A reader inquires what the leaked Alito draft would mean for Doev. Bolton, the companion case to Roe v. Wade that the Court decided on the same day in 1973. Justice Blackmun also wrote the majority opinion in Doe, and I daresay that it’s an even worse piece of judicial craftsmanship than Roe.
The plaintiffs in Doe challenged a recently adopted Georgia abortion law on various grounds. Among other things, they argued that an exception that allowed a physician to perform an abortion “based upon his best clinical judgment that an abortion is necessary” was unconstitutionally vague. In the course of rejecting this argument, Blackmun concluded that the statutory exception should be read to mean that the attending physician’s medical judgment of necessity “may be exercised in the light of all factors—physical, emotional, psychological, familial, and the woman’s age—relevant to the wellbeing of the patient.”
In Roe, Blackmun stated that even after viability a state must allow abortion “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” He also emphasized that Roe and Doe, “of course, are to be read together.” So Roe has been widely read to mean that the physician determining whether an abortion is “necessary” for the “health” of the mother may exercise his “medical judgment” in light of the factors that Doe sets forth. Under that reading, an abortionist has unlimited discretion to do an abortion at any time even after viability and all the way to childbirth. (In an opinion in 1998 dissenting from the denial of certiorari, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, rejected that reading of Doe, opining that it “simply did not address” what is “required as a matter of federal constitutional law.”)
In its one mention of Doe (p. 27, note 40), the Alito draft states that Doe “has been interpreted by some to protect a broad right to obtain an abortion at any stage of pregnancy provided that a physician is willing to certify that it is needed due to a woman’s “emotional” needs or “familial” concerns. The draft opinion’s statement of the various “legitimate state interests” that a law regulating abortion might serve does not suggest that any such law must include the unlimited definition of health that Doe articulated. Even more to the point: The Mississippi law has an exception for “medical emergency” that is expansive but nowhere near as broad as Doe’s definition of health, and the draft’s conclusion that the Mississippi law satisfies rational-basis review makes no mention of Doe’s definition. It’s thus clear that, like a thorn on an uprooted weed, Doe’s definition of health has no existence apart from Roe.
No one would mistake Akhil Reed Amar of Yale Law School for a pro-life activist or any sort of enthusiast for overturning Roe v. Wade. But the prominent constitutional law scholar is known for being a straight shooter willing to call out those on his own side, even his own law school administration, when they are being intellectually dishonest or just plain wrong.
The aftermath of the Justice Samuel Alito Dobbs v. Jackson Women’s Health Organization opinion leak has seen a number of defenders of Roe trot out utterly misinformed myths that distort what the draft opinion would in fact do. Amar called out a number of them on his Amarica’s Constitution podcast.
First is the notion that the draft “takes away a right” and that “that’s something that the Supreme Court has never done before,” making this case different from others that establish rights. That assertion, or something very close to that, was made by Amar’s former student, Noah Feldman; his former classmate and the ACLU’s national legal director, David Cole; and preeminent constitutional scholar Laurence Tribe. Amar called them out by name and called that notion
preposterous. It’s not wrong. It’s plainly wrong. It’s about as wrong as it’s possible to be because every first-year law student in constitutional law learns the story of 1937, the so-called “switch in time,” when the New Deal meets the old Court, and the Court, under pressure from Franklin Roosevelt, who’s been reelected in 1936, basically abandons its earlier jurisprudence—so-called Lochner era—in which case after case after case, beginning in about 1880, and now we’re talking 50 years later, which is about the same time period as between Plessy and Brown or between Roe and today. So there are case after case after case in the Lochner era using the idea of liberty of contract and the Contracts Clause and the Takings Clause and the property idea—using ideas of contract and property, which are individual rights . . . . The Court had read these rights very broadly to limit what state and federal governments could do to protect employees . . . . The Court in the Lochner era, the old Court, struck down again and again all sorts of regulations of business and struck them down in the name of rights, in the name of contract and property.
This era came to an end against the backdrop of political pressure that famously included FDR’s court-packing scheme. Feldman even wrote a book on this chapter of Supreme Court history, but now it seems to slip his mind. Amar asked, “Noah, Larry, David, what are you talking about? . . . That’s one of the most famous shifts in Supreme Court precedent of all time.”
Cole’s commentary had attempted some degree of nuance by acknowledging that the Court’s 1937 overruling landmark, West Coast Hotel v. Parrish, “took away some rights of business owners, but its real effect was to expand rights protections for millions of Americans subject to exploitation by powerful corporations.”
“Baloney” is what Amar called this disingenuous attempt to distinguish “rights expansion versus rights protection.” To illustrate why, he rephrased Cole’s sentence with a slight change in language: “Suppose I said, Well, overruling Roe’s real effect, Dobbs’ real effect, would be to expand rights protection for millions of innocent, unborn Americans . . . unborn humans, subject to extermination by society. It’s the same thing, you see. That’s not a distinction, David. Surely, you must know that, right? This is very misleading.”
Another one of their oversights, Amar continued, is that the Court’s other key abortion precedent, Planned Parenthood v. Casey (1992), “massively cut back on Roe v. Wade and . . . openly overruled at least two other post-Roe cases that were all about reproductive rights. What are you talking about? We’ve already done this in 1992.”
Another line that has made the rounds is “that other landmark cases establishing a whole host of individual rights, privacy rights and related rights, are in jeopardy” by the Dobbs opinion. Prominently making this argument are Leah Litman and a former student of Amar, Steve Vladeck, in Slate. They cited the Supreme Court’s precedents addressing contraception (Griswold v. Connecticut), sexual conduct between same-sex partners (Lawrence v. Texas), and same-sex marriage (Obergefell v. Hodges).
Amar asserts he is “passionate” about defending those precedents. To the notion that Griswold is at risk, he posed the question, “what are you talking about?” Citing Justice John M. Harlan’s separate concurrence on that issue, Amar said that “Griswold is easy and obvious under the Alito framework of” rights that are “deeply rooted” in history and tradition. “Lib law professors, you’re just trying to scare people with boogeymen or something about ‘Oh my God, Griswold is at risk.’ No, there’s no major movement to undo Griswold.”Roe’s reversal was a feature of every Republican Party platform over the last 40 years, and there has never been anything like that on Griswold. Its margin of support, Amar continued, is 9-0, including in Justice Alito’s testimony agreeing with the Court’s contraception precedents during his nomination hearing.
Amar continued: “Steve Vladeck, you’re my student, you’re my friend. What you said is absurd. OK? I’m calling bullshit on you because it’s absurd to think that Sam Alito or Clarence Thomas . . . or John Roberts for that matter” would support overturning Griswold. Unlike Roe, “Griswold does not involve the snuffing out of what many believe to be innocent, unborn human life” or invalidating the laws of 49 or 50 states or receiving “massive pushback” from one of the two major parties for the past 40 years. To Emily Bazelon, who made a similar point, Amar offered a wager of $100,000 with two-to-one odds against Griswold’s demise down the road.
To yet another trumpeter of the parade of horribles, Neal Katyal, who wrote an op-ed about Alito’s “road map to overruling Griswold,” Amar said, “Neal, you know I love you, but I do not love this piece. . . . No, this is exactly 100% wrong. Full stop.”
He continued that similarly “rock-solid” is the right to interracial marriage in Loving v. Virginia, which enjoys near universal support—and even referenced that a member of the Court, Justice Clarence Thomas, is in such a marriage. That outcome did not depend on “unenumerated rights analysis,” but included “explicit constitutional rights analysis” recognizing that “equal means equal.”
Amar’s broad conclusion: “America is not gonna move forward if we keep utterly mischaracterizing what the other folks are saying and why.” His corrective will probably be ignored by the many defenders of Roe who have made a habit of avoiding any discussion of the precedent’s grounding in the Constitution. But for those who have not decided to look the other way, it is a reminder of how egregious the disinformation in defense of Roe has become, and it is generated by so many distinguished legal commentators who should know better.
2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked bybias, a glaringconflict of interest, incompetence (seehereandhere), astacked committee,violation of its own procedures,cheap gamesmanship, and ultimately,flat-out perjury, the ABA committee rates Wallace “not qualified.” After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted. 2011—In what Chief Judge AlexKozinski’sdissent labels an “Article III putsch,” Ninth Circuit outlaw StephenReinhardtissues a 77-page majority opinion (inVeterans for Common Sense v.Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an enbancpanel of the Ninth Circuit will reverseReinhardtby a 10-1 vote, with even all five Clinton appointees on the panel voting againstReinhardt.
