Law & the Courts

This Day in Liberal Judicial Activism—February 7

Members of the Senate Judiciary Committee at Judge Gorsuch’s confirmation hearing. (Reuters photo: Jonathan Ernst)

2017—In his desperate effort to obstruct the Supreme Court nomination of Neil Gorsuch, Senate minority leader Chuck Schumer continues to propagate the myth that a 60-vote standard exists for Supreme Court nominees. Never mind that even the Washington Post’s Fact Checker has explained that no such standard exists.

Meanwhile, Democratic senator Jeanne Shaheen declares on the Senate floor that neither she nor any of her fellow Democrats she’s talked to have any intention of filibustering the Gorsuch nomination.

Two months later, Shaheen and 43 of her fellow Democrats will vote to filibuster the Gorsuch nomination. But the Schumer-led gambit will backfire spectacularly, as Senate Republicans, following the precedent Democratic leader Harry Reid set in November 2013 on lower-court judicial nominations and executive-branch nominations, will proceed to abolish the filibuster for Supreme Court nominations.

Law & the Courts

This Day in Liberal Judicial Activism—February 6

H. Lee Sarokin

1992—Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers (Haines v. Liggett Group), New Jersey federal district judge H. Lee Sarokin declares that “the tobacco industry may be the king of concealment and disinformation” and charges 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 rules that the crime-fraud exception to the attorney-client privilege applies and orders the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he quotes extensively from the very documents as to which privilege had been asserted.

A unanimous Third Circuit panel later grants an extraordinary writ vacating Sarokin’s discovery order and also removing Sarokin from the case. The Third Circuit lambastes Sarokin for a “judicial usurpation of power,” for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted, and for destroying any appearance of impartiality. Sarokin, in reply, brazenly alleges that the Third Circuit panel failed to exercise independent legal judgment and instead did the bidding of a “powerful litigant.”

In the face of these and other judicial misdeeds, President Clinton will appoint Sarokin to the Third Circuit in 1994. The ABA gives Sarokin its highest “well qualified” rating. Senate Democrats hail Sarokin as an ideal judge. Senator Leahy, for example, calls him “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

Law & the Courts

This Day in Liberal Judicial Activism—February 5

President Obama and Sonia Sotomayor in 2009 (Jewel Samad/AFP/Getty)

1996—In a muddled speech on the “majesty of the law” at Suffolk University law school, then-district judge Sonia Sotomayor complains that “the public fails to appreciate the importance of indefiniteness in the law”—indefiniteness that sometimes results from the fact that “a given judge (or judges) may develop a novel approach to a specific set of facts or legal framework that pushes the law in a new direction.”

Somehow Sotomayor doesn’t see fit even to question whether, and under what circumstances, it’s proper or desirable for judges to “develop a novel approach” that “pushes the law in a new direction.” Instead, she complains about “recurring public criticism about the judicial process.” The fact that Sotomayor cites as her lead example of unwelcome “public criticism” an article “describing Senator Dole’s criticism of [the] liberal ideology of Clinton judicial appointments and [of the] American Bar Association” lends credence to the suspicion that Sotomayor is less interested in the majesty of the law than in the majesty of liberal activist judges.

Law & the Courts

Severino v. Biden and the Unitary Executive


On the same day we announced the excellent news that Roger Severino, the outstanding former Director of HHS’s Office for Civil Rights, has joined my team of colleagues at the Ethics and Public Policy Center, Roger filed a lawsuit against President Biden to thwart Biden’s effort to remove Roger from his position on the Council of the Administrative Conference of the United States. ACUS is an independent agency of the federal government that is charged with promoting improvements in how federal agencies operate.

Short version: Roger was recently appointed to a three-year term. The governing statute does not confer on the president any power to remove members of the ACUS Council. Biden does not have the constitutional power to do so under existing case law, including the Supreme Court’s 1935 ruling in Humphrey’s Executor v. United States that proponents of the unitary executive vigorously contest.

My initial take is that this case looks like a no-lose proposition from my perspective: Either Roger wins and retains his position on the ACUS Council, or Humphrey’s Executor ends up getting overruled. My guess is that the White House will cave.

