Law & the Courts

May Her Memory Be a Blessing

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May the memory of Ruth Bader Ginsburg be a blessing to all those who knew and loved her, and may God console them in their grief.

Law & the Courts

This Day in Liberal Judicial Activism—September 20

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(Wikimedia Commons)

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

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

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

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

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

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

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

Law & the Courts

Honoring Justice Ginsburg’s Legacy

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Supreme Court Justice Ruth Bader Ginsburg sits at the Supreme Court in Washington, D.C., June 1, 2017. (Jonathan Ernst/Reuters)

Yesterday we lost a true trailblazer. Justice Ruth Bader Ginsburg was both a respected academic and an accomplished advocate who reached the very highest levels of the legal profession. After serving for 13 years on the U.S. Court of Appeals for the D.C. Circuit, Ginsburg went on to serve on the Supreme Court for 27 years. Ginsburg was only the second female, and the first Jewish female, to serve on the Supreme Court.

When she was tapped for the Supreme Court by President Clinton in 1993, Ginsburg enjoyed a confirmation process that was smooth sailing—in part because her outstanding qualifications were simply undeniable. The fact that Ginsburg had taken controversial positions while she was with the ACLU was not material to the confirmation process. In fact, Senator Orrin Hatch recommended Ginsburg to President Clinton for the vacancy due to her qualifications, putting aside his ideological disagreements with her. During her nomination hearing before the Judiciary Committee, no senators tried to use her past with the ACLU against her. It’s hard to imagine today, but Ginsburg was confirmed nearly unanimously by the Senate (96-3), and with the support of Republican Senators Mitch McConnell and Chuck Grassley.

In her final years, Ginsburg frequently lamented the way in which the Supreme Court confirmation process had deteriorated since her own confirmation. Ginsburg compared her own confirmation process to that of now-Justice Brett Kavanaugh at an address at George Washington University Law School on September 12, 2018:

The way it was, was right. The way it is, is wrong. The atmosphere in ‘93 was truly bipartisan. The vote on my confirmation was 96 to 3—even though I had spent about 10 years of my life litigating cases under the auspices of the ACLU and I was on the ACLU board and one of their general counsels. . . . I wish I could wave a magic wand and have it go back to the way it was.

She said that days before the already hyperpoliticized attacks on Kavanaugh reached a new low in ugliness for the SCOTUS nomination process.

Ginsburg owed her own bipartisan confirmation to the notion that a nominee’s ideological views should not eclipse her qualifications in the nomination process. At a talk at Duke University in 2019, Ginsburg said that rather than “trying to figure out how the nominee will vote on the Court,” the right question for the Senate Judiciary Committee is instead, “Does this person have the qualities it takes to be a good judge?” In that same speech, Ginsburg expressed optimism that one day “there will be patriots on both sides of the aisle who say, ‘Enough of this dysfunctional government. We will get together and try to do the business that a national legislature should do.’”

Perhaps this is the best way we can honor Justice Ginsburg and her legacy—by returning to the way Supreme Court confirmations used to be. To reject the politicization of the courts by the Left that has turned the confirmation process into a complete circus. To return to evaluating Supreme Court nominees based on their qualifications and credentials, rather than political litmus tests.

When President Trump makes his nomination, let us hope the people demand a process that is closer to Ginsburg’s vision than to that of recent Democratic Party leadership. When it’s time for the Senate to consider whomever the president chooses, I hope it will renounce the sordid tactics of character assassination and return to the model of civilized inquiry that examines a nominee’s qualifications.

Law & the Courts

This Day in Liberal Judicial Activism—September 19

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(Michał Chodyra/Getty Images)

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

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

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

Law & the Courts

Judge William Pryor on The Essential Scalia

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Eleventh Circuit chief judge William Pryor has an excellent review of The Essential Scalia in the new issue of National Review—and available online to NR-Plus members here. An excerpt:

As with the earlier collections [Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and On Faith: Lessons from an American Believer], what makes this book so valuable and entertaining is the writer’s skill. Scalia’s rhetoric was so powerful because it was accessible and jargon-free. Consider an example from his dissenting opinion in a case about the arcane field of campaign-finance regulation, McConnell v. Federal Election Commission, in which he described the controversy this way: “Who could have imagined that the same Court which, within the past four years, has sternly disapproved of restrictions upon such inconsequential forms of expression as virtual child pornography, tobacco advertising, dissemination of illegally intercepted communications, and sexually explicit cable programming would smile with favor upon a law that cuts to the heart of what the First Amendment is meant to protect: the right to criticize the government.” Or consider his classic dissent from the decision in Morrison v. Olson, upholding the now-discarded law creating an independent counsel: “This wolf comes as a wolf,” he warned.

Law & the Courts

The Essential Scalia ‘Won’t Be Bested’

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I’m very pleased to highlight Bryan Garner’s generous praise for The Essential Scalia: On the Constitution, the Courts, and the Rule of Law:

Having worked closely with Justice Scalia for a decade, I can confidently say that the newly released book The Essential Scalia, edited by Judge Jeffrey Sutton and Ed Whelan, is the best one-volume compendium of the Justice’s erudition and wit. It won’t be bested.

Among other things, Scalia and Garner were co-authors of the magisterial Reading Law: The Interpretation of Legal Texts and Making Your Case: The Art of Persuading Judges, so Garner’s commendation is especially meaningful to me.

I will extend through this weekend my offer to provide a signed and inscribed bookplate for The Essential Scalia to anyone who buys the book. If you would like a bookplate, please send an email to EssentialScalia@EPPC.org with (1) proof of purchase, (2) your mailing address, and (3) the name of the person(s) to whom the book should be inscribed. (If you buy multiple copies, I will happily provide a bookplate for each.)

Law & the Courts

This Day in Liberal Judicial Activism—September 18

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The logo of the U.S. Central Intelligence Agency in the lobby of the CIA headquarters in Langley, Virginia March 3, 2005. (Jason Reed/Reuters)

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

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

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

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

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

Law & the Courts

‘What Is Golf’?

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In his characteristically thoughtful review of The Essential Scalia, John McGinnis observes that “so many pages crackle with jokes and humorous sallies that it is difficult to single out any of them.” But for “providing sustained jollity that will stay with you throughout the day,” he particularly recommends Justice Scalia’s “marvelous” dissent in PGA Tour v. Martin.

The legal question in the case was whether the Americans with Disabilities Act required the PGA Tour to accommodate professional golfer Casey Martin’s disability by permitting him to use a cart during tournaments. A seven-justice majority held that it did. Justice Scalia, joined by Justice Thomas, dissented.

Below is a five-paragraph excerpt from Scalia’s dissent. Be sure to make your way to the third paragraph. You’ll be glad you did.

Since it has held (or assumed) professional golfers to be customers “enjoying” the “privilege” that consists of PGA Tour golf; and since it inexplicably regards the rules of PGA Tour golf as merely “policies, practices, or procedures” by which access to PGA Tour golf is provided, the Court must then confront the question whether respondent’s requested modification of the supposed policy, practice, or procedure of walking would “fundamentally alter the nature” of the PGA Tour game. The Court attacks this “fundamental alteration” analysis by asking two questions: first, whether the “essence” or an “essential aspect” of the sport of golf has been altered; and second, whether the change, even if not essential to the game, would give the disabled player an advantage over others and thereby “fun­damentally alter the character of the competition.” It answers no to both.

Before considering the Court’s answer to the first question, it is worth pointing out that the assumption which underlies that question is false. Nowhere is it writ that PGA Tour golf must be classic “essential” golf. Why cannot the PGA Tour, if it wishes, promote a new game, with distinctive rules (much as the American League promotes a game of baseball in which the pitcher’s turn at the plate can be taken by a “designated hitter”)? If members of the public do not like the new rules—if they feel that these rules do not truly test the individual’s skill at “real golf” (or the team’s skill at “real baseball”)—they can withdraw their patronage. But the rules are the rules. They are (as in all games) entirely arbitrary, and there is no basis on which anyone—not even the Supreme Court of the United States—can pronounce one or another of them to be “nonessential” if the rulemaker (here the PGA Tour) deems it to be essential.