In the aftermath of last week’s outrageous leak of Justice Alito’s February 10 draft opinion in Dobbs, CNN reported that its sources say that Chief Justice Roberts, while purporting not to overturn Roe v. Wade, “is willing, however, to uphold the Mississippi law that would ban abortion at 15 weeks of pregnancy.” As I restated last week, I do not see how anything other than rank sophistry could support a conclusion that a 15-week ban is consistent with Roe, and I therefore cannot believe that the Chief is inclined to embrace it, much less that he would have any chance of inducing any of his colleagues to do so. But we shall see, I suppose.
In this First Thingspiece, Princeton professor Robert P. George neatly summarizes why no middle path exists between overturning Roe and invalidating the Mississippi law. Professor George draws on the more extensive essays by law professors Eric Claeys and Sherif Girgis that I have previouslyhighlighted:
Scalia Law School Professor Eric Claeys has explained why the viability line was essential to Roe and Casey. As Claeys points out, both were “overbreadth” decisions. Such decisions invalidate a law on the ground that too many of the law’s potential applications would be unconstitutional—whether or not its application to the parties in the case at hand would be.
Thus, the Roe Court didn’t focus on how early or late in pregnancy Jane Roe had hoped to abort. Her own timing was irrelevant because the Texas law at issue was overbroad. Why? Because too many of its potential applications would block a pre-viability abortion. So Roe’s whole basis for invalidating the Texas law was the supposed unlawfulness of banning abortions pre-viability. The viability line was therefore essential to Roe’s outcome—and, for similar reasons, to those of Casey and 11 other Supreme Court cases. Thus, Dobbs could not, after all, uphold Mississippi’s pre-viability ban without contradicting Roe’s and Casey’s holdings….
[U]pholding Mississippi’s law under Casey’s rule against undue burdens before viability … wouldn’t just ignore the words “before viability”; it would transform the meaning of “undue burden.” In Casey, that phrase referred to incidental regulations of the abortion procedure—like waiting periods—that would make it too hard to abort at some stage of pregnancy, preventing abortions at that stage nearly as much as formal prohibitions would. But the law in Dobbs just is a prohibition. It doesn’t make abortions harder to obtain after 15 weeks; it makes them legally impossible. So the law cannot be upheld under Casey’s rule against “undue burdens.”
To decide otherwise would transform that phrase’s meaning from “regulation that has similar impact to a ban” to “actual ban that applies too early,” as Notre Dame Law Professor Sherif Girgis has noted. Thus, Girgis continues, “a finding of ‘no undue burden’ in Dobbs would be a play on words, employing a test that only rhymed with Casey’s.” And the new test would have “a new job, and reflect a new theory of abortion rights, that left nothing of Casey’s logic intact.” First, instead of serving to “tell us the times in a pregnancy when [functional bans] are unconstitutional,” as in Casey, the phrase would “take on the quite different function of telling us how much time a woman must have between learning she is pregnant and facing a ban.”
Second, this new test would necessitate an equally “novel constitutional rationale for the resulting abortion right.” The justification would “have to be, not [Casey and Roe’s rationale] that the woman’s interest trumps the fetus’s until the fetus is viable, but a rationale less sensitive to changing judgments of fetal worth at different stages: that one way or another, pregnant women’s interests . . . entitle them to some fair opportunity to abort.”
Claeys and Girgis establish that a Dobbs “middle ground” would be no such thing. It would have to reject every part of Casey’s and Roe’s legal tests, and no part of it could rest on either precedent. The Court can either invalidate Mississippi’s law under Casey and Roe, or consign them to the ash heap of history.
2018—At the Senate Judiciary Committee hearing on the nomination of Ryan Bounds to a Ninth Circuit vacancy, Senator Richard Blumenthal tries to take Bounds to task for his college writings. As David Lat aptly summed up those writings, Bounds simply “poked fun at the excesses of political correctness,” but his critics have instead unfairly “tar[red]” him as supposedly “biased against minorities, women and gays.”
Blumenthal hilariously illustrates the point. He complains to Bounds that “You referred to fellow students as ‘oreos,’ ‘twinkies,’ ‘coconuts,’ and the like.” Bounds, in reply, makes the obvious point that he was “decry[ing] the use of those names.” Blumenthal, following up, objects: “But you referred to fellow students with those terms.” Bounds again points out that he “was complaining about the fact that other people referred to my fellow students that way.”
Alas, Bounds’s nomination will be withdrawn two months later on the cusp of a final confirmation vote, when Republican senator Tim Scott inexplicably appears to accept the Democratic smears.
2019—“I dissent!,” exclaims Sixth Circuit judge Bernice Donald in Fowler v. Benson. The panel majority rejects a challenge to a Michigan law that requires that a person’s driver’s license be suspended when that person has failed to pay fines. But Donald opines that enforcement of that law against indigent drivers “without regard to their ability to pay and without affording them reasonable payment alternatives” violates their due process rights.
2022—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”
In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See relevant excerpts from the report.)
There are so many good pieces on the draft Dobbs opinion on NRO and elsewhere that I ask your indulgence in my highlighting only two of them here.
Law professor Michael Stokes Paulsen, a longtime leader in the pro-life legal movement, declares Justice Alito’s draft opinion to be “magnificent” and a triumph for the Constitution, for the Court, for judicial courage, for principle, and for the rule of law. Read his entire “Three Very Enthusiastic Cheers for the Dobbs Draft.”
Rich Lowry, in “Scalia Was Right—Again,” reminds us of Justice Scalia’s “prescient” dissent in Planned Parenthood v. Casey in which he explained that the majority’s grandiose conceit that it could end the “national division” on abortion was (in Rich’s words) “outlandishly wrongheaded.” Rich concludes:
The Court should have listened to Scalia the first time. Now, Alito’s opinion opens the way for it, after one of the most catastrophic misadventures in its history, to finally heed his wisdom.
Justice Samuel Alito’s draft opinion for the Court in Dobbs v. Jackson Women’s Health Organization, leaked to the press this week, is magnificent. The opinion, which would overrule Roe v. Wade and Planned Parenthood v. Casey, is brilliant — a masterpiece of judicial craft, clarity of analysis, precision of expression, and fidelity to the Constitution. If it or something very much like it emerges as the finished product, this will be the Supreme Court’s finest moment since Brown v. Board of Education overruled Plessy v. Ferguson in May of 1954, 68 years ago next week.
The Dobbs draft is a triumph — a triumph for the Constitution, for the Court, for judicial courage, for principle, and for the rule of law. It does not dodge but instead confronts directly, the essential issue: the constitutional indefensibility of Roe’s creation of a right to abortion. That question is unavoidably presented by the Mississippi law at issue in Dobbs. Mississippi bans abortions that Roe’s framework says must be permitted. To uphold the state’s law is necessarily to overrule Roe and Casey. At the same time, the Dobbs draft decides no more than is necessary: it explicitly distinguishes the constitutional question of abortion from any other; it leaves undisturbed, and preserved, any other holding of the Court; it leaves open broader questions not implicated by the challenge to Mississippi’s law, such as whether the Constitution affirmatively protects the right to life of the unborn as a matter of the “equal protection” of the laws; it does nothing more than return the issue of abortion to the people, acting through elected representatives in Congress and state legislatures.
Justice Alito’s draft brilliantly unites — bridges — the slight variations among the views of the conservative and moderate justices likely forming the majority. It provides a rationale that all can agree on. (There will be three dissenters, of course — the activist-liberal justices who favor abortion rights as a matter of policy and who would insist on reading that policy preference into the Constitution, as Roe did.) Alito’s opinion systematically destroys the “substantive due process” argument for a constitutional right to abortion — the argument on which Roe had relied. To be sure, the entire oxymoronic doctrine (“substantiveprocess”?!) is beyond dubious as a matter of first principle. (Look for one or more possible concurring opinions to make that point.) But even taken on its own questionable terms, the notion that deeply embedded legal “tradition” or “history” has always supported a right to abortion as an essential aspect of liberty is simply insupportable. Alito’s draft is absolutely devastating on this score. Roe is indefensible on any legal theory (even an implausible one). The Alito opinion is direct and forthright on this point. It makes clear that Roe’s result (and Casey’s, following it) is not merely wrong but lies wholly outside the range of plausibly legitimate constitutional interpretation.