Law & the Courts

On Biden’s Booting ABA from Pre-Nomination Review of Judicial Picks


As Jonathan Adler noted yesterday, President Biden has decided to exclude the American Bar Assocation’s Standing Committee on the Federal Judiciary from its accustomed role in Democratic administrations of reviewing and rating proposed judicial picks before the White House makes the formal nominations. His decision has received praise from progressives who (as this Bloomberg article puts it) see it “as an important step in diversifying the bench.”

Some context and observations:

1. When he was chairman of the Senate Judiciary Committee, Biden declared with respect to the ABA’s evaluation of judicial nominees that he “look[ed] at no other recommendation more closely,” that he “value[d] no other recommendation more highly.” (P. 406 of Breyer hearing transcript.) Not so much anymore, evidently.

2. President George W. Bush was the first president to exclude the ABA from the pre-nomination process. His decision to do so in March 2001 elicited widespread criticism: “The ABA denounced the decision,” and Democratic senator Chuck Schumer “predicted ‘a big mess’ if candidates receive low ratings from the ABA after their names have been made public.” Senators Leahy and Schumer hailed the ABA rating as the “gold standard by which judicial candidates are judged” and complained that Bush’s action would “dilute the quality of the federal bench.”  A Delaware Law Weekly article from the time bears the title “Biden Blasts Bush For Excluding ABA From Judicial Nominating Process.”

When Barack Obama became president in 2009, he restored the ABA to its pre-nomination role. In a house editorial on Obama’s decision, the New York Times emphasized the “real value in having knowledgeable lawyers who have firsthand experience with the justice system vetting prospective judges” (even as it expressed—get this!—concern that the ABA committee had “been cowed by conservative critics in recent years into approving less-than-qualified nominees”).

In 2017, Donald Trump again excluded the ABA from the pre-nomination process.

3. The progressive praise for Biden’s decision is shaped by the Obama White House’s unhappiness with negative ABA ratings. As the New York Times reported in November 2011 (just under three years into Obama’s first term):

The American Bar Association has secretly declared a significant number of President Obama’s potential judicial nominees “not qualified,” slowing White House efforts to fill vacant judgeships — and nearly all of the prospects given poor ratings were women or members of a minority group, according to interviews.

The White House has chosen not to nominate any person the bar association deemed unqualified, so their identities and negative ratings have not been made public. But the association’s judicial vetting committee has opposed 14 of the roughly 185 potential nominees the administration asked it to evaluate, according to a person familiar with the matter.

The number of Obama prospects deemed “not qualified” already exceeds the total number opposed by the group during the eight-year administrations of Presidents Bill Clinton and George W. Bush; the rejection rate is more than three and a half times as high as it was under either of the previous two presidencies, documents and interviews show.

4. The decision whether or not to allow the ABA to do its evaluations pre-nomination involves some often-overlooked trade-offs.

A White House that consults with the ABA pre-nomination is able, if it wishes, to avoid the political downside of selecting a judicial nominee whom the ABA rates Not Qualified. It can also “work the ref”—look for ways to induce the ABA to raise unsatisfactory ratings. That same NYT article points out that the ABA upgraded two nominees from Not Qualified to Qualified “after the [Obama] White House asked it to take a second look.”

Imagine if the Obama White House had instead excluded the ABA from the pre-nomination process. Would it have been better off if it had gone ahead and made the fourteen (or, given the two upgrades, sixteen) nominations that would have ended up being rated Not Qualified by the ABA?

On the one hand, the Obama White House might have faced some political embarrassment. Obama’s total for a period of less than three years would have exceeded the number of nominations by President Trump (ten, by my quick count) that received a Not Qualified rating over his full four-year term. It’s doubtful, though, that the media would have given Obama’s nominees with Not Qualified ratings the disproportionate attention it gave Trump’s.

On the other hand, most or all of those nominations would probably have been confirmed by the Democrat-controlled Senate.

5. In praising Biden’s decision as “an important step in diversifying the bench,” progressives apparently anticipate that Biden’s “diverse” nominees are more likely than non-diverse nominees to receive Not Qualified ratings from the ABA—in short, that they are more likely to be found to lack the professional qualifications that the ABA has deemed to be important in judges. But is there something wrong with the ABA’s criteria? If not, is there serious evidence that the ABA applies those criteria unfairly against diverse nominees?

