On May 10, Democratic members of the Senate Judiciary Committee released a “Review of Republican Efforts to Stack Federal Courts.” The deception starts on page one.
The cover letter signed by all ten Democrats states: “At the committee’s first 2018 markup, 17 judicial nominees were moved forward” and that “Republican senators . . . vot[ed] in lockstep to approve these nominees. The scene was emblematic of Republicans’ rush to fill vacancies under President Trump as quickly as possible.”
Approving 17 nominations in a single meeting — sounds like a “rush,” doesn’t it? Well, here’s rest of the story. Each of those 17 judicial nominees had been nominated months beforehand; some had been pending in the Senate for six months or more. The “rush” is already subsiding, isn’t it?
The Judiciary Committee held hearings on all of them last year and had already approved and sent most of them to the full Senate. The Democrats didn’t tell you that, did they?
Also missing from their account is the real reason those 17 judicial nominations were on the Judiciary Committee’s agenda in the first place. Senate Rule 31 states that “nominations neither confirmed nor rejected during the session at which they are made shall not be acted upon at any succeeding session without being again made to the Senate by the President.” That rule is routinely waived by unanimous consent. Democrats objected to waiving Rule 31 for a total of 100 nominees, sending 75 executive and 25 judicial nominations back to the president. All but two of these 17 judicial nominations were caught in that sweep.
On January 3, the president re-nominated these men and women, and the Judiciary Committee re-approved them on January 11, 2018, its first business meeting of the year. As of the date of the Democrats’ letter — May 10 — only two of these 17 had been confirmed. Looks like there’s no “rush to fill vacancies” left.
The other deception was the reference to Republicans voting “in lockstep to approve these nominees.” Sticking together to support judicial nominations of one’s own party did not bother Democrats when a Democrat was in the White House. On February 27, 2012, for example, then-Judiciary Committee chairman Patrick Leahy (D., Vt.) complained that, in three years, the committee had approved five U.S. District Court nominees on a party-line vote. This, he said, “depart[ed] dramatically from the long tradition of deference to home state Senators on district court nominees.”
Half of the Democrats on the Judiciary Committee — Leahy, Richard Durbin (Ill.), Sheldon Whitehouse (R.I.), Amy Klobuchar (Minn.), and Chris Coons (Del.) — have all served under Democratic presidents yet have never voted against a Democratic judicial nomination. Not once. In Leahy’s case, that covers more than 43 years and more than 1,900 confirmations. “Lockstep” may be in the eye of the partisan beholder, but that’s pretty impressive.
This report is 57 pages long. If the cover letter is any indication, the truth is going to take a beating. Strap yourselves in, it’s going to be a bumpy ride.
In this much-watched case, Masterpiece Cakeshop and its owner Jack Phillips challenged the decision of the Colorado Civil Rights Commission that held that he violated state anti-discrimination law in refusing to bake a cake for a same-sex wedding. Today, the Court ruled, by a vote of 7 to 2, that the state commission violated the Free Exercise Clause by failing to provide a “neutral and respectful consideration” of Phillips’s claims. Justice Kennedy wrote the majority opinion, which was joined in full by the Chief Justice and Justices Breyer, Alito, Kagan, and Gorsuch.
As evidence of the state commission’s “clear and impermissible hostility toward the sincere religious beliefs that motivated [Phillips’s] objection,” Justice Kennedy pointed out that “commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community.” He complains that one commissioner “even went so far as to compare Phillips’ invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust.”
As another “indication of hostility,” Kennedy also points out that Phillips’s conscience-based objection was treated less favorably than the objections of other bakers to creating cakes “with images that conveyed disapproval of same-sex marriage.”
In separate concurring opinions, Kagan (joined by Breyer) and Gorsuch (joined by Alito) sparred over whether the commission could have justified its disparate treatment of those other bakers.
In an opinion concurring in the judgment (joned by Gorsuch), Justice Thomas would have ruled for Masterpiece Cakeshop on both Free Speech and Free Exercise grounds.
Justice Ginsburg, joined by Justice Sotomayor, dissented.
This is an important victory, even as it kicks some bigger issues down the road. I hope to find time later today for some additional comments.