This is an important point. It has implications for the question of “stare decisis” — the judicial policy of (sometimes) adhering to precedent where a precedent is dubious but subject to reasonable disagreement. (The draft discusses precedent just a bit later.) Roe is more than arguably wrong. It is categorically wrong — egregiously, extremely, atrociously wrong. Nothing in the Constitution’s text, structural logic, or historical evidence of intent or meaning supports a right to abortion. Roe simply made up a right and read it into constitutional language that in no way supports such a conclusion. (The Alito draft slices an alternative argument for abortion, predicated on “equal protection,” to ribbons in a few swift, deft strokes.)
Planned Parenthood v. Casey in 1992 reaffirmed Roe (in its essence and in the main) largely on the basis of the doctrine of stare decisis. The Court even then was unprepared to say — indeed, appeared to deny — that Roe was correct as a matter of straightforward interpretation of the Constitution. Should the Supreme Court deliberately adhere to a flatly and egregiously wrong constitutional decision just because it decided an issue the way it did in the past? The principal legal argument for abortion as a constitutional right has become that the Court in Roe once said it was, whether defensibly or not, and that the Court should stick to Roe right or wrong as a matter of stare decisis, not constitutional merit.
The problematic notion of stare decisis in constitutional law has long vexed the justices. Justice Alito’s draft handles the issue with extraordinary care and finesse, once again uniting the somewhat different approaches of different justices. His analysis is persuasive: The Court has not hesitated to overrule prior decisions it has come to conclude were wrong and has done so on a great many occasions. Indeed, some of the Court’s most important, magnificent landmark decisions have involved the explicit overruling of long-standing but deeply flawed precedent. (Brown v. Board of Education, repudiating Plessy’s awful and racist invention of “separate but equal” constitutional doctrine, is only one of many memorable examples.) Whatever the proper role of precedent, Alito writes, it is surely relevant — and grounds for overruling such precedent — how deeply and indefensibly wrong the prior decision was; how weak its legal analysis was; how unworkable the constitutional rule it created is; how seriously it disturbs the fabric of the law in other respects; and how weak the argument is for finding that the decision itself has generated legitimate and justifiable reliance beyond the mere expectation or desire that a wrong rule remain the wrong rule. (That last factor was argued as a basis for adhering to Plessy, too.)
In patient, careful discussion, Justice Alito’s draft demonstrates how all of these factors point decisively toward overruling Roe and Casey. In this respect also, as with its discussion of the merits, the Dobbs draft is a masterpiece.
The Dobbs draft would return the issue of abortion to the democratic process — to state legislatures and in certain respects to Congress — and would go no further. In this respect, it is amusing and ironic that some abortion-rights reactors (“commentators” would probably go too far, as their statements do not reflect any reading or understanding of the draft opinion) have condemned the draft for having been issued by “unelected” and “undemocratic” judges, imposing their “tyranny” on the nation. The New York Times quoted a first-year law student to this effect. (It’s exam time at law schools right now; I hope this student does a little better than this on the final.) The irony is that the Dobbs draft would return the question of abortion to elected branches and the democratic process and remove the issue from courts — it would end undemocratic usurpation of authority by the judiciary.
My reading of the draft is that, in returning the issue to democracy, it would not foreclose the further constitutional legal argument that certain state laws permitting abortion might deny the “equal protection of the laws” to a category of human “person” arguably embraced by the Constitution. Some conservative legal commentators have expressed concerns (or gripes) with the draft on this score, but I think without good justification. The opinion goes as far as necessary to decide the case and no further; it does not deny, but (quite the reverse) seems to affirm, the humanity of the living human embryo or fetus, in the course of its discussion of the precise legal issues it treats; it would provide an excellent grounding for the next stage of the debate, in legislatures and in courts. To my mind, it would strongly support a power of Congress to exercise its power to “enforce” the 14th Amendment’s terms (under Section Five of that amendment) in favor of assuring equal protection of the right to life of unborn, living human beings gestating in their mothers’ wombs. All of this is to the good. At the same time, the opinion — significantly — would not support a congressional power to enact a Roe equivalent by statute on the premise that this would be enforcing “substantive due process” rights to abortion under that amendment. The Dobbs draft, as noted, makes clear that such a reading of the Constitution lies outside the bounds of fair and plausible construction of the document.
And as noted at the outset, by not rejecting “substantive due process” entirely, the draft preserves some other popular decisions under the doctrine. The draft posts a clear “Dobbs Does Not Disturb” sign by any other decisions. It pointedly distinguishes the situation of abortion — in part precisely because abortion, uniquely, involves the destruction of embryonic human life. (Contraception, same-sex marriage, sexual conduct, and family arrangements generally, the subject of other decisions by the Court, present no such issue.)
All of this assumes of course that the draft opinion (probably with the addition of footnotes or passages responding to arguments raised in the expected dissents) becomes, in slightly modified form, the eventual holding of the Court. I believe it will (though I am always hesitant to offer firm predictions). Expressions of left-wing and pro-choice outrage at the draft — why on earth are they acting so surprised? This was long in coming and does not seem at all unexpected — will not cow the Court. The Dobbs draft is an act of constitutional principle, of courage and conviction, and of restoration of democracy. To repeat: This reasons to be the Roberts Court’s finest hour and the most important act of principled judicial interpretation of the Constitution in more than half a century. Criticism and shrieking, by some, should not lead to abandonment of constitutional principle. (Some forget that Brown was not popular in all quarters at the time it was decided. It triggered massive resistance, for decades, by deeply entrenched opposing interests. One can reasonably expect the same with Dobbs. One can reasonably hope for the same firmness in adherence to principle as characterized the Court in the post-Brown years.)
What about the leaker or leakers? The simplest explanation is probably the most likely: a young hothead, on the left, outraged, incensed, desperate, and heedless, leaked the opinion to generate what he or she believed would be similar expressions of outrage by others. (It might be an old hothead, of course.) Take it from a former young hothead — and now a much older hothead! Emotion and anger are almost certainly what drove the leaker to leak. Implausible conspiracy theories — a double-reverse, triple-bank-shot, statue-of-liberty-play, false-flag conservative scheme to forestall feared defections from the draft’s majority! — strike me as far-fetched.
The effort here was to derail a decision on the cusp of its announcement, by bringing political pressure to bear on those in the expected majority. It is likely to be a futile effort. We will know for certain within a few weeks. Until then, the Dobbs draft deserves three cheers — even if the cheering must remain tentative. The decision, if it turns out to resemble the draft, will join the pantheon of greatest Supreme Court decisions of all time.
In a New York Timespiece today titled “Justice Alito’s Invisible Women,” Linda Greenhouse complains that Justice Alito’s leaked draft opinion supposedly “whitewashes decades of progress on women’s rights.” She contends in particular that Alito “break[s] with decades of Supreme Court practice” in citing the Court’s 1974 ruling in Geduldig v. Aiello, which held that California did not engage in invidious discrimination in violation of the Equal Protection Clause when it operated a disability insurance program that did not pay insurance benefits for disability that accompanies normal pregnancy and childbirth. As part of her claim that Geduldig is no longer a precedent, Greenhouse states:
While the court has never formally overruled Geduldig, it has not cited it to address a claim of sex discrimination since the 1970s.
Greenhouse completely omits any mention of the Court’s 1993 ruling in Bray v. Alexandria Women’s Health Clinic, even though the very source she links to states that the majority opinion by Justice Scalia in Bray “invoked Geduldig in a statutory case concerned with proving sex-based animus in abortion-clinic protests.” That omission is all the odder as Alito, in his suitably brisk rejection of the Equal Protection theory for abortion that only “some of respondents’ amici” (and not the abortion clinics or the Biden administration) “have now offered,” invokes Bray as well as Geduldig:
Neither Roe nor Casey saw fit to invoke this theory, and it is squarely foreclosed by our precedents, which establish that a State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications. The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a “mere pretext designed to effect an invidious discrimination against members of one sex or the other.” Geduldig v. Aiello (1974). And, as the Court has stated, the “goal of preventing abortion” does not constitute “invidiously discriminatory animus against women.” Bray v. Alexandria Women’s Health Clinic (1993). Accordingly, laws regulating or prohibiting abortion are not subject to heightened scrutiny. Rather, they are governed by the same standard of review as other health and safety measures. [Citations simplified.]