6. Look for progressives to push many candidates who risk receiving Not Qualified ratings from the ABA. But don’t expect Schumer, Leahy, or other Democrats to make a “big mess” if that happens or to praise the ABA rating as the “gold standard.”

Law & the Courts

This Day in Liberal Judicial Activism—February 4

Marriage wedding rings

2004—Asked by the state senate whether its November 2003 ruling in Goodridge v. Department of Public Health really imposes same-sex marriage, the Massachusetts supreme court answers yes (by the same 4-3 split as in its original ruling).

2005—In Hernandez v. Robles, a New York state trial judge rules that New York’s longstanding statutory definition of marriage as the union of a man and a woman violates the state constitution. In July 2006, New York’s highest court, by a 4-2 vote, will reverse this ruling.

2016—A divided Ninth Circuit panel rules, in Smith v. Schriro, that Robert Douglas Smith was intellectually disabled when he committed acts of kidnapping, sexual assault, and murder in 1980. In the opening paragraph of her dissent from Judge Stephen Reinhardt’s lead opinion, Judge Consuelo Callahan observes (emphasis added):

“The one thing everyone appears to agree on is that Smith is not intellectually disabled. When tested in 2005 the experts found that he had an IQ of between 87 and 93, well within the low-average to average range of intellectual ability. Yet despite this fact, the majority reverses because it is certain that Smith was intellectually disabled in 1980 when he murdered Sandy Owen. The majority reaches this conclusion by disregarding the findings of the state courts, denying those courts the deference they are due, and expressing supreme confidence in its own ability to detect past intellectual disability despite substantial conflicting evidence and the fact that Smith is not now intellectually disabled. Accordingly, I dissent.”

Law & the Courts

Ninth Circuit Panel Splits on What Constitutes Illegal Reentry


In a Ninth Circuit decision today in Tomcyzk v. Wilkinson, a three-judge panel split on the seemingly elementary question whether an alien has “reentered the United States illegally” when he was inadmissible at the time of his reentry.

In his majority opinion (joined by Judge Paul Watford), Judge William Fletcher concludes that illegal reentry under the statutory provision in question—8 U.S.C. § 1231(a)(5)—“requires more than mere status of inadmissibility” and instead depends, in some indeterminate way, “on the manner and circumstances of the entry.” “For example,” Fletcher states, “a noncitizen who sneaks across the border or deceives an immigration officer violates § 1325” and is subject to criminal and civil penalties.

Gary Tomczyk, the petitioner challenging a removal order, is a citizen of Canada who had been deported from the United States in 1990. Roughly a year later, he succeeded in reentering the United States by telling the border officer that he and his friends were visiting the U.S. “for beers.” In Fletcher’s view, “assuming the truth of this representation” (a matter that can be addressed on remand), Tomczyk did not reenter illegally even though he was inadmissible.

Judge Jay Bybee, in dissent, argues that an alien’s status as inadmissible renders his reentry illegal and that the government need not “prove some corrupt act in addition to the alien’s inadmissible status.” He further argues that the majority’s position is inconsistent with circuit precedent and creates a conflict with Tenth Circuit law.

Bybee points out that the alien in one of the previous Ninth Circuit cases (Tellez v. Lynch) “dressed up in a nice pretty dress and smiled at the immigration officer from the passenger seat of a car.” In response to her argument that she did not reenter illegally “because she presented herself at the border and was waved through without question,” the panel stated:

There’s no question that Tellez lacked valid documentation and intended to dupe border officials into letting her enter: Just a week before her successful entry, she signed a document acknowledging that she was prohibited from entering the country for five years. A pretty dress and charming smile are not substitutes for a visa. Her reentry was illegal.

Is Fletcher really going to count a “pretty dress and charming smile” as means of deception that render an otherwise legal reentry illegal? If so, future Ninth Circuit panels may be spending a lot of time fleshing out what “manner and circumstances” (beyond an alien’s inadmissibility) render an alien’s reentry illegal. If not, his ruling seems impossible to reconcile with Tellez.

Law & the Courts

Biden Keeps ABA out of White House Judicial-Vetting Process


The number of vacancies on the federal bench continues to climb, presenting President Biden with an opportunity to put his stamp on the federal courts. Over 25 judges have taken senior status or announced their attention to do so since the start of the year, and more are on their way.