If one assumes, however, that the PGA Tour has some legal obligation to play classic, Platonic golf—and if one assumes the correct­ness of all the other wrong turns the Court has made to get to this point—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, laid upon it by Congress in pursuance of the Federal Government’s power “[t]o regulate Commerce with foreign Nations, and among the several 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. To say that something is “essential” is ordinarily to say that it is necessary to the achievement of a certain object. But since it is the very nature of a game to have no object except amuse­ment (that is what distinguishes games from productive activity), it is quite impossible to say that any of a game’s arbitrary rules is “essential.” Eighteen-hole golf courses, 10-foot-high basketball hoops, 90-foot baselines, 100-yard football fields—all are arbitrary and none is essential. The only support for any of them is tradition and (in more modern times) insistence by what has come to be regarded as the ruling body of the sport—both of which factors support the PGA Tour’s position in the present case. (Many, indeed, consider walking to be the central feature of the game of golf—hence Mark Twain’s classic criticism of the sport: “a good walk spoiled.”) I suppose there is some point at which the rules of a well-known game are changed to such a degree that no reasonable person would call it the same game. If the PGA Tour competitors were required to dribble a large, in­flated ball and put it through a round hoop, the game could no longer reasonably be called golf. But this criterion—destroying recognizability as the same generic game—is surely not the test of “essentialness” or “fundamentalness” that the Court applies, since it apparently thinks that merely changing the diameter of the cup might “fundamentally alter” the game of golf.

Having concluded that dispensing with the walking rule would not violate federal-Platonic “golf,” the Court moves on to the second part of its test: the competitive effects of waiving this nonessential rule. In this part of its analysis, the Court first finds that the effects of the change are “mitigated” by the fact that in the game of golf weather, a “lucky bounce,” and “pure chance” provide different conditions for each competitor and individual ability may not “be the sole determinant of the outcome.” I guess that is why those who follow professional golfing consider Jack Nicklaus the luckiest golfer of all time, only to be challenged of late by the phenomenal luck of Tiger Woods. The Court’s empiricism is unpersuasive. “Pure chance” is randomly distributed among the players, but allowing respondent to use a cart gives him a “lucky” break every time he plays. Pure chance also only matters at the margin—a stroke here or there; the cart substantially improves this respondent’s competitive prospects beyond a couple of strokes. But even granting that there are significant nonhuman variables affecting competition, that fact does not justify adding another variable that always favors one player.

Law & the Courts

Judicial Winning: Paul Matey

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(Alexei Novikov/Dreamstime)

Paul Matey has worn several hats over the course of a distinguished legal career. After clerking for two federal judges, he worked at Kellogg Hansen, an elite law firm whose impressive alumni include Justice Gorsuch and Judges Andy Oldham and Julius Richardson. Matey then served as an assistant United States attorney in New Jersey before working as senior counsel to Governor Chris Christie. He has also served as senior vice president and general counsel of University Hospital in Newark. Last year, Matey donned yet another hat when President Trump nominated him to serve on the U.S. Court of Appeals for the Third Circuit.

Since becoming a judge, Matey has shown a steadfast commitment to interpreting the Constitution according to its text, history, and original meaning. In Association of New Jersey Rifle and Pistol Clubs v. Attorney General New Jersey, just decided on September 1, a three-judge panel concluded that a New Jersey law banning magazines capable of holding more than ten rounds of ammunition did not violate the Second Amendment. The majority declined to do any constitutional analysis of the ban, and instead claimed that the question had already been resolved in a prior Third Circuit case.

Judge Matey dissented. He began by noting that the prior decision left important questions unanswered and that when undecided constitutional issues are squarely presented to a federal court, the court has an obligation to answer them. Judge Matey then conducted a thoughtful and thorough analysis of the Second Amendment.

He asserted that the Second Amendment has always been understood to protect the right to bear firearms for the lawful purpose of self-defense. Inherent in that right, of course, is the right to bear operable arms. That is, the Second Amendment protects those components “required to make a protected firearm work for self-defense.” As Judge Matey explained, a magazine is “a device that holds cartridges or ammunition,” and ammunition is clearly required to make a firearm work. Magazines therefore fall within the protection of the Second Amendment.

Judge Matey then considered the history of gun use in America. He concluded that magazines holding more than ten rounds are and have been quite common for well over a hundred years.  Based on the historical absence of regulations limiting such magazines and the Supreme Court’s decision in District of Columbia v. Heller, Judge Matey concluded that New Jersey’s law unconstitutionally burdened the rights of gun owners. Indeed, New Jersey offered no concrete evidence that the magazine ban would improve public safety and save potential victims. The Second Amendment, Judge Matey wrote, “demands more than back-of-the-envelope math.”

Judge Matey’s commitment to defending the freedoms guaranteed by the Second Amendment is a welcome reminder of how the judiciary can, when it faithfully interprets the Constitution, protect individuals from excessive governmental regulation. And it is a timely example of what is at stake in this November’s presidential election: two drastically different visions of the proper role of judges in our society.

Want to learn more about judicial winning? Click here.

Law & the Courts

Happy Constitution Day!

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This 233rd anniversary of the Constitutional Convention’s unanimous promulgation of the Constitution is also the 34th anniversary of the Senate’s unanimous confirmation of Antonin Scalia’s nomination to the Supreme Court. I’m pleased to highlight three new pieces out today on The Essential Scalia: On the Constitution, the Courts, and the Rule of Law, the just-released collection of Justice Scalia’s legal work that I had the privilege of co-editing with Sixth Circuit judge Jeffrey Sutton (and that I introduced in this post on Tuesday).

In his excellent review at Law & Liberty, law professor John McGinnis writes that The Essential Scalia is “essential for anyone who studies law.” Plus, “[b]eyond its theoretical interest, The Essential Scalia is great fun because Scalia was undoubtedly the wittiest Supreme Court justice in history.”

Mark Pulliam also has an outstanding review at Law & Liberty:

The curated excerpts from opinions, articles, and speeches read like essays, allowing Scalia’s distinctive voice to ring clearly without distraction. They are a joy to read. In this, the third sampler drawn from Scalia’s vast corpus, Sutton and Whelan have succeeded in producing a comprehensive summary of Scalia’s inimitable writing style and forcefully-expressed judicial philosophy.

And Judge Sutton draws on his great introduction for the book to provide an insightful overview in this piece for Fox News. Here’s a passage that would have Justice Scalia chuckling:

How inspiring in these polarized times that many Americans, and nearly all American judges, know that Justice Scalia attended one opera after another with Justice Ruth Bader Ginsburg and taught Justice Kagan how to hunt.

Who can say what showed more collegiality: enduring 35 years of long, difficult-to-follow operas, or teaching a potential adversary how to use a gun?

I will provide a signed and inscribed bookplate for The Essential Scalia to anyone who buys the book by the end of today. If you would like a bookplate, please send an email to EssentialScalia@EPPC.org with (1) proof of purchase, (2) your mailing address, and (3) the name of the person(s) to whom the book should be inscribed. (If you buy multiple copies, I will happily provide a bookplate for each.)

Law & the Courts

This Day in Liberal Judicial Activism—September 17

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(mj0007/Getty Images)

A mixed day for the Constitution:

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

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

Law & the Courts

Introducing The Essential Scalia

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Today is the publication date of The Essential Scalia: On the Constitution, the Courts, and the Rule of Law, co-edited by Sixth Circuit judge Jeffrey S. Sutton and me.

I’m pleased to see that the volume has already been hailed by an early reviewer, Harvard law professor Jack Goldsmith, as “an extraordinary collection of Justice Scalia’s legal writings—the best introduction to his legal thought.” Addendum [11:30 a.m.]: Yuval Levin praises the book as “fantastic,” “as an education in Americanism, and in the distinct and central place that the law and the Constitution have in the life of our republic”: “Watching [Scalia’s] mind at work is a joy.”

In a generous act of friendship for Justice and Mrs. Scalia, Justice Elena Kagan has contributed a beautiful foreword. Here’s an excerpt:

In the six years Nino and I served together on the Supreme Court, I held to an unwavering rule. When Nino circulated a new opin­ion, I would put aside whatever else I was doing to read it. Whether I expected to agree or to disagree, I wanted to know immediately—not in a day or in an hour but right now—what Nino had to say. I wanted to dive into his inimitable writing style. To marvel at the power of his mind. And most important, to take the measure of his ideas.

I envy the reader who has picked up this book, as I once picked up those opinions, not knowing what he or she will find…. [I]n these last few years, I have missed the enjoyment and excitement—even the exasperation—that came from thinking about Nino’s latest opinion. I doubt that anyone who turns the final page of this book will wonder why.

For years, I likewise would scan Supreme Court rulings as they were issued in order to see whether Justice Scalia had written an opinion in any of them, and I would race to read what he had written. I suspect that many of you reading this did the same.