Greenhouse vaunts an amicus brief that (in her summary) contends that “the Geduldig decision [has been] effectively superseded by” more recent precedents, but that amicus brief does not even mention Bray.
It’s thus no surprise that neither the respondent abortion clinics nor the Biden administration even bothered to toss in an Equal Protection argument. The fact that the Biden administration believes that men can get pregnant—look who’s really rendering women invisible—would add another obstacle to such an argument.
2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations:
The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”
Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”
“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.)
2021—One tenet of transgender ideology is that sex and gender identity are coherent distinct concepts, but this supposedly fundamental distinction suddenly disappears when it stands in the way of a litigation victory.
Addressing the meaning of a state statute enacted in 1975 that governs amending a birth certificate’s statement of a person’s “sex,” the Utah supreme court asserts (in In re Sex Change of Childers-Gray) that “biological sex, as it is understood in the birth-certificate context, may transform according to how a transgender individual chooses to respond to their [sic] gender dysphoria,” irrespective of “observable external attributes.”
In solo dissent, Justice Thomas Lee argues that the word “sex” in the 1975 statute is properly “understood as a reference to biological sex.” The statute, Lee explains, allows a change in the designation of sex on a birth certificate “upon discovery of a mistake in the biological sex designation made at the time of a child’s birth, or a showing that the biological features of an intersex person have developed differently than expected at birth” and perhaps even when “a person can demonstrate that the biological indicators of sex have been altered, as by sex-reassignment surgery”—but not “on the mere basis of a change in ‘gender identity.’”
1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that the definition of marriage as a union of a man and a woman presumptively violates the state constitution and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.
2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.
2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.
Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)
2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor. Tribe explains:
“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”
Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.
According to a reporter’s tweet, Senator Susan Collins stated today: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.” But the record of Senator Collins’s own statements shows that it is she who is being “completely inconsistent.”
In her 2017 floor statement on the Gorsuch nomination, Collins stated:
I told him [Gorsuch] that it was important to me that the judiciary remain the independent check on the other two branches of government as envisioned by our Founders. Therefore, I asked him specifically whether anyone in the Administration had asked him how he would rule or sought any commitment from him on any issue. He was unequivocal that no one in the Administration had asked him for such promises or to prejudge any issue that could come before him. He went on to say that the day a nominee answered how he would rule on a matter before it was heard, or promised to overturn a legal precedent, that would be the end of an independent judiciary.
During the Judiciary Committee hearings, when Senator Lindsey Graham asked him a similar question about whether he was asked to make commitments about particular cases or precedents, he gave the same answer. In fact, Judge Gorsuch notably said that if someone had asked for such a commitment, he would have left the room because it would never be appropriate for a judge to make such a commitment, whether asked to do so by the White House or a United States Senator.
So Collins conveyed to the world back then that she understood that Gorsuch had not make any commitment about any precedent.
In her 2018 floor statement on the Kavanaugh nomination, Collins stated:
The judge [Kavanaugh] further explained that precedent provides stability, predictability, reliance, and fairness. There are, of course, rare and extraordinary times where the Supreme Court would rightly overturn a precedent. The most famous example was when the Supreme Court in Brown v. Board of Education overruled Plessy v. Ferguson, correcting a “grievously wrong” decision–to use the judge’s term–allowing racial inequality. But, someone who believes that the importance of precedent has been rooted in the Constitution would follow long-established precedent except in those rare circumstances where a decision is “grievously wrong” or “deeply inconsistent with the law.” Those are Judge Kavanaugh’s phrases.
In brief, Collins recognized back then that Kavanaugh would be open to overturning precedent that is “grievously wrong” or “deeply inconsistent with the law.” Consistent with Kavanaugh’s position, the draft Dobbs majority opinion explains that Roe “was egregiously wrong from the start”; that Casey “failed to remedy glaring deficiencies in Roe’s reasoning”; that it “relied on an exceptional version of stare decisis that … this Court had never before applied and has never invoked since”; and that “Roe and Casey have led to the distortion of many important but unrelated legal doctrines.”
J. R. R. Tolkien’s The Lord of the Rings saga tells of a ring whose power seduces all who come to possess it. Those who hold the One Ring sense the evil that lives within it. They know that the ring corrupts the souls of those who hold it, but they struggle to surrender it. Tolkien’s books tell of centuries of suffering caused by the One Ring and the difficulty of relinquishing and destroying it.
As explained in a recent law-review article, a similar story is unfolding right now at the U.S. Supreme Court. Our nation waits for the Supreme Court to decide Dobbs v. Jackson Women’s Health Organization. The justices have a chance to remedy a grave injustice and overrule Roe v. Wade. Will they be seduced by the power granted to them by cases like Roe and Planned Parenthood v. Casey? Many fear the consequences of overruling Roe. But the consequences of failing to act at this critical moment may be much worse.
Time and time again, proximity to Roe and Casey has transformed our leaders and institutions into Gollum-like, grotesque creatures that our Founders would not recognize. It’s turned the Supreme Court into a political-and-policy-making body and undermined its legitimacy. Our judicial appointment process has devolved into a partisan circus, with abortion precedents in the center ring. Not long ago, a prominent U.S. senator stood on the steps of the Supreme Court and threatened that the justices would “pay the price” and “not know what hit” them after the justices jeopardized his Precious by failing to adopt his preferred view of third-party standing in an abortion case. Now, there’s an unprecedented and shameful leak of a draft opinion in Dobbs. And with that leak, we should expect a loss of trust and collegiality at the Court.
Few issues divide Americans like abortion. These divisions will endure long after Dobbs. The Court cannot craft a social and health policy that will resolve these differences. Nor can it bring peace through half-measures. But national healing can begin by restoring our constitutional traditions and returning this long-running debate to the people.
That is, we must return to the solution provided by our Constitution: a confident federalism that allows for differences and fosters vigorous debate. The Court should seize this opportunity to return to the people and to the Court their traditional roles in our constitutional republic.
The Supreme Court granted certiorari in Dobbs on one question: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” This question goes to the heart of our abortion precedents. After all, Roe’s “central rule” has long been understood to be that a state cannot ban pre-viability abortions. That holding abandoned our constitutional structure to achieve a policy goal.
To save Roe, Casey grounded the abortion right in “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” rather than constitutional text or structure. As Harvard’s Stephen Sachs has explained, “A Court that rests decisions of extraordinary social importance on nebulous notions like ‘the right to define one’s own concept of existence . . . and the mystery of human life’’’ promotes a public perception of the Court as a partisan actor unconstrained by the Constitution it purports to interpret. It transforms the Court into “a superweapon” that “is too powerful . . . to leave lying around in a democracy; sooner or later, someone is bound to pick it up.”
During oral arguments in Dobbs, Justice Sotomayor wondered how the Court would “survive the stench” created by overruling Roe and Casey. The news of the recent leak has caused those on the left to continue to beat that drum. But the stench comes not from overruling lawless precedents, but from preserving them. The Supreme Court cannot serve the rule of law by preserving precedents — like Roe and Casey — that subvert the rule of law and erode democratic discourse. The only way to eliminate the stench is to remove the source. As post-Casey experience teaches, spraying Febreze and hoping for the best will not fix the problem.
Some of Casey’s authors thought the Court could maintain its legitimacy by affirming a decision they found both legally and morally wrong. But affirming a wrong decision simply to maintain the justices’ own institutional authority is itself deeply wrong and wrongheaded.
Dobbs provides the Supreme Court a second chance to do what it wouldn’t do in Casey. The Court must voluntarily relinquish the power it seized in Roe and return the issue of abortion to the process of democratic discussion and debate that produces law. Doing so won’t resolve disagreements regarding abortion. But it might be might a first step toward healing a long-festering wound to our life together as a nation and to our judicial institutions.