Interestingly enough, the Biden administration has decided that the American Bar Association will not provide its evaluation of potential nominees before they are nominated, as has been common in Democratic administrations (and Republican administrations prior to President George W. Bush). The Washington Post reports:

The new administration will take a page from the Trump White House and speed up the process by forgoing the American Bar Association review of candidates in advance of formal nominations. . . .

Unlike in the Obama administration, the Biden White House will not review potential nominees in advance through the bar association. The new administration will consult with the ABA, among others, but the rating of candidates will come after the formal nomination, according to a Biden official who spoke on the condition of anonymity to discuss the internal process for nominations.

As reported, the reason for this move is to accelerate the process. The ABA vetting process takes time, and can delay nominations. It also may affect the range of nominees the Biden White House puts forward. The Obama administration scuttled several potential judicial nominations when the ABA returned “not qualified” ratings. Sometimes this meant the White House did not go forward with a nominee it really wanted. And sometimes this meant the White House was able to scuttle a potential nominee pushed by progressive activist groups. So we will see how this shift affects whom President Biden ultimately nominates.

Law & the Courts

This Day in Liberal Judicial Activism—February 3

Supreme Court Justice Anthony Kennedy (Joshua Roberts/Reuters)

1988—By a vote of 97-0, the Senate confirms President Reagan’s nomination of Ninth Circuit judge Anthony M. Kennedy to fill the seat of retiring Justice Lewis Powell. Kennedy was Reagan’s third pick, following the October 1987 defeat of the nomination of Judge Robert Bork and the withdrawal of the subsequent decision to nominate Judge Douglas Ginsburg. Kennedy will sit on the Court for the next thirty years, until his retirement in 2018.

Often misdescribed as a “moderate conservative,” Kennedy in fact embraced an aggressive view of judicial power. While he sometimes deployed that power towards conservative ends, his misdeeds of liberal judicial activism were far more momentous—and were often masked by grandiose rhetorical diversions. To cite but a few examples:

“At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Planned Parenthood v. Casey (1992). Translation: We justices have the unbounded authority to decide which matters you yahoo citizens should be prohibited from addressing through legislation.

“It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom.” Roper v. Simmons (2005). As Justice Scalia responds, Kennedy relies on foreign sources “not to underscore our ‘fidelity’ to the Constitution, our ‘pride in its origins,’ and ‘our own [American] heritage,’” but to override the “centuries-old American practice … of letting a jury of 12 citizens decide whether, in the particular case, youth should be the basis for withholding the death penalty.”

“The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.” So begins Justice Kennedy’s majority opinion in Obergefell v. Hodges (2015), inventing a constitutional right to same-sex marriage. Quoting this passage, Justice Scalia laments that the Supreme Court “has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”

“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Lawrence v. Texas (2003). Translation: We modern justices are so much wiser than the Framers and therefore entitled to trump the political processes willy-nilly.

“The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.” Ashcroft v. Free Speech Coalition (2002) (emphasis added). It’s odd that Kennedy would think that speech (including opinion-writing?) should precede thinking. The notion is especially odd in a case concerning virtual child pornography.

2010In Perry v. Schwarzenegger—the case challenging California’s Proposition 8 and traditional marriage—the ACLU Foundation of Southern California continues its involvement in the case by filing a post-trial amicus brief on behalf of its national affiliate, the American Civil Liberties Union.

Ramona Ripston, the wife of Ninth Circuit judge Stephen Reinhardt, is the executive director of the ACLU Foundation of Southern California and (per its website) is “responsible for all phases of the organization’s programs, including litigation.” In addition to leading the political opposition to Proposition 8, Ripston engaged in confidential discussions with the lawyers for the Perry plaintiffs about whether they should file the case. And months later, she will publicly celebrate Judge Vaughn Walker’s decision striking down Proposition 8.

Yet when the wonders of not-random-after-all selection assign arch-activist Reinhardt to the Ninth Circuit panel to review Walker’s decision in this very case, Reinhardt somehow will decline to recuse himself. He will instead end up writing the majority opinion in support of (and providing the decisive vote for) a divided-panel holding affirming Walker’s ruling.