Last fall, I described the remarkable shenanigans in the case of an unaccompanied pregnant minor alien who was apprehended unlawfully entering the United States and who sought an order requiring the federal government to transport her to an abortion provider. In a unanimous ruling today in Azar v. Garza, the Supreme Court granted the Department of Justice’s petition for certiorari of the en banc D.C. Circuit’s ruling in her favor and vacated that ruling on the ground that the abortion that the minor obtained rendered the case moot.
This action by the Supreme Court is a big victory for the Department of Justice and for Solicitor General Noel Francisco, all the more so as some folks on the Left slammed DOJ’s certiorari petition as patently meritless and as “fundamentally a press release.” (I responded here and here to one such claim.)
On a much lesser matter, DOJ’s certiorari petition also suggested that the Court “may wish to issue an order to show cause why disciplinary action should not be taken against [the minor’s] counsel … for what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.” The Court instead concluded that it “need not delve into the factual disputes raised by the parties in order to answer the Munsingwear [vacatur] question here.”
This Thursday, June 7, the Senate Judiciary Committee is expected to vote to report to the Senate floor the nomination of Ryan Bounds to a Ninth Circuit vacancy in Oregon. From the Senate Democrats’ questioning at his hearing, it is clear that they have no meaningful case against his confirmation.
In a post days before Bounds’s hearing, I explained that claims that Bounds had improperly “failed to disclose” his college writings to the state selection committee that Oregon’s two Democratic senators, Ron Wyden and Jeff Merkley, had set up were utter flimflam. In brief: Wyden’s own staffer advised Bounds that providing to the selection committee only materials “going back as far as law school would be great.” Bounds complied with the advice from Wyden’s staffer. There is zero basis to believe that Bounds was trying to conceal those articles from the selection committee. Any speculation that Bounds might have been trying to conceal those articles is baseless and is amply refuted by the fact that he supplied them all to the Senate Judiciary Committee in his Senate questionnaire response in early January, before he met with the selection committee.
Further, as David Lat has summed it up (and as Alliance for Justice’s own presentation of Bounds’s oh-so-inflammatory remarks shows), Bounds’s college writings simply “poked fun at the excesses of political correctness,” but Wyden and Merkley instead unfairly “tar[red]” him as supposedly “biased against minorities, women and gays.”
One exchange at the hearing hilariously captures how empty the Left’s case against Bounds is: Senator Richard Blumenthal complained to Bounds that “You referred to fellow students as ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.” Bounds, in reply, made the obvious point that he was “decry[ing] the use of those names.” Blumenthal, following up, objected: “But you referred to fellow students with those terms.” Bounds again had to point out that he “was complaining about the fact that other people referred to my fellow students that way.”
Was Blumenthal being an idiot demagogue? Or was he poorly served by his own staffers?
I’ll note that Alliance for Justice makes the same silly claim against Bounds:
Using racist and offensive language, Bounds claimed that there were communities on campus who believed that the “opponent is the white male and his coterie of meanspirited lackeys: ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.”
(No, AFJ never alleges “racist and offensive language” beyond the very terms that Bounds was objecting to.)
It’s almost as if Blumenthal and/or his staffers never stopped to think for themselves but instead mindlessly parroted AFJ’s ridiculous smear.
1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim.
In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.”
I have previously discussed (see Part I and Part II) why a decision holding that the First Amendment precludes government officials from banning opposing viewpoints from their social media is not convincing. Here I will conclude by identifying several problems that this decision will create.
As even a casual user of any social media knows, not all commentary on those platforms is measured and polite. Crude, rude, racist, sexist, anti-Semitic, and otherwise vile comments are par for the course. Of course, such comments (provided they stop short of actual threats) are fully protected by the First Amendment. But it is one thing to say that someone who engages in such behavior cannot be prosecuted and quite another to say that they have to be tolerated on the web page of the person they are abusing. If the First Amendment prevents government officials from filtering out disagreeable speech, then they will be left without tools to reduce such behavior even on their own news feeds, because there is no way to separate “constructive criticism” from “hate speech.”