At the end of The Lord of the Rings, Frodo makes a long and difficult journey to Mount Doom, where he plans to destroy the ring. At the last moment, he is overcome by the ring’s power and loses his resolve. Gollum tries to seize the ring for himself. As they fight over it, the ring falls into the fires of Mount Doom and is destroyed.
It’s not clear that any of the five Justices poised to overrule Roe are losing their nerve, and the recent leak will likely strengthen their resolve to do what they know is right. We don’t know who leaked the draft opinion. But whoever did it is just the latest in a long line of people and institutions who have been corrupted by Roe and Casey.
A predictable effect, and perhaps part of the motive, of leaking the draft majority opinion in Dobbs is to incite crazy acts by unstable abortion fanatics. The best way for the Court to deter such acts is to issue its ruling in Dobbs forthwith.
The Court of course is free to depart from its usual practices whenever it deems that circumstances warrant departures. In an order in Murphy v. Collierin 2019, for example, the Court granted an application for a stay of execution in March, Justice Alito issued a dissent from that order six weeks later, and Justice Kavanaugh wrote an opinion responding to Alito’s dissent.
One option here would be for the Court to issue the majority opinion in Dobbs as soon as it is final—perhaps as early as today or tomorrow—along with whatever concurring opinions and dissents are ready at that time. Other separate opinions could be issued later, and the majority could then have the opportunity to respond to those separate opinions.
A second and cleaner option might be for the Chief to inform all of the justices that they need to have their votes and opinions ready to go by an imminent date certain—say, next Monday. Dobbs was argued way back on December 1, the draft majority opinion was evidently circulated in early February, and the issues are straightforward, so everyone has had plenty of time to draft opinions.
A third option would be for the Court to issue a short order now that concisely states that a majority of the Court reverses the Fifth Circuit, overturns Roe and Casey, and establishes that rational-basis review will govern state regulations of abortion. The order would also state that the full opinions in the case will be issued later.
1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provides) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.
In an especially bizarre twist, Sarokin rules that his own order constitutes a compensable taking of the property (seniority rights) of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for his taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”
In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin will change his tone and attack the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”
2019—In a 300-page opinion (in Ohio A. Philip Randolph Institute v. Householder), a three-judge district court rules that Ohio’s congressional districting map is an unconstitutional “partisan gerrymander.” In a particularly bizarre move, the court gives the Ohio legislature barely a month to enact a new map. The court’s rushed deadline is some two weeks before the end of the Supreme Court’s term, in which important redistricting cases are pending.
Three weeks later, the Supreme Court, without recorded dissent, will grant Ohio’s application for a stay of the district-court ruling. At the end of June, the Court will nullify the ruling, as it holds in Rucho v. Common Cause that claims of partisan gerrymandering are nonjusticiable.
I see no reason to doubt that the draft opinion in Dobbs that Politico has published and reported on is indeed what Politico says it is: a proposed majority opinion that Justice Alito circulated to his colleagues, evidently (according to the stamp it bears) on February 10, 2022. As Politico notes:
The draft opinion runs 98 pages, including a 31-page appendix of historical state abortion laws. The document is replete with citations to previous court decisions, books and other authorities, and includes 118 footnotes. The appearances and timing of this draft are consistent with court practice.
Above all, the superb quality of the draft is compelling evidence that it is genuine. It is difficult to imagine who outside the Court would have the time, ability, and motive to craft and release such a masterful document.
I’m going to pass over here the deep scandal that someone leaked this draft to the press. I’m instead going to offer a reader’s guide to the draft majority opinion. Before I do, though, let me emphasize that we do not know whether the draft has changed in any respects, major or minor, and we also do not know whether it or a successor version has garnered a majority. On this second point, Politico reports that a “person familiar with the court’s deliberations”—evidently, the leaker of the draft—says that Justices Thomas, Gorsuch, Kavanaugh, and Barrett “voted with Alito in the conference held among the justices after hearing oral arguments in December, and that line-up remains unchanged as of this week.”
The draft posted by Politico does not allow copying and pasting, so rather than try to retype large passages from it, I’m going to refer you to it and summarize it concisely.
Introduction (pp. 1-6)
Overview of what Roe wrought, how Casey reconceived (and in part overruled) Roe, and how Casey failed in its grandiose goal of imposing a final settlement. The Mississippi law at issue.
“We hold that Roe and Casey must be overruled.” There is no explicit or implicit right to abortion in the Constitution. Abortion is not within the category of rights that have been held to be guaranteed in their substance by the Due Process Clause. Far from being deeply rooted in the nation’s history and implicit in the concept of ordered liberty, it was a crime at all stages of pregnancy in three-quarters of the states when the 14th Amendment was adopted. It is also “fundamentally different” from “the rights recognized in past decisions involving matters such as intimate sexual relations, contraception, and marriage,” as it destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.”
Stare decisis “does not compel unending adherence to Roe’s abuse of judicial authority.” Roe was “egregiously wrong from the start,” its reasoning was “exceptionally weak,” and it has had “damaging consequences.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives…. That is what the Constitution and the rule of law demand.
Part I (pp. 5-8)
The Mississippi law and procedural background
Part II (pp. 8-35)
The Constitution does not confer a right to obtain an abortion. Neither Roe nor Casey invoked the Equal Protection Clause, and our precedents squarely foreclose such a theory.
Our decisions have held that the Due Process Clause protects two categories of substantive rights, but neither applies here. (Pp. 11-14.) Abortion had long been a crime in every state, first at common law (in at least some stages of pregnancy) and then via a wave of statutory restrictions that expanded criminal liability for abortion. “By the time of the adoption of the Fourteenth Amendment, three-quarters of the States had made abortion a crime at any stage of pregnancy, and the remaining States would soon follow.” (Pp. 15-30.)
Abortion is not an integral part of a broader right to privacy. What sharply distinguishes abortion from the rights recognized in cases like Loving v. Virginia and Griswold v. Connecticut is that abortion destroys what Roe and Casey called “fetal life” and what the Mississippi law describes as an “unborn human being.” Those cases do not support a right to abortion. Our conclusion that the Constitution does not confer such a right “does not undermine them in any way.” (See also p. 62.) N.B.: Lots of folks who haven’t read the draft have been quick to contend otherwise. (Pp. 30-35.)
Part III (pp. 35-62)
Stare decisis does not counsel continued acceptance of Roe and Casey. Some of our most important decisions have overruled precedents, and the Court has overruled important constitutional decisions on lots of occasions. (See pp. 37-39, note 47, for a very long “partial list.”)
Five factors weigh strongly in favor of overruling Roe and Casey: the nature of their error (pp. 39-41), the quality of their reasoning (pp. 41-52), the workability of their rules (pp. 52-58), their disruptive effect of other areas of the law (pp. 58-59), and the absence of concrete reliance (pp. 59-62).
Part IV (pp. 62-65)
Casey was wrong to contend that the preservation of public approval of the Court weighed heavily in favor of retaining Roe. “[W]e cannot exceed the scope of our authority under the Constitution, and we cannot allow our decisions to be affected by extraneous influences such as concern about the public’s reaction to our work.” Casey made an unprecedented claim to judicial power, and it misjudged the practical limits of the Court’s influence.
Part V (pp. 65-67)
State regulations of abortion shall be subject to deferential rational-basis review. Mississippi’s law is constitutionally permissible under that standard.
Legitimate state interests include respect for and preservation of prenatal life at all stages of development, the protection of maternal health and safety, the elimination of particularly gruesome or barbaric medical procedures, the preservation of the integrity of the medical profession, the mitigation of fetal pain, and the prevention of discrimination on the basis of race, sex, or disability.
For those few readers interested in the metaphysics of judicial retirements, I offer a couple of follow-on thoughts to my post from a couple of weeks ago in which I explained why I believe that Justice Breyer has not yet taken the action necessary to effectuate his retirement at the end of the Court’s term.
Let me reiterate that this is a purely academic inquiry, as it is clear that Breyer will resign. Let me also emphasize that this issue is distinct from the question whether President Biden has validly prospectivelyappointed Judge Ketanji Brown Jackson to Breyer’s seat, with such appointment taking effect once the seat is vacant.
1. At the close of the Court’s last scheduled argument session on April 27, the Chief Justice stated that “Justice Breyer has announced his retirement from the Court, effective when we rise for the summer recess.” The Chief further stated that “at the appropriate time, we will in accordance with tradition and practice, read and enter into the record an exchange of letters between the Court and Justice Breyer marking his retirement.”