Law & the Courts

En Banc Seventh Circuit to Hear an Important Church Autonomy Case in Demkovich v. St. Andrew the Apostle Parish

(Abubaker Lubowa/Reuters)

Can a former parish music director sue the Archdiocese of Chicago for a parish priest’s supposedly “offensive” speech about plaintiff’s sexuality and other matters? Or does the First Amendment’s ministerial exception — which protects religious autonomy by barring secular authorities from interfering in a church’s selection and supervision of ministers — preclude this type of “hostile work environment” claim? On February 9, the en banc Seventh Circuit is poised to consider this important issue of religious liberty, in Demkovich v. St. Andrew the Apostle Parish.

The Supreme Court unanimously recognized the ministerial exception in 2012 in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. Last year, in Our Lady of Guadalupe v. Morrissey-Berru, the Court held 7–2 that the exception applied to two lay parish school teachers, reaffirming that “a church’s independence on matters ‘of faith and doctrine’ requires the authority to select, supervise, and if necessary, remove” this type of key religious employee “without interference by secular authorities.”

In Demkovich, the question is not “who” but “what.” The plaintiff concedes the ministerial exception applies because he was a minister of the church, and his case was previously dismissed because his suit contested termination. So he repackaged the allegations to claim a “hostile work environment” based on allegedly offensive remarks by the priest who supervised him. He contends that the First Amendment does not bar this claim, because he says that allowing the church to be sued for a “hostile work environment” will not interfere with religious autonomy.

A divided Seventh Circuit panel agreed, holding 2–1 that the ministerial exception bars discrimination claims only if they involve “tangible” employment decisions such as the hiring or firing of religious personnel, not “intangible” employment actions such as those that create a hostile work environment. Judge Joel Flaum dissented, explaining that under the Supreme Court’s decisions in Hosanna-Tabor and Our Lady, the ministerial exception must bar hostile-work-environment claims because “The Church’s First Amendment right to select and control its ministers includes the ability to supervise, manage, and communicate with them free from government interference.” The Becket Fund for Religious Liberty filed a petition for rehearing en banc on behalf of the Archdiocese, warning that the panel’s decision, if left in place, would eviscerate the ministerial exception by allowing ministers to simply repackage barred discrimination claims as hostile-work-environment claims. The Seventh Circuit granted rehearing en banc, vacating the panel’s decision.

At the petition for rehearing en banc stage, we filed an amicus brief on behalf of a group of religious-liberty scholars explaining that while abusive actions committed against a minister could in some instances be pursued by ordinary tort claims, the First Amendment should bar claims of discriminatory hostile work environments. This is because such Title VII claims differ from ordinary tort claims in two important respects. First, unlike ordinary tort claims, hostile-work-environment claims often require courts to probe the subjective motivation behind the alleged mistreatment of ministerial employees to determine whether the alleged wrongdoer acted with a discriminatory intent. Second, hostile-work-environment claims typically arise out of allegedly offensive speech rather than objectively harmful conduct.

Amici on the other side disagree. For example, Lambda Legal filed a brief arguing that certain tort claims, such as intentional infliction of emotional distress, are like hostile-work-environment claims because they involve subjective inquiries into the offender’s state of mind and, oftentimes, pure speech. But that misses the point for two reasons.

First, it would be a mistake to conclude that the ministerial exception never applies to any tort or contract claim. In Hosanna-Tabor, the Supreme Court reserved judgment on the issues. And in Lee v. Sixth Mt. Zion Baptist Church, where we filed an amicus brief supporting the church, the Third Circuit agreed that the ministerial exception bars certain breach of employment contract claims. Many courts before Hosanna-Tabor also took the same view. But because no tort or contract claims have been raised in Demkovich, the en banc Seventh Circuit need not resolve these issues. It may, like the Supreme Court in Hosanna-Tabor, decide to leave them for another day.

That said, the principles of religious autonomy set forth in Hosanna-Tabor and Our Lady certainly support applying the ministerial exception to some tort and contract claims that would infringe on the First Amendment. For example, if the minister in Demkovich had sought relief for intentional infliction of emotional distress based purely on the same allegedly offensive speech that gave rise to his hostile-work-environment claims, that tort claim should be barred by the ministerial exception for the same reasons his discrimination claim is barred: It would intrude on the Archdiocese’s religious autonomy by inviting civil courts to police how the church communicates with its ministers. Put another way, the First Amendment does not allow courts to adjudicate a claim brought by a bishop against his cardinal for expressing church teaching in a manner that the bishop (or a jury) might deem offensive — regardless of whether such a claim is based in tort or discrimination law.