The Essential Scalia will provide readers that same joy of discovery—or re-discovery. Over the course of his career, Justice Scalia had something interesting and important to say on the entire range of significant legal issues. Whether you bounce around the book or read it from beginning to end, you will run across one gem after another. I’ll offer just a few samples.

Here’s the powerful opening of his dissent from a 1990 ruling (Rutan v. Republican Party of Illinois) in which the majority held that the First Amendment bars a government entity from basing hiring and promotion decisions for low-level employees on party affiliation:

Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an “appropriate requirement.” It is hard to say pre­cisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where parti­sanship is not only unneeded but positively undesirable. It is, how­ever, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelm­ingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court.

Here’s a passage in the midst of another First Amendment dissent:

If forbidding peaceful, nonthreatening, but uninvited speech from a distance closer than eight feet is a “narrowly tailored” means of pre­venting the obstruction of entrance to medical facilities (the govern­mental interest the State asserts), narrow tailoring must refer not to the standards of Versace, but to those of Omar the tentmaker.

From his time as a law professor, here’s his Swiftian “modest proposal” for a “Restorative Justice Handicapping System”:

Under my system each individual in society would be assigned at birth Restorative Justice Handicapping Points, determined on the basis of his or her ancestry. Obviously, the highest number of points must go to what we may loosely call the Aryans—the Powells, the Whites, the Stewarts, the Burgers, and, in fact (curiously enough), the entire composition of the present Supreme Court, with the ex­ception of Justice Marshall. This grouping of North European races obviously played the greatest role in the suppression of the American black. But unfortunately, what was good enough for Nazi Germany is not good enough for our purposes. We must further divide the Aryans into sub-groups. As I have suggested, the Irish (having ar­rived later) probably owe less of a racial debt than the Germans, who in turn surely owe less of a racial debt than the English. It will, to be sure, be difficult drawing precise lines and establishing the correct number of handicapping points, but having reviewed the Supreme Court’s jurisprudence on abortion, I am convinced that our justices would not shrink from the task.

The Essential Scalia is the third volume of Justice Scalia’s work that I have had the privilege of co-editing. The first two were the New York Times bestselling Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (Crown Forum, 2017) and On Faith: Lessons from an American Believer (Crown Forum, 2019).

As you’d gather from the topic, The Essential Scalia will be of special interest to a legal audience. But you don’t have to be a judge, lawyer, or law student to appreciate it. Judge Sutton and I have edited it with the express intention of making it accessible to the attentive reader.

This Thursday is Constitution Day and is also, fittingly, the anniversary of the Senate’s unanimous confirmation of Justice Scalia to the Supreme Court in 1986. In honor of that anniversary, I will provide a signed and inscribed bookplate for The Essential Scalia to anyone who buys the book by the end of the day on September 17. If you would like a bookplate, please send an email to EssentialScalia@EPPC.org with (1) proof of purchase, (2) your mailing address, and (3) the name of the person(s) to whom the book should be inscribed. (If you buy multiple copies, I will happily provide a bookplate for each.)

Law & the Courts

This Day in Liberal Judicial Activism—September 15

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(Bill Chizek/Getty Images)

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

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

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

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

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

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

Law & the Courts

Left-Wing Pressure a Window into How Democrats Would Run a Future Judiciary Committee

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Senator Dianne Feinstein on Capitol Hill, Washington, D.C., May 8, 2017. (Aaron P. Bernstein/Reuters )

The Los Angeles Times reports that left-wing activists are badgering Senator Dianne Feinstein to abandon blue slips if Joe Biden wins the White House and the Democrats capture the Senate. In that scenario, Feinstein, currently the Senate Judiciary Committee’s ranking member, would be slated to become chairman.

Feinstein and other committee Democrats spent much of the Trump years protesting that no judicial nomination, whether for circuit court or district court, should be allowed to advance when home state senators object by refusing to return their blue slips. Now, with election day 50 days away, Brian Fallon of Demand Justice is putting the pressure on Feinstein to do a complete flip-flop of her blue slip stance if she wants to serve as chairman: The idea that Feinstein would allow Mitch McConnell, who would remain the presumptive Republican leader in the Senate, to “block a President Biden’s judicial picks is basically disqualifying,” Fallon asserted. “And if she’s not willing to fight all-out for Joe Biden’s judicial nominees, then the Democrats ought to figure out who else can run that committee.”

Fallon’s threat is a reaction to Feinstein’s refusal to say clearly whether she would change her position on blue slips if she is the one holding the gavel after the election. To be sure, she has changed her position on this very issue before. It is not difficult to envision yet another flip for the sake of political expediency. Her refusal to indicate what she would do may well reflect that her true commitment is to opportunism — in other words, determine which position to take based on who wins the presidency and the Senate in November.

In any event, Feinstein should be worried that she has become the poster child for what will happen to any Democratic senator who does not give in to the pressure of far-left activists, in this case for whomever becomes the next Democratic Judiciary Committee chairman to abandon the blue slip tradition. Prediction: If Democrats win the White House and the Senate, she will give in. Or there will be a different chairman.

Law & the Courts

My C-Span Session on Trump’s Expanded SCOTUS List

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I had the pleasure of being on C-Span’s Washington Journal show this morning to discuss President Trump’s new list of candidates for a Supreme Court vacancy. My bottom line: “It is an outstanding list on top of an original list that was outstanding. President Trump did an excellent job of highlighting the importance of the judiciary in the coming election.”

Here is the half-hour video:

Law & the Courts

Ninth Circuit Okays Termination of ‘Temporary Protected Status’ Designations

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In a divided panel ruling today in Ramos v. Wolf, the Ninth Circuit ruled in favor of the Department of Homeland Security’s termination of the Temporary Protected Status (TPS) designation of four countries: Sudan, Nicaragua, Haiti, and El Salvador. Specifically, the panel majority (Judge Consuelo Callahan, joined by Judge Ryan Nelson) vacated a preliminary injunction that a district court had entered against implementation of the termination decisions.

Congress created the TPS program in 1990. TPS provides temporary relief against deportation to aliens who cannot safely return in the short term to their home nation because of a natural disaster, armed conflict, or other “extraordinary and temporary conditions.” The TPS statute authorizes DHS to designate foreign countries for TPS. TPS designations last for an initial period of six to eighteen months.

Sudan was originally designated for TPS in 1997 because of an ongoing civil war, Nicaragua in 1999 because of a hurricane, El Salvador in 2001 because of earthquakes, and Haiti in 2010 because of an earthquake. DHS terminated the TPS designations each of the four countries on the ground that the conditions that initially justified the designations no longer existed.

It might seem surprising that there would be any controversy over DHS’s authority to terminate a temporary designation years later. But after ordering DHS to provide the administrative record for its termination decisions, federal district judge Edward Chen granted plaintiffs (TPS beneficiaries from these countries and their children) injunctive relief based on their claims under the Administrative Procedure Act and the Equal Protection Clause.

The TPS statute specifically provides: “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Although Callahan, dealing with dubious circuit precedent, concludes that DHS’s discretion to make TPS determinations “is not wholly unfettered,” she determines that the statute does bar the plaintiffs’ APA claim. (Pp. 31-45.)

On the Equal Protection claim, Callahan concludes that plaintiffs fail to present “serious questions” in support of their claim that the TPS terminations were improperly influenced by President Trump’s alleged “animus against non-white, non-European immigrants.” (Pp. 45-53.)

Judge Morgan Christen wrote a lengthy dissent. (Pp. 67-107.)

One minor note: The same Ninth Circuit clerk’s office that misspelled the name of its own chief judge last Friday managed to misspell the name of California attorney general Xavier Becerra.

Law & the Courts

Judicial Winning: Daniel Collins and Patrick Bumatay

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(mj0007/Getty Images)

Daniel Collins and Patrick Bumatay have a lot in common. Both went to exceptional schools, clerked for multiple federal judges, and have dedicated themselves to serving the public. And of course, both were nominated by President Trump to fill vacancies on the Ninth Circuit and are playing a role in remaking that court.

Since becoming judges, Collins and Bumatay have shared another thing in common: a commitment to interpreting the Constitution based on its text and original meaning rather than on partisan policy preferences. Take for example Edmo v. Corizon, Inc. In that case, a prisoner who identified as transgender demanded that the prison treat the gender dysphoria with sex-reassignment surgery. After a consultation with the prison doctor, the request was denied. ​Instead, the doctor concluded that the prisoner had coexisting mental-health issues that required counseling and treatment before surgery could be considered. A three-judge panel of the Ninth Circuit held that the doctor’s decision constituted “cruel and unusual punishment” under the Eighth Amendment. The Ninth Circuit then rejected a request to have the full court reconsider the panel’s decision.