As an initial matter, the First Amendment doesn’t have a “hate speech exception,” so if a government official cannot ban someone from his Twitter feed because he doesn’t like the “criticism,” he also cannot ban someone on the basis that the “criticism” has crossed the line into “hate speech.” Second, even if such distinctions could be made, what constitutes “hate speech” is very much in the eye of the beholder. For example, during the 2016 campaign there were accusations that Trump’s campaign slogan “Make America Great Again” was racist. So is someone sub-tweeting Nancy Pelosi or Chuck Schumer with “#MAGA” engaging in protected “constructive criticism” or bannable “hate speech”? Similarly, is sub-tweeting Ted Cruz or Nikki Haley castigating them for not supporting boycott of Israel merely “constructive criticism” of U.S. policy or vile anti-Semitism? There simply is no way to draw a line between “permissible” and “impermissible” speech (which is why the First Amendment doesn’t). So if the District Court is correct that government officials’ Twitter accounts are public fora, then these officials will have to tolerate all sort of abuse on their own account, which is a peculiar outcome to say the least.
Furthermore, if it is true that women and minorities endure a disproportionate share of online abuse, then they will bear the brunt of this decision. The upshot is that the very groups now rejoicing over their win against President Trump, may come to rue this decision in short order.
Finally, faithfully applying the District Court’s decision de facto expands First Amendment’s protections to foreigner non-residents. Generally, the First Amendment doesn’tprotect the rights of foreignersabroad. On the other hand, social-media platforms tend to be global and its users are often neither citizens nor residents of the United States. Applying the First Amendment to Twitter means that U.S. politicians may not ban anyone no matter where in the world they may be located, because often enough it will be impossible to tell whether the other person is located in the United States or abroad and whether or not he is a U.S. citizen or a foreigner. As a legal matter, of course, politicians will remain free to block foreigners on their social media, but as a practical matter such differentiation may be impossible to achieve. The end result is that in practice, the constitutional protections would, contrary to Supreme Court’s precedent, expand to foreigners abroad. Given the significant concern of foreign influence on American political processes a decision that de facto requires American politicians to give a platform to foreign trolls is dubious as a matter of law and problematic as a matter of policy.
In short, the arguments in defense of the proposition that blocking political opponents on Twitter violates the First Amendment have thus far been rather unconvincing, but the problems that such a holding would create are quite significant. For these reasons, I doubt that the District Court’s decision will have significant staying power.
In Part I of this blog post, I discussed why I don’t think Twitter is a public forum, a condition that would be necessary for any claim that viewpoint discrimination in that realm is constitutionally prohibited. In this part I want to address other potential arguments that can be made against permitting government officials to ban critical Twitter users and why I find them equally unconvincing.
Some of my colleagues have suggested to me that when a government official bans someone from his Twitter feed, that official impinges on the banned person’s First Amendment right to “petition for redress of grievances.” But that argument fares no better than the “viewpoint discrimination” argument.
The Constitution certainly protects the right to petition for redress of grievances. It does not, however, guarantee that anyone will receive or pay any attention to such a petition. That is not surprising. The guarantee grew out of the abuses of the English monarchs, who when displeased with the contents of various petitions would order the imprisonment of the petitioners. This is why being Speaker of the House of Commons was considered to be a dangerous job and the elected individual had to be dragged to chair (a practice that still survives in a theatrical form). So the right to petition for redress of grievances only encompasses being free from penalties for doing so. It doesn’t protect any specific mode of petitioning (e.g., as a constitutional matter, the White House can choose not to accept DHL packages) nor does it guarantee that anyone in government will pay any attention to the petitioner. A Twitter ban doesn’t preclude someone from continuing to petition for redress of grievances. It is no different than instruction to office staff to ignore calls coming from a certain number. The blocked individual remains free to protest, write letters, organize campaigns, but he simply won’t be acknowledged by the owner of the Twitter account.
Nor does a Twitter ban interfere with the right to receive information. While no one can be punished for seeking or receiving information, the right does not include the right to be told of information by a particular public official at the time of your choosing. Were it otherwise, CNN could sue the President if he chose not to sit for an interview with any of its reporters but was amenable to engaging with other networks. Or a regular member of the public would have a cause of action for having less direct access to politicians then those with press credentials. A number of years ago, the Fourth Circuit considered a similar issue when it heard suit by the Baltimore Sun against Robert Ehrlich, then Governor of Maryland. Gov. Ehrlich, being less than pleased with the news stories by two of the Sun’s reporters ordered that his staff not grant any interviews or offer any cooperation to these particular individuals. When the paper sued, the Fourth Circuit noted “that government officials frequently and without liability evaluate reporters and reward them with advantages of access — i.e., that government officials regularly subject all reporters to some form of differential treatment based on whether they approve of the reporters’ expression.” In other words, the reporters had no constitutional claim to access to the Governor or his staff. It is hard to see why a Twitter user should fare differently.