I wouldn’t read the Chief’s statement that Breyer “has announced his retirement from the Court” as staking out a legal position that Breyer’s January 27 letter to President Biden suffices to effect Breyer’s retirement “when the Court rises for the summer recess this year” (Breyer’s language in his letter). The Chief, it would seem, is just speaking in the vernacular. In the same way, one might say that Biden nominated Judge Jackson to the Supreme Court on February 25, without taking a position on whether the actual nomination, for purposes of the Appointments Clause of the Constitution, took place when Biden submitted his nomination of Jackson to the Senate on February 28.
Conversely, I wouldn’t read the Chief’s statement about a future “exchange of letters between the Court and Justice Breyer marking his retirement”—an exchange that I assume will take place on the last day of the term—as staking out a legal position that such an exchange is necessary to effect Breyer’s retirement. But it should be sufficient to do so, and will thus render irrelevant whether Breyer’s January 27 letter was itself sufficient.
2. Even if Breyer’s January 27 letter would suffice to effect his retirement at the end of the term, there is the separate—and, again, entirely academic—question whether Breyer could still retract such a retirement decision.
Back in 1974, the Department of Justice’s Office of Legal Counsel had occasion to opine whether a federal judge could withdraw his decision to retire. (OLC provided me a redacted copy of its opinion years ago, but I am only now having occasion to make it public.) In that instance, the judge had sent President Nixon a letter dated February 12, 1974, setting forth his decision to retire from regular active service, effective April 1, 1974, because of permanent disability. But eight days later, he sent Nixon a second letter stating that (in OLC’s summary) “he had received further medical advice which has led him to believe that he is not permanently disabled” and therefore wished to withdraw his election to retire.
OLC’s opinion cites with approval “a number of recent court rulings” that have “established” that “a resignation to take effect in the future may be withdrawn prior to its effective date, especially where, as here, it had not been accepted prior to that time.” It also invokes an “additional consideration” raised by the statutory provision governing permanent disability.
OLC’s advice generally governs the executive branch, so it is an interesting question whether it means that Breyer could retract his January 27 letter—and, if so, whether the current OLC and the White House would abide by the 1974 opinion. On the one hand, the 1974 opinion indicates that it might matter whether the president has “accepted” a judicial retirement. On any coherent understanding of that concept, it seems plain that Biden has accepted Breyer’s prospective retirement. On the other hand, it is difficult to imagine that the White House would try to, or would be able to, force Breyer to go ahead with his retirement if he in fact were to change his mind.
What all of this does suggest is that, as law professor Richard Re argues more extensively in “The Peril and Promise of SCOTUS Resignations,” it would be good for Congress to craft a federal statute that would provide clarity on how Supreme Court justices and other federal judges should effect their retirement.
1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.
One year later, the Supreme Court will reverse the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor, and Souter dissent.
2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination will finally be confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.
It seems like every other week, a new gender-identity announcement has come out of the Department of Health and Human Services (HHS). See here, here, here, here, here, here, here, and here. This flood was expected after President Biden appointed a leftist, Xavier Becerra, as HHS Secretary and transgender-activist par excellence, Dr. Rachel (formerly Richard) Levine, as Assistant Secretary of Health. But a funny thing happened on the way to transforming HHS into the Department of Health and Gender Services. The Centers for Medicare & Medicaid Services (CMS), an HHS sub-agency, just abandoned its plans to force millions of people to pay for other people’s transgender treatments by declaring them “essential health benefits” under proposed Obamacare insurance regulations. You may be wondering how this surprising about face came to pass. It was because a dedicated coalition of advocates discovered this radical proposal to transform health care and used nothing but their knowledge and voices to block it.
Here’s how we did it.
Literally one of the first things Biden did after entering office was sign an Executive Order giving every federal agency 100 days to submit a plan to “promulgate new agency actions” to further the LGBT agenda, including with respect to “access to healthcare.” In keeping with this promise, last October, HHS bragged that it had launched a pilot program requiring transgender insurance coverage in Colorado that included “eye and lid modifications, face tightening, facial bone remodeling for facial feminization, breast/chest construction and reductions, and laser hair removal.” So, if you are in Colorado, there is a good chance your insurance premiums are helping to pay for breast implants and chin tucks for biological men.
As I told the Washington Post at the time that, “This is a liberal administration and governor colluding to mandate coverage for a lifetime of cross-sex hormones and removal of healthy organs, including for minors. . . . Their end game is clear, to push these dangerous experimental treatments on kids and unwilling families as a national insurance mandate.”
I hate to say I told you so, but . . . allow me to direct you to January 5 of this year, when CMS posted a 408 page proposed regulation innocuously titled “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2023.”
Normally, these sorts of regulations contain lots (and lots) of boring technical insurance changes that only an ERISA lawyer could love. But not with this administration. It took this anodyne regulation as a golden opportunity to impose the “essential health benefits” transgender-insurance mandate nationwide. Quietly unveiling such a major change in such an unlikely place — during the holiday season no less — is bad enough, but giving the public a mere 22 days (instead of the typical 60) to submit comments on the regulation reeks of cynicism and disrespect. The Biden people clearly hoped the American public wouldn’t notice, and most people didn’t. But not everyone.
Because I had successfully worked to restore the scientific and biological understanding of sex at HHS while a senior official there during the Trump administration, I had a personal interest in this issue and wasn’t about to let this one slip by without a fight.
We objected to the rule enshrining bad medicine into law, especially concerning children. We objected to the rule’s coercion. We objected to its exorbitant costs. We objected to the breaks with proper procedure. We also substantiated all the above with evidence.
In the face of this coordinated response, and to my genuine surprise, yesterday, HHS caved. It completely abandoned the transgender-insurance portions of the proposed rule, saying that they would deal with the issue in a future rulemaking under antidiscrimination provisions known as Section 1557 of Obamacare. This allowed HHS to finalize the bulk of the technical, boring parts of the rule without having to respond to our comments. Unbeknownst to most citizens, federal agencies are required by law to read, evaluate, and respond to substantive comments submitted on regulations.gov before the deadline for major rules. Here, HHS choose to raise the white flag, at least for now, in order to avoid having to deal with the many weighty objections we raised, even though the proposed rule was explicitly justified as furthering a presidential priority. Our comments caused internal debate and dissension within the Biden administration about priorities and resources resulting in the scrapping of the original plans. This tremendous victory was achieved solely because a group of us exercised our rights to petition the government for a redress of grievances. See Amend. I, U.S. Const.
Will this radical administration try to impose a transgender mandate again in the future? Absolutely. But now, they will have to start the process all over again, and when that time comes we will be ready, and next time, we’re bringing friends.
1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.
2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”
Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.
The latest skirmish in the campaign by Democrats and their liberal allies to simultaneously demonize and politicize the Supreme Court took place yesterday in a House Judiciary subcommittee. I witnessed some misleading hearings in my 15 years as a Senate Judiciary Committee staffer, but this was one of the worst.
Here’s the backstory. Democrats and their liberal allies will never forgive Republicans for two recent confirmation sins. In 2016, Republicans prevented President Barack Obama from flipping the Court’s 5-4 Republican majority by refusing to consider his nominee to replace the late Justice Antonin Scalia. Four years later, Republicans bumped that margin to 6-3 by confirming Justice Amy Coney Barrett, President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg.
Never mind that Democrats would have done the same in both instances had the partisan roles been reversed. Those two actions made more elusive the thoroughly politicized, interest-driven Supreme Court that the Left needs to implement much of its political agenda.
Liberals might have, say, tried convincing Americans and the legislators they elect that the liberal agenda is a good thing after all. Or they might have made the case that certain Supreme Court decisions were wrong on the merits. But they didn’t. Instead, liberals figured if they can’t have the politicized Supreme Court they want, they will demonize and undermine the non-politicized Supreme Court they don’t.
Which brings us to yesterday’s hearing. Consistent with the strategy, it was titled “Building Confidence in the Supreme Court Through Ethics and Recusal Reforms.” The title furthers the spin that confidence must be rebuilt because it has crumbled in the face of unethical behavior by Supreme Court justices or, more precisely, by Republican-appointed justices (Democrat appointees are apparently ethically pure as the driven snow).