Judge Collins and Judge Bumatay both dissented from the rejection of the rehearing request. Judge Collins noted that under binding Supreme Court precedent, for a decision to be “cruel and unusual” under the Eighth Amendment, prison officials must have acted with “deliberate indifference” to the prisoner’s “serious medical needs.” A doctor’s decision to prescribe a different treatment plan than the one a prisoner requests, Judge Collins explained, does not amount to “deliberate indifference” merely because a court disagrees with the doctor’s approach.

Judge Bumatay agreed. He explained that “our duty . . . to faithfully interpret the Constitution. . . . commands that we apply the Eighth Amendment, not our sympathies.” Reviewing the Amendment’s text and history, he found no support for the notion that declining to provide gender-reassignment surgery could be considered “inhuman,” “barbarous,” or “so out of line with longstanding practice as to be forbidden by the Eighth Amendment.” Indeed, as Judge Bumatay noted, there is still considerable disagreement within the medical community about how best to treat gender dysphoria. Particularly given this lack of consensus, a court cannot substitute its own judgment for that of the medical community by holding that any treatment other than reassignment surgery constitutes cruel and unusual punishment.

As the dissents by Judges Collins and Bumatay emphasize, it is not the role of judges to use the Constitution as a vehicle to enact their preferred health-care and prison policies into law. Rather, judges are empowered only to say what the law is, by faithfully and honestly interpreting the text and the original meaning of that law. Collins and Bumatay’s commitment to this judicial philosophy is quite a refreshing change on the Ninth Circuit.

Law & the Courts

This Day in Liberal Judicial Activism—September 13

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(Michał Chodyra/Getty Images)

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

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

Law & the Courts

This Day in Liberal Judicial Activism—September 12

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John Roberts testifies at his confirmation hearing to be Chief Justice of the Supreme Court, September 14, 2005. (Kevin Lamarque/Reuters)

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

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

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

Law & the Courts

En Banc Eleventh Circuit: Okay to Condition Restoration of Felons’ Voting Rights on Satisfaction of Criminal Sentence

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In a ruling today in Jones v. Governor of Florida, the en banc Eleventh Circuit held, by a 6-4 vote, held that Florida law that conditions the restoration of a felon’s voting rights on his paying all fines, fees, and restitution imposed as part of his sentence does not violate any of various federal constitutional provisions.

The court divided along ideological lines. Chief judge William Pryor wrote the majority opinion, which was joined in whole or in large part by Judges Kevin Newsom, Elizabeth Branch, Britt Grant, Robert Luck, and Barbara Lagoa. (Pp. 1-60.) Lagoa wrote a concurring opinion (pp. 62-80), and Pryor also wrote a one-page concurring opinion (p. 61), joined by Lagoa, responding to an assertion in the dissents. Judges Beverly Martin (pp. 81-96), Adalberto Jordan (pp. 97-189), and Jill Pryor (pp. 190-200) each wrote a dissent and joined each other’s dissents. Judge Charles Wilson joined all three dissents.

I haven’t had time yet to read through the competing opinions. (In an earlier phase of the case back in February, I found very puzzling an Eleventh Circuit panel’s holding that the condition that a felon satisfy the financial terms of his sentence somehow violated the Equal Protection Clause, and I expressed my hope for en banc review of that holding.) For now, I will present some excerpts from the majority opinion on the Equal Protection claim and invite interested readers to work their way through that opinion and the dissents:

The only classification at issue is between felons who have completed all terms of their sentences, including financial terms, and those who have not. This classification does not turn on membership in a suspect class: the requirement that felons complete their sentences applies regardless of race, religion, or national origin. Because this classification is not suspect, we review it for a rational basis only….

[The Florida provisions] are markedly different from the poll tax in Harper [v. Virginia Bd. of Elections (1966)]. They do not make affluence or the payment of a fee an “electoral standard.” They instead impose a different electoral standard: to regain the right to vote, felons, rich and poor, must complete all terms of their criminal sentences. Unlike the poll tax in Harper, that requirement is highly relevant to voter qualifications. It promotes full rehabilitation of returning citizens and ensures full satisfaction of the punishment imposed for the crimes by which felons forfeited the right to vote….

The people of Florida could rationally conclude that felons who have completed all terms of their sentences, including paying their fines, fees, costs, and restitution, are more likely to responsibly exercise the franchise than those who have not. If a State may decide that those who commit serious crimes are presumptively unfit for the franchise, it may also conclude that those who have completed their sentences are the best candidates for reenfranchisement.

Seems quite straightforward to me.

Law & the Courts

This Day in Liberal Judicial Activism—September 11

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(Kuzma/iStock/Getty Images Plus)

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

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

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

Law & the Courts

‘Once Mentally Ill, Always Mentally Ill’?

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Federal law prohibits an individual who has been “committed to a mental institution” from possessing a firearm. In rejecting Duy Mai’s claim that the Second Amendment forbids enforcing this provision against him, a Ninth Circuit panel asserted, “We emphatically do not subscribe to the notion that ‘once mentally ill, always so.’” But in their dissents today from the Ninth Circuit’s denial of rehearing en banc, Judge Patrick Bumatay and Judge Lawrence VanDyke persuasively argue that the panel decision rests on precisely that proposition.

Here are some excerpts from Bumatay’s dissent:

Today, our court advances an extraordinarily sweeping view of government power. Against the text, history, and tradition of the Second Amendment, we hold that the government may forever deprive a person of the individual right to bear arms—if that person spends even one day committed involuntarily, even as a juvenile, and no matter the person’s current mental health soundness. Of course, we only adopt this view for the Second Amendment. For other, more fashionable constitutional rights, we would not countenance such an abridgment….

Mai has been a productive member of society for nearly 20 years. But like most people, Mai has faced his share of challenges. At the age of 17, he suffered from depression, for which he was involuntarily committed to a mental health hospital for a little over two months total after a Washington state court determined that he might be a harm to others. But since Mai’s commitment order expired in August 2000, he has not been re-committed and his medical record shows no reoccurrence of serious mental illness. He has no criminal history or substance abuse issues.

Under state and federal law, Mai was barred from possessing a firearm due to his involuntary commitment. In 2014, Mai successfully petitioned the State of Washington to remove the state-law barrier. Mai submitted his medical history showing that he’s been free of depression since at least 2010 and that, based on the opinions of multiple psychologists, he is not considered a significant risk of suicide or harm to others. Based on this evidence and declarations from his friends and family, the Washington court agreed that Mai doesn’t present a substantial danger to himself or to the public and that the symptoms that led to his commitment are not reasonably likely to reoccur. Thus, today, under state law, Mai’s right to possess a firearm has been fully restored.

Mai’s final hurdle is federal law. It prohibits an individual who has been “committed to a mental institution” from possessing a firearm. 18 U.S.C. § 922(g)(4). Mai brought an as-applied challenge to § 922(g)(4) and sought declaratory and injunctive relief declaring him eligible to possess a firearm under federal law and the Constitution. The district court granted the government’s motion to dismiss. Applying intermediate scrutiny, the district court rejected Mai’s claim based on various studies linking mental illness to a heightened risk of gun violence.

On appeal, this court affirmed. Without bothering itself with the text, history, or tradition of the Second Amendment, the court decided that, due to Mai’s brief commitment, he was not a “law-abiding, responsible” citizen and, therefore, not protected by the Second Amendment’s “core.” In so ruling, the court compared Mai’s past commitment to a conviction for domestic violence. The court also concluded that Washington’s adjudication of his mental soundness and subsequent restoration of his gun rights—and Mai’s present-day mental health status—were irrelevant to the constitutional analysis. Finally, with the help of studies from Sweden, Australia, Italy, and other countries, the court ruled that the permanent deprivation of Mai’s fundamental right cleared intermediate scrutiny. We should’ve corrected the layers of errors in this decision through en banc review.

Bumatay argues in Parts II and III of his dissent that the Supreme Court’s ruling in District of Columbia v. Heller doesn’t subject Second Amendment rights to “judicial interest balancing” and that section 922(g)(4) can’t be applied to Mai under the original understanding of the Second Amendment. VanDyke joined Bumatay’s dissent in full (and Bumatay joined VanDyke’s).

In Part IV of his dissent (joined in whole or part by six other judges), Bumatay argues that the panel botched its balancing test by incorrectly identifying intermediate scrutiny as the proper standard of review (even though the provision completely deprives Mai of the ability to possess a firearm) and by misapplying that standard (by relying on “off-point studies conducted overseas”).