Finally, blocking someone from viewing one’s account doesn’t affect associational rights because it in no way prevents the blocked person from associating with individuals other that the account’s owner. He can continue to share thoughts with them and even see their re-tweets from the account from which he himself was blocked. The only thing that the block does is preclude the blocked individual from associating with the account’s owner. But, of course, freedom of association runs both ways. No one has to associate with those whom he does not wish to associate with. Politicians are no different in this regard, and indeed we see it all the time when in order to showcase their disapproval of one another they refuse to attend events with each other. For example, a number of Democrats boycotted Donald Trump’s inauguration and State of the Union. Similarly, as a matter of constitutional law, President Trump could decline to invite, for example, Senator Warren to any White House official function simply because he doesn’t like her speeches and votes.
In the next and last part of this blog post I will focus on the problems that are likely to arise if the decision prohibiting politicians from blocking Twitter followers is upheld.
1992—In Davis v. Davis, the Tennessee supreme court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail.…” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.
The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton will appoint Daughtrey to the Sixth Circuit.)
On Monday the Senate will return from its Memorial Day recess, and Senate Majority Leader Mitch McConnell has scheduled a cloture vote for a district court nominee that afternoon. Leader McConnell has also filed for cloture for two other district nominees, setting in motion the confirmation votes of three district nominees by late next week or early the following week.
Here is this week’s update on federal judicial nominations:
Current and known future vacancies: 178
Courts of Appeals: 22
District/Specialty Courts*: 156
Pending nominees for current and known future vacancies: 85
Courts of Appeals: 10
District/Specialty Courts: 75
* Includes the Court of Federal Claims and the International Trade Court
Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings
Both Blue Slips Returned?
Judiciary Committee Hearing Date
David Porter (3rd)
Not yet scheduled
Paul Matey (3rd)
Not yet scheduled
Richard Sullivan (2nd)
Not yet scheduled
Jay Richardson (4th)
Not yet scheduled
Marvin Quattlebaum (4th)
Not yet scheduled
Ryan Nelson (9th)
Not yet scheduled
Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes
Judiciary Committee Hearing Date
Ryan Bounds (9th)
Britt Grant (11th)
Court of Appeals Nominees Awaiting Senate Floor Votes
Last week, a federal judge held that the First Amendment prevents the President from blocking political opponents on Twitter. This is not the firstsuch decision from a District Court (though not all of them have resulted in a victory for the plaintiffs), but the first one where the President is the defendant. I remain deeply skeptical of the arguments underpinning these decisions.
The thrust of the plaintiffs’ case is that blocking them on Twitter is discrimination based on their point of view, something that the First Amendment rarely, if ever tolerates. In this blog post, I will address why, in my view the argument does not hold.
There are three other potential arguments in support of the proposition that politicians cannot block Twitter users. First, it can be argued, blocking someone it makes it harder for that individual to get his viewpoint across directly to the politician thus arguably negating his right to petition for redress of grievances. Second, the block may impinge on the blocked individual’s ability to receive information — an interest long held to be protected by the First Amendment. Finally, blocking someone might infringe on that person’s freedom of association with like-minded individuals. I will discuss these three arguments in a follow-up post. Ultimately, though, I am yet to be convinced that blocking someone on social media constitutes a violation of the First Amendment under any of these theories.
No question that blocking someone because they disagree with you is viewpoint discrimination. But of course viewpoint discrimination is not permissible only if 1) it is done by the government and 2) it happens in a forum that is otherwise open to the public. (In other words, I as a private individual can discriminate against any viewpoint I like. Similarly, the President need not invite people holding opposing viewpoints to his Cabinet meeting.) Assuming that tweets by politicians are governmental actions (which in and of itself is not always a clear-cut case), the question then is whether Twitter or other social-media platforms are a public forum such as a street, a park, etc. That proposition seems highly dubious.