Second, contrary to the suggestion made in another amicus brief, we do not argue that the “ministerial exception generally bar[s] any consideration of a religious actor’s mindset.” Rather, we contend that the First Amendment bars judicial scrutiny of whether the motivations or reasons behind a church’s interactions with its ministers are “legitimate” or “discriminatory.” That inquiry arises in many claims alleging a discriminatory hostile work environment, but is absent from most (if not all) tort claims. Of course, all intentional torts require that the defendant’s conduct be intentional as opposed to accidental, and some intentional torts (such as intentional infliction of emotional distress) require that the conduct be committed with a specific intent to cause harm. But in many hostile-environment cases, the claim turns not only on whether the act or the harm was intentional, but also why the defendant acted in the first place — i.e., whether the underlying motive was discriminatory or legitimate. And this intrusive inquiry requires courts and juries to analyze whether the discriminatory motive permeated the entire church-workplace “environment.” As our brief explains, this latter inquiry raises First Amendment concerns because it invites judicial scrutiny of a church’s proffered justifications for how it treats its key religious personnel. In Hosanna-Tabor, Justices Alito and Kagan warned that allowing these pretext inquiries “would dangerously undermine the religious autonomy that lower court case law has now protected for nearly four decades.” Such scrutiny is not implicated in a claim of intentional infliction of emotional distress, which asks only whether the defendant intended to cause harm, not why.

In short, claims alleging a discriminatory “hostile work environment” are a species of discrimination claim similar to those the Supreme Court has already held are barred under the First Amendment because they interfere with church autonomy, at least when asserted by key religious personnel. That principle should decide the Demkovich appeal in the Seventh Circuit and should enjoy broad support at the Supreme Court if and when the issue reaches that level.

The views and opinions set forth herein are the personal views or opinions of the authors; they do not necessarily reflect the views or opinions of the law firm with which they are associated.

Victoria Dorfman, Todd Geremia, Anthony Dick, Caroline Lindsay, and Victoria Powell co-authored this post.

Law & the Courts

Collected Praise for The Essential Scalia


If you somehow haven’t yet acquired The Essential Scalia: On the Constitution, the Courts, and the Rule of Law for yourselfco-edited by Sixth Circuit judge Jeffrey S. Sutton and me, and featuring a beautiful foreword by Justice Elena Kagan—and haven’t yet given it as a gift to many of your friends and loved ones, be assured that it’s not too late.

Here’s some of the praise that The Essential Scalia has received:

Justice Kagan (from her foreword): “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.”

Judge William Pryor: “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…. Justice Scalia was playing the long game. And even if too few law professors will assign their students his best opinions as reading material, you can do your part by sharing with them this latest and perhaps most subversive collection.

Jack Goldsmith: “an extraordinary collection of Justice Scalia’s legal writings—the best introduction to his legal thought.”

Yuval Levin: “Watching [Scalia’s] mind at work is a joy,” “fantastic,” “an education in Americanism, and in the distinct and central place that the law and the Constitution have in the life of our republic.”

Bryan Garner: “The Essential Scalia … is the best one-volume compendium of the Justice’s erudition and wit. It won’t be bested.”

Paul Clement: “The book will be especially illuminating to anyone who wants to unlock the mystery of why Ginsburg admired Scalia—or who wants to get a sense of where the Supreme Court may be headed.”

John McGinnis: “essential for anyone who studies law,” “beyond its theoretical interest, The Essential Scalia is great fun because Scalia was undoubtedly the wittiest Supreme Court justice in history.”

Mark Pulliam: “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.”

Matthew Continetti: “What comes across most … is the quality of Scalia’s writing. It is clear, direct, witty, lapidary, memorable…. These aren’t [just] judicial decisions. They are essays. And like great literature they will reverberate far into the future.”

And I’ve just learned of this fine new review by Northwestern law professor Stephen B. Presser, which praises The Essential Scalia as a “laudable anthology” that “makes clear why” Justice Scalia “lives on in the hearts of Justice Barrett and his many other admirers.”