Law & the Courts

Judicial Winning: Eric Murphy

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(Kuzma/iStock/Getty Images Plus)

Eric Murphy’s distinguished record of serving the people of Ohio made President Trump’s decision to nominate him for the Sixth Circuit a no-brainer. From 2013 until 2019, Murphy served as Ohio’s Solicitor General, representing the state before the U.S. Supreme Court, the Sixth Circuit, and the Ohio Supreme Court. During his tenure, he fought against government overreach in numerous cases, including a challenge to the Affordable Care Act. Under Murphy’s leadership, the Ohio Solicitor General’s office was awarded multiple “Best Brief” awards from the National Association of Attorneys General.

Since ascending to the federal bench, Judge Murphy has remained committed to preserving the separation of powers and preventing judicial overreach. In Gary B. v. Whitmer, for example, a group of students from Detroit’s worst-performing public schools sued Governor Gretchen Whitmer in federal court. A Sixth Circuit panel found in April that the Constitution guarantees these students a “fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy.” According to the majority, in other words, a federal court has the power to determine the adequacy of classroom conditions, books, materials, curricula, and teachers provided to students by a state government.

Judge Murphy dissented. As he explained, he was deeply concerned about the alleged school conditions, which “would significantly impair any child’s ability to learn.” And if he “sat in the state legislature or on the local school board,” he would “work diligently to investigate and remedy the serious problems” the students identified. But of course, judges are not legislators, and the Constitution does not give them unfettered power to redress every wrong in society.  Instead, that power resides with the people and is expressed through the people’s elected representatives.

Judge Murphy went on to explain that the Supreme Court has repeatedly held that education is “not a fundamental right” and that the majority’s decision would violate important separation of powers principles. Courts cannot “compel states to raise their taxes to generate the needed funds” to improve schools or mandate the “minimum amount of training” teachers must receive.  Nor can the federal government impose a “one-size-fits-all duty on all 50 states to devote an unspecified level of taxpayer dollars to an unspecified level of education.”

All three judges in Gary B. v. Whitmer agreed that Detroit’s students had raised deeply troubling allegations about the schools their government officials compel them to attend. But Judge Murphy’s dissent shows principled restraint and all too rare judicial humility. No matter how concerning the students’ claims, he explained, “the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.” This dissent received some measure of vindication when the Sixth Circuit granted en banc review, which automatically vacated the majority’s decision, before the parties settled, causing the dismissal of the case as moot.

In this era of nationwide injunctions and rampant abuses of the limited Article III power by unelected judges, Judge Murphy’s restraint is a welcome reminder of the constitutional design our Founding Fathers intended.

Law & the Courts

The Left Tries to Take Down Another Stellar Trump Judicial Nominee

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President Trump’s determined transformation of the federal judiciary has elevated some of the brightest under-40 members of the conservative legal movement, from Andy Oldham of the Fifth Circuit to Allison Jones Rushing of the Fourth Circuit, to the federal courts. These judges will be on the bench for a very long time, and the left knows it, which is why the confirmation battles for many of these stellar nominees are so brutal.

So it should come as no surprise that the left has fired up the smear machine yet again after President Trump’s terrific nomination of Kathryn (Kat) Kimball Mizelle to the U.S. District Court for the Middle District of Florida, using her age as a way to imply that she is not qualified to be a federal judge.

Mizelle is 33, a year older than Joseph Story was when he became a justice of the Supreme Court. Over the last 40 years, several nominees her age and younger were confirmed to district courts: Myron Thompson (age 33) to the Middle District of Alabama under Jimmy Carter; Julia Smith Gibbons (age 33) to the Western District of Tennessee, Ricardo Hinojosa (age 33) to the Southern District of Texas, and Sidney Fitzwater (age 32) under Ronald Reagan. Edith Jones was 35 when Reagan appointed her to the Fifth Circuit, and she has served there with distinction for 35 years and counting.

Not surprisingly given its longstanding partisan bias, the American Bar Association gave Mizelle a “Not Qualified” rating on the eve of her hearing today. The ABA’s rationale was limited to questioning the sufficiency of her experience, even while acknowledging her “keen intellect” and “strong work ethic” and making clear that “[h]er integrity and demeanor are not in question.”

By any reasonable metric, Mizelle has amassed significant legal experience. She served in multiple roles in the Department of Justice, from the Associate Attorney General’s office to the Tax Division, and she was even a Special Assistant U.S. Attorney. Now she is making her mark as a lawyer at a top firm, Jones Day, and in January of this year, she co-taught a course on the religion clauses of the First Amendment with Justice Thomas at her alma mater, the University of Florida. And the range of her experience clerking could not be wider. She has clerked in the Middle District of Florida, as well as the Eleventh Circuit, the D.C. Circuit, and for Justice Thomas on the Supreme Court.

She has argued approximately 40 times in federal district court, including more than a dozen contested hearings, and she has tried two jury trials to verdict. She prosecuted the largest sex-trafficking ring in the Eastern District of Virginia’s history, prosecuted a $10 million tax fraud case in North Carolina, and conducted grand jury investigations in eight federal districts across six different states.

During her nomination hearing before the Senate Judiciary Committee this morning, Senators Dianne Feinstein and Richard Blumenthal, with no more ammunition than the ABA letter, questioned her about her experience as trial counsel. They changed the subject after she articulated her experience, particularly as a federal prosecutor. Senator Mike Lee gave her a chance to elaborate on her work examining witnesses, drafting indictments, and authoring well over 50 briefs. He concluded, “This is an exceptionally qualified nominee, and one who not only meets, but exceeds many of the qualifications from nominees of presidents of both parties who I’ve seen come before this committee.” He might have added that her trial experience surpassed that of Obama district court appointees Alison Nathan and Ketanji Jackson, both of whom were given a higher rating by the ABA.

Keep in mind that Mizelle has achieved her standing in the legal world as a young, conservative woman. Unfortunately, that has put a target on her back. As Mark Levin recently lamented about what liberals were preparing to do to Mizelle, “You see, only leftwing women are to be praised. They’re historic. A brilliant, young conservative woman like this is trashed.” It does not fit the media’s narrative that some of President Trump’s best judicial appointments — Amy Coney Barrett, Barbara Lagoa, Lisa Branch, and many others — have been women.

Mizelle’s nomination has broad support. Florida senators Marco Rubio and Rick Scott released statements of support the day her nomination was announced (see statements here and here). Jesse Panuccio, the former acting associate attorney general who supervised Mizelle, called the nominee “a trailblazer who has already distinguished herself as one of Florida’s leading legal lights.” Top officials in Florida’s state government, including the state’s attorney general and the leaders of both houses of the Florida legislature, have also praised her nomination.

The left will hide behind any rationale to tear down a Trump nominee, and for Mizelle it appears they have settled on age. But truthfully, the left’s concern is that the president is about to appoint yet another judge who likely will serve for a long time and interpret our Constitution and laws as written. All the better reason for the Senate to confirm her swiftly.

Law & the Courts

Strong Statement by President Trump on Supreme Court Nominations

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As a preface to his list of new Supreme Court candidates, President Trump delivered a very strong statement on why it matters whether he or Joe Biden is making judicial nominations over the next four years. Here’s my cleaned-up version (e.g., capitalization added, typos fixed) of an unofficial transcript I received by email:

The nomination of a Supreme Court justice is the most important decision an American president can make. For this reason, candidates for president owe the American people a specific list of individuals they consider for the United States Supreme Court….

What has always made America exceptional is our reverence for the impartial rule of law. People have come from all over the world to pursue the American dream based on this sacred principle. Equality under the law is the bedrock of our society. It is the principle that inspired American heroes to abolish slavery end segregation, secure civil rights and build the most free and just nation in history.

Unfortunately, there is a growing radical left movement that rejects the principle of equal treatment under the law. If this extreme movement is granted a majority on the Supreme Court, it will fundamentally transform America without a single vote of Congress.

Radical justices will erase the Second Amendment, silence political speech, and require taxpayers to fund extreme late-term abortions. They will give our unelected bureaucrats the power to destroy millions of American jobs. They will remove the words “under God” from the Pledge of allegiance. They will unilaterally declare the death penalty unconstitutional, even for the most depraved mass murderers. They will erase national borders, cripple police departments, and grant new protections to anarchists, rioters, violent criminals, and terrorists.