In order to qualify as “public forum” the government must be the one that owns or at least controls the space. Thus public streets and parks are public fora. Outright ownership, of course, is not required. The government may be a lessee from a private landlord, but have sufficient control over the space to have it treated as if it were an owner. But Twitter is not government owned or controlled. Rather, it is a private platform, controlled by Twitter itself.
In a traditional public forum, an individual has a right to engage in whatever outrageous or vile speech he wishes. Should he choose to march down the street, in a heavily Jewish neighborhood while clad in a Nazi uniform, he can. If someone wishes to carry signs down Pennsylvania Avenue advocating genocide of one group or another, they cannot be prohibited from doing so. But if someone tweets the same sign or uses a Nazi swastika as their avatar they would likely be banned by Twitter in very short order. So whereas all viewpoints, no matter how odious, have to be permitted in a public forum, the same simply doesn’t hold true for social media. That alone suggests that the control over who gets to talk is exercised not by the government but by the corporate entity.
The politicians themselves are subject to the same rules. Indeed, there have been numerouscallsfor Twitter to ban President Trump and other politicians both in the United States and abroad. Twitter has rejected these calls, but not because it is powerless to do so, but based on their own judgment as to what is in the company’s and the country’s interest. But if Twitter were to ban a particular politician, there is little that he could do beyond bringing social pressure. In fact, Twitter has done just that when it rejected certain campaign materials that a Tennessee Senate candidate attempted to distribute. (After social pressure, the company reversed course.) It is true, of course, that private companies are not constrained by the Constitution and therefore can often do things that the government may not. But that is somewhat beside the point in this case. The preliminary issue is not whether the ban is a governmental action (it very well may be), but whether Twitter is a public forum. And it appears that unlike in a public forum where views of whatever kind can be expressed, Twitter puts significant constraints on both the content and the viewpoint of speakers. In other words, someone using Twitter has no expectation of complete freedom to say what he likes, whereas someone using a street corner does.
To me, it appears that Twitter is more like a radio call-in show that is hosting a government official as a guest. The show may be freely available to any member of the public, but someone who calls in will likely be screened and if necessary disconnected whenever in the opinion of the radio station or the guest their comments are unhelpful to the conversation. Whether the radio controls are monitored by private employees or by White House communication director or both is irrelevant since no one calling into the show reasonably expects to have untrammeled ability to express whatever viewpoints they would like. Twitter is no different. Neither is a public forum even as both are designed to permit an unlimited number of individuals to have access to the information being shared.
Furthermore, much like on a call-in radio show, there are at least two speakers involved — the government official and the person attempting to respond (whether with praise or criticism). If the government official is unable to exercise some control over what speech is intermixed with his own speech, the effectiveness of his speech will be diminished. If a politician is holding a rally in a park (a traditional public forum), it doesn’t follow that he must permit critics to share the stage with him. Such a sharing would sap the message the politician is trying to deliver of its effectiveness. That is true even if the politician is already sharing a stage with like-minded individuals who help him amplify his own message. Similarly, allowing people to critically sub-tweet on your account has a potential effect of diluting the message you are trying to get out there, while allowing people to sub-tweet in agreement with the original message, amplifies it. The bottom line is, even if Twitter were a public forum, it doesn’t follow that anyone has to share their corner of that forum with anyone else. It would be a different matter if President Trump managed to convince Twitter’s CEO to ban individuals critical of the President from the platform altogether. But it’s hard for me to see how the First Amendment requires anyone (including the President) to promote speech that they disagree with.
1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.
Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)
2017—A sharply divided limited en banc panel of the Ninth Circuit rules (in U.S. v. Sanchez-Gomez) in favor of four criminal defendants who challenged a court’s policy of routinely having pretrial detainees shackled for pretrial proceedings. In his six-judge majority opinion, Judge Alex Kozinski concludes that the challenges are not moot even though the defendants’ cases have ended because the defendants were seeking “class-like relief” in a “functional class action.” The majority opinion further holds that the court’s policy violates the Fifth Amendment.
In her five-judge dissent, Judge Sandra Ikuta complains that majority “ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution.”
Less than a year later, a unanimous Supreme Court will agree with Ikuta that the case should have been dismissed on grounds of mootness. Even the defendants who brought the challenge decline to defend the Ninth Circuit’s reasoning.