Law & the Courts

This Day in Liberal Judicial Activism—February 2

( Zolnierek/Getty Images)

2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary.

2017—Evidently unfamiliar with the humor of high-school yearbook editors, the Daily Mail and the New York Post trumpet a ridiculous claim that Supreme Court nominee Neil Gorsuch, while he was a high-school student, founded a student club named “Fascism Forever.”

2018—In Hill v. Anderson, a Sixth Circuit panel, in an opinion by Carter appointee Gilbert Merritt, rules that Danny Hill is entitled to federal habeas relief because the rulings of the Ohio courts against him in 2008 and earlier were contrary to Supreme Court precedent that was clearly established at the time of those rulings. But the Supreme Court precedent that the panel relies on most heavily is from 2017—years after the state rulings. The panel tries to cover its tracks by asserting that the Supreme Court’s 2017 ruling was “merely an application of what was clearly established by” a 2002 ruling.

Less than a year later, the Supreme Court will summarily reverse the Sixth Circuit for its “plainly improper” reliance on the 2017 ruling.

Law & the Courts

This Day in Liberal Judicial Activism—January 31

Former Associate Justice of the Supreme Court of the United States Sandra Day O’Connor.

2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire takes effect. Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise. Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency. Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases. Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations.

Law & the Courts

Judicial Seats Are Opening for President Biden to Fill

The Supreme Court building in Washington, D.C., August 29, 2020 (Andrew Kelly/Reuters)

A growing number of federal judges are electing to take senior status in the wake of President Biden’s inauguration. This will provide the Biden Administration with the opportunity to begin making an imprint on the federal courts.

Thus far in January, at least 20 judges have taken senior status or announced their intention to do so. As of January 1, there were 49 vacancies on the federal courts, and an additional five future vacancies that had been announced. As of yesterday, the Administrative Office of the U.S. Courts listed 53 vacancies and 19 announced future vacancies. In addition, there are reports of other judges, such as Judge Ursula Ungaro of the Southern District of Florida and  Judge James Gwin of the Northern District of Ohio, who are going senior but are not yet listed on U.S. Courts website. There are still others, such as Judge Gwin’s colleague, Solomon Oliver, who have acknowledged they are considering whether and when to follow suit.

Most of the current and pending vacancies are on district courts, as one would expect, but there are already five current or pending openings on  circuit courts, including two on the U.S. Court of Appeals for the Second Circuit in New York, and a seats on the U.S. Courts of Appeals for the First, Seventh, and Tenth Circuits. In addition, assuming Judge Merrick Garland is confirmed as President Biden’s Attorney General, this will open a seat on the U.S. Court of Appeals for the D.C. Circuit too.

Biden’s nominees for these vacancies are unlikely to shift the ideological balance of many courts. Most of the open or opening seats were held by Democratic appointees, though not all of them. (Judge Ungaro, for example, was appointed by President Bush in 1992 and Judge Joel Flaum of the U.S. Court of Appeals for the Seventh Circuit was appointed by President Reagan.) Yet Biden’s nominees are likely to be younger, and often more progressive, than the judges they replace, and that in itself will be significant, even if they do not alter the overall ideological valence of the courts on which they sit.

Law & the Courts

This Day in Liberal Judicial Activism—January 30

(Lucy Nicholson/REUTERS)

2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails. The Senate respects its longstanding tradition of providing an up-or-down vote on the Senate floor to Supreme Court nominees who have been reported to the full Senate.

2014—By a vote of 5-1, the Maine supreme court, purporting to reconcile two statutes, rules that a public school is required to allow a “transgender girl”—that is, a boy who identifies as a girl—to use a girls’ bathroom.

As the dissenter argues, the ruling defies “the plain language of a specific statute [that] explicitly requires segregating school bathrooms by sex.” Further, the ruling construes the Maine Human Rights Act in a way that “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex.” The majority doesn’t dispute this proposition, and one member of the majority expressly agrees with it.

In other words, under the court’s logic, men in Maine may now use any public women’s bathroom, and women in Maine may now use any public men’s bathroom. (A “public” bathroom is any bathroom in a “place of public accommodation,” such as a restaurant or store.) Indeed, even labeling a bathroom with a sign designating “Men” or “Women” violates the majority’s understanding of the MHRA.