In the recent past, many of our most treasured freedoms including religious liberty, free speech, and the right to keep and bear arms have been saved by a single vote on the United States Supreme Court. Our cherished rights are at risk, including the right to life, and our great Second Amendment. Over the next four years, America’s president will choose hundreds of federal judges and in all likelihood, one, two, three, and even four Supreme Court justices. The outcome of these decisions will determine whether we hold fast to our nation’s founding principles or whether they are lost forever.

That is why today, I am announcing 20 additions to my original list of candidates for the United States Supreme Court. Should there be another vacancy on the Supreme Court during my presidency, my nominee will come from the names I have shared with the American public, including the original list, and these 20 additions.

Joe Biden has refused to release his list, perhaps because he knows the names are so extremely far left that they could never withstand public scrutiny or receive acceptance. He must release the list of justices for people to properly make a decision as to how they will vote. It is very important that he do so.

Law & the Courts

Trump’s Additions to Supreme Court List

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President Trump today added 20 names to his existing list of Supreme Court candidates and committed to select his next nominees from the revised list. The overall list is outstanding.

Here are the new names, in alphabetical order:

Bridget Bade, Ninth Circuit

Daniel Cameron, Kentucky AG

Paul Clement, former Solicitor General

Tom Cotton, U.S. Senator

Ted Cruz, U.S. Senator

Stuart Kyle Duncan, Fifth Circuit

Steven Engel, AAG for DOJ’s Office of Legal Counsel

Noel Francisco, former Solicitor General

Josh Hawley, U.S. Senator

James Ho, Fifth Circuit

Gregory Katsas, D.C. Circuit

Barbara Lagoa, Eleventh Circuit

Christopher Landau, Ambassador to Mexico

Carlos Muñiz, Florida supreme court

Martha Pacold, Northern District of Illinois

Peter Phipps, Third Circuit

Sarah Pitlyk, Eastern District of Missouri

Allison Jones Rushing, Fourth Circuit

Kate Todd, deputy White House counsel

Lawrence VanDyke, Ninth Circuit

There are a number of outstanding Trump appointees who did not make the list. Perhaps the most surprising name missing is D.C. Circuit judge Neomi Rao.

Law & the Courts

Renatha Francis’s Appointment to the Florida Supreme Court in Jeopardy

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In May, Florida governor Ron DeSantis announced his selection of Justice-designate Renatha Francis to the state’s highest court. Francis is currently a circuit judge in Palm Beach County.

When DeSantis announced that Francis’ appointment, he said that it would take effect on September 24, when she meets an eligibility requirement for ten years of membership in the Florida Bar. The Florida constitution requires justices to serve ten years in the Florida Bar prior to holding office. The text of the Florida constitution, however, does not require ten years of bar membership before a lawyer or judge may apply or be nominated and selected for office.

Moreover, the Florida supreme court previously held in Miller v. Mendez that the eligibility requirements must be met at the time a justice takes office, not earlier.  Another Florida supreme court opinion (Lawson v. Page) held that the governor’s appointment is not complete until the governor issues a commission to the justice, which in this case will happen on September 24, when Francis will meet all eligibility requirements, including the ten-year bar-membership threshold.

The nine-member Judicial Nominating Commission relied on this text and those precedents when it evaluated the applicants and certified a slate of nominees, which included Francis. Governor DeSantis similarly relied on the same authority when he announced Francis’ selection on May 26th.

Nonetheless, Democratic state house representative Geraldine Thompson petitioned to invalidate Justice Francis’s appointment. After initially denying Representative Thompson’s petition, yesterday the Florida supreme court took the extraordinary step of allowing Thompson to amend her petition to state a new claim after the case had been fully briefed and decided on the merits. Perhaps even more surprising was that yesterday the court issued an order for the governor to show cause why the court should not order him to pick a new justice from a group of seven of the initial nine nominees. The court gave the governor only one day to respond to the amended petition and the order to show cause.

It is impossible to speculate on what the Florida supreme court will do next, but if it takes the extreme step of declaring Francis’s prior nomination and selection defective in the face of the court’s prior precedents, the legally appropriate remedy must allow the Judicial Nominating Commission to reconvene and certify a new slate of nominees in light of the court’s new interpretation of the eligibility requirements.

Law & the Courts

This Day in Liberal Judicial Activism—September 9

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(Brennan Linsley/Pool/via Reuters)

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

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

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

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

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

Law & the Courts

Judicial Winning: Daniel Bress

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(Carlos Jasso/Reuters)

Before becoming a judge on the Ninth Circuit, Daniel Bress had, by age 39, accomplished in just a few years what many lawyers aspire to achieve over the course of an entire career. He clerked for the late Justice Scalia. He was a partner at a law firm where, among numerous other awards, he was named a rising star by the National Law Journal, Law360, and Benchmark litigation. And he was an adjunct professor of law. His students remember him fondly as a professor with “an incredible mind” who pushed them to think outside the box. It came as no surprise, then, that President Trump nominated Bress to the Ninth Circuit.

Since ascending to the federal bench, Judge Bress has demonstrated a keen understanding of the law and a principled adherence to judicial restraint. Take his dissent back in May in Doe #1 v. Trump. In that case, a district court issued a nationwide injunction against the enforcement of an immigration policy articulated by President Trump in Proclamation No. 9945. The policy placed certain restrictions on the entry of illegal immigrants whose stay in the country would impose undue financial burdens on our health-care system, taking precious care and resources away from the Americans who need them most.

Before Doe #1, the Supreme Court had ruled in Trump v. Hawaii that the president has “sweeping authority” to decide whether, when, and for how long to suspend immigration. And several members of the Court, as well as legal scholars, expressed deep skepticism about whether it is constitutional for a district court with limited geographic jurisdiction to issue a universal injunction against the executive branch.  Undeterred by all of this, a panel of the Ninth Circuit upheld the injunction.

In his dissent, Judge Bress explained that the panel’s decision “inflicts real damage on our constitutional system” because it represents a usurpation of the president’s power by the courts that our Constitution simply does not allow. “It is a bad day for the separation of powers” that the Founders intended, Judge Bress wrote, “when the Executive — operating at the apex of his constitutional mandate — loses out to players who lack the authority that the Constitution and Congress entrusted to him.” It was a bad day for the rule of law, too. Judge Bress pointed out that the majority “endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii.”

Though activist opinions like the majority’s in Doe #1 v. Trump are sadly all too common on the left-leaning Ninth Circuit, Judge Bress’s commitment to the rule of law is a breath of fresh air. With more judges like him on the federal bench, perhaps Judge Bress’s hope will soon be realized and “the great policy debates of our time” will be “resolved in the halls of Congress, the public square, and at the ballot box” rather than by an unelected “district court in Oregon or a three-judge panel in San Francisco.”

Law & the Courts

This Day in Liberal Judicial Activism—September 8

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Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

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

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

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This Day in Liberal Judicial Activism—September 7

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Florida Supreme Court Building (Wikimedia Commons)

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

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

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

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

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

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

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This Day in Liberal Judicial Activism—September 6

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Senator Dianne Feinstein on Capitol Hill, Washington, D.C., May 8, 2017. (Aaron P. Bernstein/Reuters )

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

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

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

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This Day in Liberal Judicial Activism—September 5

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(Wikimedia Commons)

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

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

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Fourth Circuit Abortion Antics

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Over the past two decades, the Fourth Circuit has gone from being arguably the best federal court of appeals to being perhaps the very worst.

Yesterday’s en banc ruling in Mayor and City Council of Baltimore v. Azar marks another low. Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” By a vote of 9 to 6, the court ruled that the HHS’s regulations implementing Title X are unlawful. In so ruling, the court creates a conflict with the en banc Ninth Circuit’s ruling in February in favor of the regulations.

An excerpt from the introduction of Judge Richardson’s dissent (joined by the five other dissenters):

In my view, the Final Rule falls well within HHS’s established statutory authority, and the record shows that it was a product of reasoned decisionmaking. At the outset, Baltimore’s statutory challenge faces a significant problem: The Supreme Court has already ruled that the regulations fall inside the scope of Title X’s broad mandate. The ‘new’ Rule substantially returns the Title X regulations to the version that HHS adopted in 1988, and which the Supreme Court upheld as a permissible interpretation of Title X in Rust v. Sullivan (1991). Rust remains binding precedent, and the relevant text of Title X has not changed. In response to this roadblock, Baltimore asserts that two post-Rust congressional enactments require us to deviate from the Supreme Court’s holding. But neither renders HHS’s interpretation unreasonable. So precedent dictates the same result for the same Chevron challenge to the same requirements.