Yesterday, a three-judge panel of the Sixth Circuit Court of Appeals ruled 2-1 that the presence of the national motto “In God We Trust” on U.S. coins and bills does not violate the Constitution or the Religious Freedom Restoration Act. Good news, right?
Actually, not really. The two-judge majority reached the right result, but in a terribly wrong way. If left as it is, the decision in New Doe Child #1 v. Congress of the United States will have negative effects on religious people in the Sixth Circuit — which covers the states of Kentucky, Michigan, Ohio, and Tennessee — for many years to come. That is a result that the full Sixth Circuit should not let stand.
Some background is in order. The Sixth Circuit panel was considering a challenge to the placement of the words of our national motto, “In God We Trust,” on United States currency. The atheist and humanist plaintiffs argued that the motto violates a number of constitutional provisions and also that it constituted a “substantial burden on their religious exercise” in violation of the Religious Freedom Restoration Act (“RFRA”). The atheists are led by Michael Newdow, a lawyer who has brought constitutional challenges to many different references to God in public life that offend his sensitivities, including the words “under God” in the Pledge of Allegiance and “So help me God” at the end of the presidential inaugural oath. Along the way he has sued all three branches of government, including the United States Congress, Presidents George W. Bush and Barack Obama, and Chief Justice Roberts.
In yesterday’s decision, the two-judge majority affirmed the trial court’s dismissal of Newdow’s complaint, which is the correct outcome: There’s nothing wrong, constitutionally or otherwise, with the national motto. (The dissenting judge would have ruled that “In God We Trust” has to be taken off the currency.) But in reaching its result, the two-judge majority damaged RFRA and constitutional precedent in the Sixth Circuit. Worse still, it opened up the federal courts to a new category of claims: “religious exercise” claims brought by atheist militants with an ax to grind.
The first problem was the damage done to the RFRA standard in the Sixth Circuit. The two-judge majority held that Newdow’s clients did not sufficiently allege a substantial burden because the plaintiffs failed to claim that they had “no feasible alternative” to using physical currency that includes words offensive to them. Thus, their purported inability to use cash was a “mere inconvenience” of the kind that did not constitute a substantial burden. But this newly-invented “no feasible alternative” standard would allow government defendants to argue that a religious believer suffers only “mere inconvenience” any time her religious practice is not entirely foreclosed by government regulations. It is not hard to imagine how this standard — a revival of Michigan Catholic Conference v. Burwell, which was vacated and remanded by the Supreme Court — would harm religious believers navigating dense regulations, government bureaucracy, or roadblocks put up by a hostile local government.
The second problem is that the two-judge majority opened up a path for anti-religious groups to abuse RFRA and the Religion Clauses of the First Amendment. As Becket pointed out in its amicus brief, under longstanding Supreme Court precedent, philosophical objections are fundamentally different from religious objections. Here, since the atheist and humanist plaintiffs expressly base their claims on the absence of any religious belief, they cannot bring a claim under the Religious Freedom Restoration Act or the Religion Clauses. The law does not protect philosophies, however earnestly held, but religions. Indeed, in Wisconsin v. Yoder the Supreme Court held that the distinction between religion and philosophy is required by “the very concept of ordered liberty[.]”
But the two-judge majority wrongly conflated the plaintiffs’ philosophical reactions to someone else’s religious beliefs — namely, a belief in God — with actual religious beliefs. The two-judge majority was also wrong to hold that making the religion-philosophy distinction would violate the Establishment Clause. Although it may sometimes be, as the Supreme Court acknowledged in Yoder, a “delicate” task, it does not require the government to parse religious doctrine, only to take the plaintiffs at their word when they say they reject all religious belief.
Perhaps the worst problem with the two-judge majority’s decision is that it will unleash a flood of anti-religion RFRA and Religion Clause litigation upon the federal courts. If a group like Freedom from Religion Foundation can bring a RFRA or Free Exercise Clause claim simply because it thinks all religion is false, then it has a general license to sue. And that would debase the currency of religious liberty.
So what can be done to clean up this mess? The en banc Sixth Circuit has been known to sua sponte rehear panel cases in order to clarify sensitive areas of First Amendment law. For example, last year the en banc court sua sponte vacated a panel opinion in Bormuth v. County of Jackson in an Establishment Clause challenge to legislative prayer and reheard the case. The New Doe Child ruling now presents an opportunity for the Sixth Circuit to nip bad RFRA and Free Exercise Clause doctrine in the bud, much as it took on Bormuth to clarify the Establishment Clause. But if the full Court does not act here, then further RFRA and constitutional challenges based on philosophical disagreements, rather than religious practices, will become the norm in the Sixth Circuit. And that would be a shame.