The Supreme Court should have an ethics code, the spin goes, because lower-court judges as well as the legislative and executive branches have one. That, however, is an observation, not an argument, and it wrongly implies that the lower courts and Supreme Court are equals and that the three branches are simply interchangeable. Subcommittee chairman Hank Johnson (D., Ga.), for example, has introduced legislation to require the Judicial Conference of the United States to “issue a code of conduct, which applies to each justice and judge of the courts of the United States.”
This hearing was seriously misleading on multiple levels. First, the Constitution created the Supreme Court, while Congress created the lower courts. Simply observing that the lowers courts follow a particular policy, therefore, does not automatically mean that the Supreme Court should do so or that Congress has authority to make it happen.
Neither side seemed to notice when one of the Democrats’ own witnesses made this crucial point during the hearing yesterday. Professor Stephen Gillers, a well-known expert in judicial ethics, testified that “there are serious separation-of-powers questions over whether or not Congress can adopt an ethics code for the Court which is, like Congress, created by the Constitution.” He’s right.
Second, the Judicial Conference is the policy-making body for the lower federal courts. It has no authority over the Supreme Court. Johnson’s bill, therefore, would task the Judicial Conference with doing something it really has no authority to do.
Third, despite all the huffing and posturing, the Johnson bill would not require that the Supreme Court pay any attention to, let alone follow, any code of conduct from whatever source.
Fourth, the separation of powers also means that observing that the legislative and executive branches have their own ethics codes or policies is just that — an observation and nothing more. It is no argument at all, therefore, that the judicial branch in general, or the Supreme Court in particular, should have one.
Fifth, Democrats observed yesterday that general public approval of the Supreme Court reached a low of 40 percent in Gallup polls, but here’s some of what they failed to mention. Since most Americans know next to nothing about our system of government in general, and the judiciary in particular, they give the Supreme Court a thumbs-up-or-down based on whether they like the result of its latest high-profile decision. Or worse, the public’s perception of the Supreme Court might mirror how the mainstream media portray it. If that’s the case, it’s a wonder that its approval rating is not still lower.
The fact that Congress has ethics rules has not helped bolster public confidence in that branch of government. The website pollingreport.com aggregates polls on many issues by more than a dozen major pollsters. Congress failed to reach 40 percent (the Supreme Court’s lowest) approval in any of the 341 listed polls over the last decade. Congress’ average approval of 18 percent over that period is a mere shadow of the Supreme Court’s 47 percent average. It turns out that the House of Representatives is made of glass, and Democrats may not have thought through offering themselves as the standard for ethical virtue.
That much of the hearing was misleading, but it also had a darker side. In addition to demonizing a Supreme Court they do not control, the Democrat/liberal cabal also wants to exploit the controversy over the events of January 6, 2021. To that end, they seized on the news that Justice Clarence Thomas’ wife, Ginni, sent text messages regarding the outcome of the 2020 election to then-White House chief of staff Mark Meadows. Ah, thought the Left, the chum is in the water, and all we have to do is stir.
Justice Thomas was a specific target of vitriol at yesterday’s hearing because he had not recused himself from a case titled Trump v. Thompson. The House January 6 Committee requested presidential records from the archivist of the United States regarding the events of that day, and Trump sought to block disclosure by claiming executive privilege over some of them. President Joe Biden, however, declined to do so. The U.S. Court of Appeals (with an all-Democrat panel) refused to issue an injunction, and Trump appealed. The Supreme Court voted 8–1 against blocking disclosure while its merits were being litigated. A single sentence read: “Justice Thomas would grant the application.” That’s it. Nothing about the merits or the issues, nothing about the election or Trump’s claims about it, nothing about the House investigation. In fact, Thomas did not actually write anything at all, but simply voted to put the disclosure temporarily on hold until the legal issues could be fully resolved.
That became a wild tale about the Thomases plotting and scheming to take over America, or Justice Thomas using his Supreme Court position to promote his wife’s political interests, or a few other flights of fancy. That became accusations that Justice Thomas was unethical, flouting federal law in declining to recuse, and calls for him to resign or be impeached. Make no mistake, once the fictional account of Ginni Thomas’s actions is replaced with the truth (see here, here, and here), nothing required Justice Thomas to recuse himself from that case. The Heritage Foundation’s John Malcolm participated in a panel discussion (watch it here) that made this clear. And suggesting that his wife’s views or activities somehow amount to him having committed “treason, bribery, or other high crimes and misdemeanors” justifying impeachment is beyond delusional. It is a lie – a deliberate attempt to smear a justice by capitalizing on the public’s ignorance.
Two recent polls (here and here) found that more than 60 percent of Americans believe the Supreme Court decides cases primarily by politics rather than the law. That’s perhaps not surprising, given the steady stream of propaganda from Democrats and their liberal co-conspirators that Supreme Court decisions you don’t like are “political” while the ones you like are impartial.
The Left, therefore, is not responding to a crisis of confidence that already exists, but one of its own making. Claiming to now have the solution is a little like the guy who murdered his parents and then asks the court for mercy because he’s an orphan.
2001—Senate Democrats convene at a resort to develop a strategy to escalate their fight against President George W. Bush’s prospective judicial nominees. High on their list is launching an unprecedented campaign of partisan filibusters of lower-court judicial nominations.
Senator Jim Jeffords’s decision weeks later to join the Democratic caucus will give the Democrats a Senate majority and enable them to shelve the filibuster weapon. But in 2003, after Republicans regain control of the Senate, Democrats will unleash their campaign. Over a period of two years, ten of President Bush’s appellate nominees will endure a total of 20 defeated cloture motions.
2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.
Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”
Only after the cameras are off, in her written responses to post-hearing questions (see point 6 here), will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.
In its strong lead editorial today, the Wall Street Journal editorial board reiterates its call for the Supreme Court to use the pending case of Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and thus allow abortion law to “sort itself out democratically.” In the course of its argument, the WSJ speculates that Chief Justice Roberts might instead be trying “to find a middle way” and to “to pull another Justice to his side,” and thus prevent a majority ruling that would overturn Roe.
I remain hopeful that the WSJ’s speculation is unsound. It’s one thing for the Chief to have explored the possibility of a “middle way” at oral argument. It would be quite another thing for him to pretend to have found a path that doesn’t exist. In my judgment, the WSJ is far too generous in suggesting that such a path “might be explainable with some legal dexterity”—unless, that is, dexterity is a gentle euphemism for rank sophistry.
As my own WSJ op-ed pointed out on the day of oral argument in Dobbs, the Chief’s actual record—including the principles that he has spelled out on when bad precedent should be overruled and his broader jurisprudential commitment to deference to the political branches—dictates that he should vote to overturn Roe. So do his proper concerns for the Court’s institutional legitimacy:
The immediate aftermath of the overruling of Roe might well be messy and contentious. But unless concerns over the court’s legitimacy are mere camouflage for the court’s self-aggrandizement, a sound institutionalism must also respect the legitimacy of the state legislatures that our Constitution leaves with primary authority over abortion policy.
By contrast, if the Chief were to concoct an implausible middle way, he would discredit himself and invite endless bullying. Even worse, if he were somehow to pull a justice away from a 5-justice majority that is ready to overturn Roe, he would, as the WSJ points out, merely “prolong the Court’s abortion agony.”
There will be no better occasion than Dobbs to inter Roe. Let’s hope that the Chief proves all his doubters wrong.
2015—Federal district judge Jon S. Tigar denies the state of California’s request for a stay, pending appeal, of his preliminary injunction ordering the state (supposedly pursuant to the Eighth Amendment) to provide prisoner Jeffrey Norsworthy “sex reassignment surgery as promptly as possible.”
Tigar agrees that the state’s appeal raises a serious legal question but he concludes that the state can’t show irreparable injury from denial of the stay. Never mind that, if the mutilation-as-surgery goes forward, the state will never be able to recover the costs of surgery that it incurs. Tigar’s denial of the stay is evidently designed to render the matter moot—what relief could the state obtain post-surgery?—and thus immunize his own ruling from appellate review.
A Ninth Circuit panel will promptly issue an order staying Tigar’s injunction pending appeal. But one day before oral argument on the Ninth Circuit appeal, the state will release Norsworthy on parole.