Baltimore’s arbitrary-and-capricious challenge similarly fails. In Rust, the Supreme Court rejected an arbitrary-and-capricious challenge to remarkably similar regulations, justified on remarkably similar rationales. Yet, in the majority’s view, HHS capriciously dismissed commenters’ ethical objections to the referral regulations and arbitrarily estimated the costs of the separation requirement. Again, I disagree. Whatever courts or commenters think about the wisdom of an agency’s regulations are of no moment. We must uphold regulations against allegations of arbitrariness, capriciousness, whimsicality, or temperamentality so long as the record shows that the agency gave a hard look and a reasonable response to the problem at hand. And because I conclude that the agency considered the issues and drew a rational line from the facts it found to the choices it made, I would reject Baltimore’s arbitrary-and-capricious challenge.

In reaching the opposite conclusion, the majority not only thumbs its nose at the Supreme Court but substitutes its own judgment for that of an executive agency accountable to the elected President. Then, brushing aside the traditional limits on our remedial authority, the majority enjoins enforcement of the entire Final Rule throughout all of Maryland. And since we are the first Circuit bold enough to skirt Rust and enjoin the Final Rule, our decision rips open a circuit split. [Citing contrary Ninth Circuit en banc ruling.] Today’s decision ignores text, abandons administrative-law principles, and forsakes the limited role of courts, particularly inferior ones, in our constitutional structure.

Unable to hide its bias, the Fourth Circuit majority even refers to the provisions at issue in Rust as “the Gag Rule provisions”: “Parts of the Final Rule essentially revive the Gag Rule provisions of the 1988 Rule.” It’s bad enough that any federal judge would contend that a refusal to provide funding amounts to a “gag” and would echo the brazenly political epithet of the rule’s opponents. But it’s even worse here, for, as Richardson points out (just as Ninth Circuit judge Sandra Ikuta did in her majority), the new HHS rule differs from the 1988 rule in that “it permits Title X providers [to use Title X funds] to provide nondirective pregnancy counseling that includes discussion about abortions”—and thus eliminates the very provision that had been mischaracterized as a “gag.”

Law & the Courts

This Day in Liberal Judicial Activism—September 4

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A homeless man sleeps on the street.October 24, 2019. (Mohamed al-Sayaghi/Reuters)

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.

Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2014—Graham Henry’s saga of proceedings challenging his conviction for a murder in 1986 had finally seemed to come to an end when the Supreme Court denied his certiorari petition in June 2014. But in an extraordinary procedural contortion, the en banc Ninth Circuit instead votes to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

In dissent, Judge Richard Tallman, joined by four other judges, issues an opinion with this memorable opening:

“If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.”

In December, the Supreme Court will take the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in the case. In a transparent effort to avoid having to explain its misconduct, the Ninth Circuit, on December 30, will terminate its proceedings.

2015—By a vote of 6 to 3, the Washington supreme court rules in League of Women Voters v. Washington that the state law authorizing charter schools violates the state constitution. The ruling came just as nine charter schools, serving some 1,200 students, had started the school year, thus (as one article reports) “creating chaos for hundreds of families.”  

2018—A Ninth Circuit panel, in an opinion by Judge Marsha Berzon, rules (in Martin v. City of Boise) that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”

Some months later, Judge Milan D. Smith Jr. (joined by five of his colleagues) will dissent from his court’s refusal to grant rehearing en banc:

“In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit. Under the panel’s decision, local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination. Perhaps most unfortunately, the panel’s opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.”

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Why Is the Federal Judicial Center Sponsoring One-Sided Panels on Hotly Contested Issues?

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I’ve learned that the Federal Judicial Center—“the research and education agency of the judicial branch of the U.S. government”—is sponsoring a 90-minute webinar on October 9 on “Election Litigation During the COVID-19 Pandemic.” The webinar is being held for all federal district judges and their law clerks in anticipation of litigation in connection with the upcoming election.

I’m very surprised to see that the FJC has compiled a very one-sided panel for this presentation: The panelists are liberal law professors Richard Hasen and Edward Foley and federal district judge Benita Y. Pearson, an Obama appointee.

My point, I emphasize, is not to contest the qualifications of any of the panelists. I wonder, rather, why, on such a hot-button issue on which the FJC obviously expects high-profile and time-sensitive litigation with partisan implications, the FJC wouldn’t undertake to present panelists with broadly competing perspectives. (This review by law professor Bradley A. Smith of a recent book by Hasen illustrates the insights that such competing perspectives might provide.) The composition of the panel instead suggests to the audience that the ground for reasonable debate lies in whatever distance exists between Hasen and Foley.

Alas, the FJC seems to be making a habit of sponsoring one-sided liberal panels. Just two weeks ago, it held a “Court Web” program (for all federal judges and judicial employees) on the topic of implicit bias. As the program’s description indicates, the term implicit bias refers to “how unconscious assumptions can influence the ways in which people perceive facts and draw inferences.”

Under such an expansive definition, I don’t doubt that we all have our own implicit biases. But there is vigorous debate over what social psychology has been able to establish about implicit bias, and there is particular controversy over the soundness of the widely used Implicit Association Test. What role, if any, supposed evidence of implicit bias should play in, say, employment-discrimination cases is hotly disputed.

So you’d think that any worthwhile panel on implicit bias might be designed to draw out the different sides of these disputes. Instead, the three panelists on the FJC program—Sixth Circuit judge Bernice Donald, Stanford professor Jennifer Eberhardt, and retired federal judge (and former FJC director) Jeremy Fogel—appear to be broadly allied in their perspectives on the topic. (Justice Breyer hailed Fogel for his leadership in having the FJC “put an emphasis on making judges aware of such things as implicit bias.”)

Law & the Courts

Judicial Winning: Kevin Newsom

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(Michał Chodyra/Getty Images)

Kevin Newsom’s impressive tenure as solicitor general of Alabama made him an obvious choice for President Trump to appoint to the Eleventh Circuit, where Judge Newsom now sits. Just a few months after his appointment, Judge Newsom made it onto President Trump’s Supreme Court shortlist.

Judge Newsom cares deeply about getting cases right. He demonstrated as much in a recent Establishment Clause case about a 34-foot Latin cross in the City of Pensacola’s Bayview Park.

In Kondrat’yev v. City of Pensacola, decided in February of this year, Judge Newsom not only authored the court’s decision, but also issued a separate concurring opinion of his own (joined by another judge on the panel) to point out a glaring issue with the precedent he was bound to apply in the decision.

Plaintiffs challenged the presence of the Bayview Park cross in Pensacola — which has stood for over 75 years — on Establishment Clause grounds. They argued that the First Amendment’s Establishment Clause, which provides that “Congress shall make no law respecting an establishment of religion,” barred the city’s maintenance of the cross.

Judge Newsom parsed the Supreme Court’s recent decision in American Legion v. American Humanist Association to answer two questions. First: May the plaintiffs even bring this challenge (do they have standing to sue)? And second: Is there a First Amendment violation here? On the first question, American Legion is unclear; as such, Judge Newsom had to apply Eleventh Circuit precedent to hold that the plaintiffs’ “spiritual” or “metaphysical” injury was enough of a concrete injury to justify consideration of the case. On the second question, however, Judge Newsom applied American Legion and found that the cross could stay.

It would have been easy for Judge Newsom to simply author that opinion and call it a day, but he was not done. He proceeded to write separately from the court, highlighting the wrongheadedness of the Eleventh Circuit precedent he had to follow, which allows for standing in these “spiritual injury” cases. Judge Newsom noted that such a precedent was “utterly irreconcilable” with Supreme Court precedent barring “psychological injury” cases. Further, he asked, “can it really be that I — as a judge trained in the law rather than, say, neurology, philosophy, or theology — am charged with distinguishing between ‘psychological’ injury, on the one hand, and ‘metaphysical’ and ‘spiritual’ injury, on the other? Come on.”

Judge Newsom’s analysis here was on point: The “spiritual injury” standard threatens to invite judges to stretch the Establishment Clause well past its original meaning. Judge Newsom recommended that the full Eleventh Circuit reconsider.

Standing has been a hot topic at the Eleventh Circuit. With more judges like Kevin Newsom on the federal courts thanks to President Trump and the Senate, it is likely that the correct conception of the standing doctrine will begin to prevail in short order.

Want to learn more about judicial winning? Click here.

Law & the Courts

California Judge Bars UC Schools from Using SAT/ACT Tests

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In a ruling last Friday (in Smith v. Regents of the University of California), state trial judge Brad Seligman issued a preliminary injunction barring the various University of California schools from considering the results of SAT or ACT tests in admissions and scholarship decisions.