When I first encountered federal district judge Arenda L. Wright Allen some four years ago, she was racing to bar the state of Virginia from enforcing its marriage laws. Just last week, she burst past other obstacles to issue a ruling in favor of Gavin Grimm in Grimm’s lawsuit against the Gloucester County School Board’s bathroom policies.
Grimm, now 18 and living in Berkeley, California, is a young woman who identifies as male (a “transgender man,” in newspeak). As you might recall, back in 2016, Grimm, then using the pseudonym G.G., won a badly confused Fourth Circuit ruling that required her high school to allow her to use the boys’ restrooms (rather than the girls’ restrooms or the single-stall restrooms that were made available to her). Last year, the Supreme Court, without any recorded dissent, vacated the Fourth Circuit’s judgment and remanded the case “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.”
On remand, Grimm had the remarkable good luck of having the case transferred from Judge Robert G. Doumar (who had ruled for the school district on the first go-round) to Judge Wright Allen. Wright Allen has avidly seized the opportunity. Let’s take a look at her ruling denying the school district’s motion to dismiss Grimm’s complaint:
1. Wright Allen embraces the transgender ideology in her statement of the facts. We are told, for example, that “Mr. Grimm is an eighteen-year-old man,” that “When Mr. Grimm was born, hospital staff identified him as female,” and that “Mr. Grimm has known from a young age that he has a male gender identity.”
2. Despite the Supreme Court’s direction that the case be remanded “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017,” Wright Allen gives no consideration to that guidance document.
3. As Wright Allen notes, a motion to dismiss merely tests the sufficiency of a complaint, so the judge, for purposes of deciding the motion, assumes that the allegations in the complaint are true and draws all reasonable inferences in favor of the plaintiff. In other words, it would be one thing to deny the school board’s motion to dismiss and quite another to grant summary judgment in favor of Grimm.
Wright Allen purports merely to have denied the school board’s motion to dismiss, but her flawed legal determinations on all sorts of matters effectively guarantee a victory in the case to Grimm.
Wright Allen rules that a claim of discrimination on the basis of transgender status is a claim of sex discrimination, and specifically of “gender stereotyping,” actionable under Title IX. But she never slows down to realize that assigning bathrooms by sex does not discriminate on the basis of transgender status and is not gender stereotyping. It is Grimm who wanted* the high school to discriminate on the basis of gender identity—to have girls who identify as male use the boys’ restrooms. It is the school board’s policy that declines to take into account (declines to discriminate on the basis of) gender identity. It is Grimm who wanted the high school to engage in gender stereotyping—to treat a girl who identifies as male as though she were male. Indeed, it is the transgender ideology that is built on stilts of gender stereotypes, on the bizarre notion—to quote an architect of the Obama administration’s policy—that women who “live, work and study as men” (whatever those sexist notions might mean) therefore are men. It is the school board’s policy that doesn’t engage in gender stereotyping but instead assigns restrooms based on sex.
Addressing Grimm’s Equal Protection Clause claim, Wright Allen also uses the motion to dismiss as the occasion to rule that classifications based on transgender status must be subjected to intermediate scrutiny and to disparage as “hollow” the board’s concern about the privacy rights of students. Again, Wright Allen never pauses to recognize that the board’s policy is based on sex, not on transgender status.
4. Because Wright Allen’s ruling is nominally only a denial of the school district’s motion to dismiss, the school district may pursue an interlocutory appeal only with Wright Allen’s permission. Perhaps I’m mistaken, but Wright Allen seems eager to ensure that the school district never pursues an appeal. That presumably is why, at the same time she has gone out of her way to make clear that she would deliver a victory to Grimm, she closes her ruling by directing the parties to schedule a settlement conference. If the school district, seeing no hope, ends up settling, it will forfeit its rights to appeal.
* Having graduated from high school last year, Grimm is no longer subject to the school board’s policy and has abandoned her claim for injunctive relief. In December 2017, Wright Allen ruled that Grimm’s claims for nominal damages and for “retrospective declaratory relief” mean that her case is not moot.
