person because they are away from home or disabled) unconstitutionally burdens the rights of voters under the age of 65. 

Law & the Courts

Michigan Abortion Shenanigans

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Michigan is one of several states that has on its statutory books a pre-Roe ban on abortion. Under ordinary principles of law, that ban would spring back into enforceability if Roe is overturned. So it wouldn’t have been a surprise if Michigan governor Gretchen Whitmer, an ardent supporter of legalized abortion, had urged the Michigan legislature to repeal or revise the pre-Roe ban.

But the actual path by which that ban has now been enjoined is far more sinuous and disturbing. In brief:

1. In April, Planned Parenthood of Michigan (PPM) filed a lawsuit against Michigan attorney general Dana Nessel seeking to enjoin her from enforcing the abortion law. Nessel, like Whitmer, is a vocal supporter of legalized abortion and had already vowed not to enforce the law. As PPM surely anticipated, Nessel immediately announced that she agreed with PPM that the law violates the Michigan constitution and that she would not defend it (and would not allow anyone in her office to do so).

2. PPM’s lawsuit was randomly assigned to chief judge Elizabeth L. Gleicher of the state court of claims. Gleicher notified the parties (via a letter from the court clerk) that “she makes yearly contributions to Planned Parenthood of Michigan” and “represented Planned Parenthood as a volunteer attorney for the ACLU in 1996-1997, in Mahaffey v. Attorney General.” She concluded, however, that she “does not believe this warrants her recusal, and is certain that she can sit on the case with requisite impartiality and objectivity.” Ah, yes, of course.

3. It turns out that Gleicher’s connections with PPM and the cause of abortion are even much stronger than she disclosed. As amici Right to Life of Michigan and the Michigan Catholic Conference documented, her own bio states that she “received the Planned Parenthood Advocate Award” in 1998. In addition to representing PPM in unsuccessfully challenging an informed-consent law in Mahaffey, Gleicher also “represented Planned Parenthood in challenging a Michigan pro-life law requiring minors to obtain the consent of their parents before obtaining an abortion.” In addition, she “served as a lawyer for the ACLU in challenging a Michigan pro-life law that prohibited the use of public funds to pay for abortion,” and she “served as a lawyer for the ACLU and represented a halfway-house resident against federal officials who tried to prevent the resident from taking her baby’s life after the first trimester had expired.”

4. Needless to say, neither PPM nor Nessel moved to disqualify Gleicher. Nor could anyone else, as no one could take part as an intervenor in the case.

5. In her ruling yesterday, Gleicher acknowledged that Mahaffey is binding precedent on the proposition that the Michigan constitution’s “generalized right of privacy … does not embrace a right to abortion.” But she evaded that precedent by contending that a supposedly distinct “right to bodily integrity” wasn’t at issue in Mahaffey, and she of course found that the Michigan law violates that right.

6. Both Whitmer and Nessel immediately celebrated the state’s loss in court, and Nessel declared that she “has no plans to appeal.”

Let’s see if Planned Parenthood of Michigan gives Gleicher another Planned Parenthood Advocate Award.

Law & the Courts

This Day in Liberal Judicial Activism—May 18

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1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.” 

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place. 

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.” 

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding. 

Reinhardt will remain in active status on the Ninth Circuit until his death in March 2018. 

2017—The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder. 

The crystalline clarity of this provision somehow doesn’t stop federal district judge Joseph H. Leeson, Jr. In Blatt v. Cabela’s Retail, Inc., Leeson denies an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition. 

Among Leeson’s somersaults of reasoning: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.” 

What?!? We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders 

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability? 

Law & the Courts

This Day in Liberal Judicial Activism—May 17

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1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.” 

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993. 

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date. 

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparate impact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination. 

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition. 

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple: 

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.” 

Law & the Courts

This Day in Liberal Judicial Activism—May 16

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2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling: 

“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.” 

Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling. 

Law & the Courts

My ‘Firing Line’ Episode on Dobbs

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I was grateful to take part in a PBS Firing Line episode on Dobbs that aired over the weekend. I joined Margaret Hoover, the host of the series, and law professor Mary Ziegler.

Here are the video and transcript of the episode.

Law & the Courts

This Day in Liberal Judicial Activism—May 15

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2008The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them. 

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism). 

Law & the Courts

Yale Law Professor Akhil Amar Refutes Critics of Dobbs Draft

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In an excellent front-page essay in the Wall Street Journal’s weekend Review section, Yale law professor Akhil Amar, who (at the risk of understatement) is widely recognized as among the top handful of constitutional scholars, provides a robust defense of Justice Alito’s leaked draft opinion in Dobbs. Amar, it’s worth noting, is a staunch liberal and explicitly identifies himself as “a Democrat who supports abortion rights but opposes Roe.”

Roe v. Wade is “ripe for reversal,” Amar explains, as it “lacks solid grounding in the Constitution itself, as Justice Alito demonstrates at length.” The “dire assessments” by many critics that the draft “would threaten a wide range” of other precedents “don’t stand up to scrutiny.” The “draft’s logic” distinguishes those other precedents in various ways and thus “reinforces” and “buttresses” them. Roe is also “decisively different … because, as Justice Alito’s draft opinion stresses, abortion uniquely involves destroying unborn human life.”

More broadly, there isn’t “anything unusual in the leaked draft’s treatment of precedent,” and “there is nothing radical, illegitimate, or improperly political in what Justice Alito has written.”