When I first learned of this ruling, I wondered how a judge could reach such a result. On reading Seligman’s opinion, while I don’t find it persuasive, I also see that UC president Janet Napolitano and the UC Regents were complicit in their own defeat.

In February (as this article reports), “University of California faculty leaders [recommended] the continued use of the controversial SAT and ACT as an admission requirement for now, citing UC data showing the standardized tests may actually help boost enrollment of disadvantaged students.”  But in May, the UC Regents, in their dubious wisdom, overrode the faculty recommendation. They decided to eventually eliminate the use of SAT and ACT tests but allowed campuses to decide to use the tests as an optional part of the admissions process until 2022. Some campuses (e.g., Berkeley) decided to immediately abandon using the tests, but most (e.g., UCLA) opted for the optional option.

Seligman determines that students with disabilities were likely to prevail on their claim that the test-optional policy “denies [them] meaningful access to the additional admission opportunity that test-submitters will enjoy, in large part because they have not taken these tests and will not be able to take them with appropriate accommodations during this Covid-19 pandemic.”

Seligman explicitly agrees with UC that “there is no data available to demonstrate” that the optional use of the tests “will have an adverse impact on admission rates of persons with disabilities,” but he objects that applicants with disabilities can’t “take advantage of the ‘plus factor’ or ‘second look’ available to test takers.”

On the question of relative harms, Seligman seems not to recognize that the lack of data that he has acknowledged makes it impossible for him to assess the magnitude of the harm to disabled applicants. In weighing the public interest, he deploys UC’s decision to abandon the tests against it:

The public interest in continuing the use of tests that [UC] has indicated that it will abandon is not clear, particularly where three UC campuses, including Berkeley, will immediately cease using test results in admissions. UC does not seriously argue that the test is a valid and effective means of determining admissions not does it deny that non-disabled, economically advantaged, and white test takers have an inherent advantage in the test process.

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An Open Letter to Judge Justin Walker as He Joins the D.C. Circuit

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Judge Justin Walker is sworn in prior to testifying before a Senate Judiciary Committee confirmation hearing on his nomination to be a circuit judge for the District of Columbia Circuit on Capitol Hill in Washington, May 6, 2020. (Jonathan Ernst/Pool via Reuters)

Dear Judge Walker,

Welcome to the D.C. Circuit.

As you begin your tenure on the country’s second-most powerful court, there are a few things you should know.

As former clerks to the D.C. Circuit — you for then Judge Kavanaugh and I for Judge Sentelle — we remember the court for its collegiality, integrity, and fairness. But times have changed, and unfortunately, these days the court is perhaps better known for its politicization and bitter infighting.

In recent years you may have seen occasional screeds and shaky videos from Senator Sheldon Whitehouse about the politicization of the Supreme Court, and his senseless rants about “Roberts Five” decisions. Ha. Has Senator Whitehouse been paying attention to the D.C. Circuit the last several years? Because without a doubt, the new D.C. Circuit is *the* most politicized court in the nation.

For example, take the recent retirement of Judge Griffith, the judge you are replacing. It used to be the case that after 15 years of service on the federal bench, a judge could retire in peace, save for some light ribbing and roasting at a farewell party thrown by the judge’s colleagues.

Not anymore. When Judge Griffith decided to retire, the left-wing dark money group Demand Justice accused the judge of stepping down in exchange for a bribe arranged by Senate majority leader Mitch McConnell. As even NPR reported, this was a baseless smear — Judge Griffith was retiring to care for his wife, who had been diagnosed with a debilitating chronic illness several years earlier.

Nonetheless, Chief Judge Srinivasan lent credibility to Demand Justice’s ridiculous and unprecedented attack by asking the Supreme Court to launch an investigation into the circumstances surrounding Judge Griffith’s retirement.

Chief Justice Roberts swiftly rejected this request. As the Chief Justice explained, Demand Justice’s accusation was nothing more than an unverified correspondence. The rules for judicial-misconduct proceedings required Chief Judge Srinivasan to determine if there was any reasonable basis for investigating the accusation before transferring it to the Supreme Court. Srinivasan didn’t bother to do that inquiry, and so Chief Justice Roberts rightly threw out his irregular request. But the damage was done to the reputation of a good man who did not need to add to his burdens.

Or consider the D.C. Circuit’s practice of going en banc, that is, having the full court rehear a case initially decided by a three-judge panel. Before 2017, the full court had voted to rehear cases only seven times in the preceding six years. By contrast, the court has gone en banc three times this year alone, and they may not be done yet.

These cases that the D.C. Circuit has taken en banc of late have not been technical fights over arcane federal regulations. No, the typical practice has been that the court’s progressive majority has voted to take cases en banc when a three-judge panel has had the audacity to rule in favor of the Trump administration. That is what happened in the case against General Michael Flynn and when the House Democrats sought to conscript the federal judiciary in their subpoena fight with former White House counsel Don McGahn. Just this week the Court, sitting en banc, sent General Flynn’s case back to Judge Sullivan for further proceedings, even though the Justice Department, the defense, and a panel of appellate judges agreed that the case should no longer be prosecuted.

It also happened in a case heard by your former boss. On October 20, 2017, a panel of the D.C. Circuit including then Judge Kavanaugh held in an unpublished order that the federal government was not required to immediately perform an abortion at the request of an illegal immigrant minor in the government’s custody. The order allowed the government to release the 17-year-old minor to a sponsor (usually a family member, friend, or acquaintance) in the United States, so long as she was released “expeditiously.” This would have allowed the immigrant to have an abortion, if she so chose, within a week of the panel’s decision.

Not good enough for the D.C. Circuit. Just four days later, and without oral argument, the en banc Court held that illegal immigrant minors have a constitutional right to obtain an abortion on demand. This was unprecedented, both because nothing in the Constitution supports such a right, and because the Court seldom, if ever, goes en banc to reconsider an unpublished decision.

And if these examples of the court’s worrying new direction aren’t enough, consider the selective leaks to the press of the judges’ internal correspondence. These leaks, featuring cleverly excerpted emails and out-of-context quotes, appear designed to force conservative judges to recuse themselves from cases about particularly contentious issues.

As you begin your tenure, you should expect a more political, more fractious court, where progressive policy ideas rather than the text of the law often drive outcomes. That means that you should be careful in your communications with colleagues, and that a once-robust forum for the internal and confidential exchange of ideas so crucial to effective decision-making no longer exists.

And it means that you — and the rest of us — should expect more of the same if November brings a Biden administration committed to resuming the practice of putting politics above the law with its selection of judges. If that were to happen, the new D.C. Circuit will become the model for every other federal appellate court across the country.

Law & the Courts

This Day in Liberal Judicial Activism—September 2

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President Obama nominating law professor Cornelia Pillard to D.C. Circuit. ( Mark Wilson/Getty Images)

2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.

In her dissent, Judge Johnnie B. Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) will reverse the Ninth Circuit in June 2004. Not a single justice will express agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion will take four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court will rule that Ring did not announce a watershed rule of criminal procedure.

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

2014—In Wesby v. District of Columbia, a divided panel of the D.C. Circuit, in a majority opinion by Judge Cornelia Pillard, rules that raucous partygoers who were arrested for unlawful entry into a home that they had no legal right to enter were entitled to summary judgment on their claim that the officers lacked probable cause to arrest them and that the officers were not entitled to qualified immunity.

More than three years later, the Supreme Court will unanimously reverse Pillard. Justice Thomas’s opinion for the Court lambastes the D.C. Circuit panel for “fail[ing] to follow two basic and well-established principles of law.” First, the panel majority “viewed each fact in isolation, rather than as a factor in the totality of the circumstances.” Amazingly, the panel thus entirely dismissed from its assessment any fact that was “not sufficient standing alone to create probable cause.” (The quote is from Pillard’s opinion, with Thomas’s emphasis added.) Second, the panel majority “mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation,’” even if they did not dictate such an explanation.

As Thomas sums it up, a reasonable officer could easily have concluded that there was a “substantial chance” that the partygoers had illegally entered the house:

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized.

The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.…

The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them…. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.

On the qualified-immunity question, Thomas sets forth the elementary and “straightforward analysis” that Pillard should have applied. The supposed rule that Pillard extracted from District of Columbia case law was not “settled law,” as it was not supported by the single decision she cited and was indeed undercut by decisions that the “officers cited … in their opening brief” but that Pillard’s opinion inexplicably “failed to mention.”