In case anyone thought that there weren’t already enough groups on the Left engaged in judicial-confirmation battles, a new group calling itself Demand Justice has recently come into existence. According to this New York Times article, Demand Justice has been “formed by veterans of Capitol Hill, the White House and the Clinton and Obama campaigns” and “hopes to become a permanent fixture motivating progressive voters on issues related to the federal judiciary.”
Alas, if this early foray by Demand Justice—an online ad against federal district nominee Thomas Farr—is any indication, Demand Justice has determined that smearing judicial nominees is the best way to motivate progressive voters. The ad presents President Trump’s nomination of Farr as evidence that “hate is on the march” and urges viewers to call their senators “and tell them to stand up to hate.”
As I’ve noted before, in response to a related attack, the American Bar Association’s judicial-evaluations committee, after an extensive investigation into Farr’s qualifications, awarded him a unanimous “well qualified” rating. According to the ABA Backgrounder, that rating means that the ABA committee determined (among other things) that Farr has the “highest reputation for integrity” and “demonstrate[s] the capacity for sound judicial temperament,” including “freedom from bias and commitment to equal justice under the law.”
In the face of this unanimous “well qualified” rating by the ABA, consider the flimsy claims that Demand Justice makes against Farr:
1. Demand Justice asserts that “Farr helped draft a voting law that a federal court said ‘targeted African Americans with almost surgical precision.’”
For starters, Farr advised the North Carolina House of Representatives, not the North Carolina Senate. The House proposal addressed only photo ID and was loose enough to allow a college ID to serve as a photo ID. The omnibus bill that became law came from the Senate and combined a stricter photo-ID measure with various other changes, including eliminating same-day registration and out-of-precinct voting and reducing the days for early voting. Farr had no role in drafting the Senate legislation.
Farr, I’ll note, was later retained by the state legislature to defend the challenged law. A Fourth Circuit panel, consisting entirely of Democratic appointees, did state that the law (which, again, Farr did not help draft) “targeted African Americans with almost surgical precision.” But that statement is an obviously hyperbolic version of the panel’s more modest conclusion that the legislation “disproportionately affected African Americans.” Further, lest one imagine that no reasonable minds could differ on the compliance of the North Carolina law with the Constitution and federal statutes, I’ll point out that the district judge (a Republican appointee) rejected the challenges to the law. In any event, Demand Justice evidently recognizes that it can’t fairly fault Farr for representing his clients in court; that presumably is why it has accused him—falsely—of having helped to draft the law.
2. Demand Justice asserts that “Farr even gave a speech in honor of the director of a hate group that funded studies claiming blacks are genetically inferior to whites.”
Let’s look at what underlies this.
In October 2007, Hillsdale College presented Farr’s longtime senior law partner Tom Ellis with its Freedom Leadership Award. Ellis, then 87 years old, was a prominent conservative leader in North Carolina and an important early supporter of Ronald Reagan’s candidacy for president. Farr, who was an alumnus of Hillsdale, was asked to serve as the master of ceremonies for the event. Hillsdale’s president Larry Arnn gave the principal speech. In his role as emcee, Farr offered some general praise of his own. Numerous federal and state judges attended the event.
Some decades earlier,* Ellis had been a director of a group called the Pioneer Fund, which had indeed funded controversial eugenics studies. In response to written post-hearing questions, Farr has testified that he has “never had any relationship of any kind” with the Pioneer Fund.
In short, Farr made remarks at a Hillsdale College event honoring his longtime senior law partner for his conservative leadership. There is zero reason to believe that Hillsdale College honored Ellis, or that Farr praised Ellis, because of his decades-earlier involvement with the Pioneer Fund.
3. Demand Justice asserts that “Civil rights leaders call Farr ‘an advocate for… segregationist causes.’” Demand Justice is quoting from Rev. Dr. William Barber, II’s letter to the Judiciary Committee. Parroting someone else’s claims does not make them true. (I have already addressed in this post and my earlier one the lead falsehoods in Barber’s letter.)
* This article refers to Ellis as a “former board member of the Pioneer Fund” in 1985. I don’t know at what earlier date his board membership ended.
Dear Reader (And members of the Remnant everywhere),
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