1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.
Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.
In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999—twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.
2019—The Kansas supreme court rules (in Hodes & Nauser v. Schmidt) that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” means that any restriction on abortion must be subjected to strict scrutiny (rather than the more permissive “undue burden” standard that the U.S. Supreme Court misread into the federal Constitution in Planned Parenthood v. Casey in 1992).
The ruling comes in a challenge to a Kansas law, enacted in 2015, that prohibits use of the dilation-and-evacuation (D&E) method of abortion except where necessary to preserve the life or health of the mother. D&E is the most common method of abortion in the second trimester. In his opinions in the partial-birth abortion cases (Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)), Justice Kennedy described what ordinary D&E entails (in order to distinguish it from partial-birth abortion, which is a variant of D&E). In his solo dissent, Justice Caleb Stegall quotes Justice Kennedy’s descriptions:
The [D&E] procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.” Using the resistance “created by the opening between the uterus and vagina” the “grasped portion” is torn “away from the remainder of the body.” “For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.” The baby then “bleeds to death as it is torn limb from limb.” The child “can survive for a time while its limbs are being torn off.” The heartbeat can continue even “with ‘extensive parts of the fetus removed.’” “At the conclusion of a D&E abortion . . . the abortionist is left with ‘a tray full of pieces.’”
Six members of the Kansas supreme court would have you believe that a mother has a “natural right” to have her child killed in this way.
In his lengthy and impressive dissent, Justice Stegall castigates the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”
1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.
1938—In his famous footnote 4 in United States v. Carolene Products Co., Justice Harlan F. Stone lays the foundation for courts, in addressing substantive due process claims, to exercise “more exacting judicial scrutiny” of certain disfavored classes of statutes.
1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark all the way across the country to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”
Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.
2018—A Ninth Circuit panel rules (in Richey v. Dahne) that a prison official is liable to a prisoner under the First Amendment for not processing a grievance that, even after the prison official’s initial objection, “included rude comments about [a] guard’s weight” and stated that “[i]t is no wonder why guards are slapped and strangled by some prisoners.”
A year later, in dissenting from the Supreme Court’s denial of review, Justice Alito, joined by Justice Thomas and Justice Kavanaugh, will question the proposition that “a prison must accept grievances containing personal insults of guards” and will marvel at the proposition that the First Amendment “require[s] a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard.” The Ninth Circuit’s decision, they observe, appears to “def[y] both our precedents and common sense.”
2002—In Visciotti v. Woodford, a trio of liberal Ninth Circuit judges (opinion by Harry Pregerson, joined by A. Wallace Tashima and Marsha S. Berzon) rules that a California prisoner who was convicted of first-degree murder and sentenced to death received ineffective assistance of counsel during the penalty phase of his trial and is entitled to federal habeas relief.
In November 2002, the Supreme Court, without any registered dissent, will summarily reverse the Ninth Circuit ruling and slam the panel’s reasoning. Contrary to the Ninth Circuit’s claim, the California supreme court “painstakingly describes the Strickland standard” for ineffective assistance of counsel. The Ninth Circuit’s “readiness to attribute error is inconsistent with the presumption that state courts know and follow the law” and “is also incompatible with [the federal habeas statute’s “highly deferential standard for evaluating state-court rulings.” Further: “All of the mitigating evidence, and all of counsel’s prejudicial actions, that the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court’s lengthy and careful opinion.”
2020—In Gary B. v. Whitmer, a divided Sixth Circuit panel, in a majority opinion by Judge Eric L. Clay, holds that the Constitution “provides a fundamental right to a basic minimum education,” which it says means an education “that plausibly provides access to literacy.” Whatever that might mean. In dissent, Judge Eric E. Murphy objects that the majority’s ruling departs from settled doctrine.
Plaintiffs and Michigan governor Gretchen Whitmer will race to settle the case before the en banc Sixth Circuit can override the panel decision.
2019—A Third Circuit panel rules in Fulton v. City of Philadelphia that the city of Philadelphia lawfully refused to contract with a Catholic provider of foster-care services unless that provider agreed to certify same-sex couples as foster parents. Two years later, a unanimous Supreme Court will rule that the city’s refusal violated the provider’s Free Exercise rights under the First Amendment.
Update (1 p.m.): On further consideration, and with the benefit of the insights of a reader, I think that I overstated things in my original post. It would have been better if Kagan had stated explicitly that, having disagreed with the majority on the question on which certiorari was granted, she would not disturb, and would thus affirm, the Sixth Circuit’s judgment. But I think that I was wrong to contend that Kagan had to revisit whether the Sixth Circuit properly applied Brecht. Rather than deleting my post entirely, I am striking through the flawed passages.
In its ruling today in Brown v. Davenport, the Supreme Court divided 6 to 3 on an arcane (but, I gather, important) issue of federal habeas law:
After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U. S. 619 (1993)? Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)?
Justice Gorsuch’s majority opinion answers “no” to the first question and “yes” to the second. Justice Kagan’s opinion, which is denominated a dissent, says “yes” to the first and “no” to the second.
The competing opinions will provide lots of fodder for habeas scholars. But I will instead confine my inquiry here to a technical question: Is it correct for Kagan to label her opinion a dissent? I think not.
No matter how vigorously a separate opinion disagrees with a majority opinion, it qualifies as a dissent (rather than a concurrence in the judgment) only if it disagrees with the majority opinion as to the judgment: in this case, whether to affirm or reverse (or vacate and remand) the Sixth Circuit’s judgment granting habeas relief.
Gorsuch’s majority opinion explicitly reverses the Sixth Circuit’s judgment. But unless I’m missing it (and perhaps I am), I don’t see where Kagan actually states that she would affirm the Sixth Circuit’s judgment.
In other words, even if Kagan believes that the Sixth Circuit majority was right to look only to Brecht, she would have to say that the Sixth Circuit properly applied Brecht in order to affirm the Sixth Circuit’s grant of habeas relief. But I don’t see where she does so. On the contrary, while she finds it useful to argue that Gorsuch’s opinion shows that the Court itself would reverse the Sixth Circuit on the basis of Brecht alone, I don’t see that she indicates that she would disagree with such a ruling. And given the fact that the Sixth Circuit’s application of Brecht would appear to be subject to de novo review, she can’t just implicitly defer to that application.
Kagan states in the introduction to her opinion that she “respectfully dissent[s] from [the Court’s] pointless demand” that courts “jump through AEDPA’s hoops as well” as satisfy Brecht. But that odd locution is clearly not a dissent from the Court’s actual judgment.
In short, for all the work that Kagan has done to express her disagreement with the majority on the legal question the case presents, I think that she stopped short of the additional work needed to determine whether her opinion should be a concurrence in the judgment or a dissent.
1969—In his majority opinion in Shapiro v. Thompson, Justice Brennan rules that state and D.C. laws that deny welfare assistance to residents of less than a year violate a constitutional right to travel interstate. Brennan’s usual ally, Chief Justice Warren, dissents on the ground that Congress had authorized the one-year residency requirement. In a separate dissent, Justice Harlan objects that he “know[s] of nothing which entitles this Court to pick out particular human activities, characterize them as ‘fundamental,’ and give them added protection under an unusually stringent equal protection test.” More broadly, Harlan observes:
“Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.”
The Senate, which recessed shortly after the confirmation of Judge Ketanji Brown Jackson to the Supreme Court on April 7, shall return next week. President Biden announced his intent to make five additional judicial nominations during the recess, including John Z. Lee for the Seventh Circuit and Salvador Mendoza for the Ninth Circuit. Including those nominees, who are expected to be submitted to the Senate soon after it reconvenes, below is a full update on the status of President Biden’s judicial nominations.
Current and known future vacancies: 110
Supreme Court: 0
Courts of Appeals: 19
District/Specialty Courts*: 91
Pending nominees for current and known future vacancies†: 29
Courts of Appeals: 7
District/Specialty Courts*: 22
Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings
Days Since Original Nomination
Both Blue Slips Returned?
Judiciary Committee Hearing Date
J. Michelle Childs (DC)
Not yet scheduled
Nancy G. Abudu (11th)
Not yet scheduled
John Z. Lee (7th)
Salvador Mendoza, Jr. (9th)
Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes
Original Nomination Date
Days Since Original Nomination
Judiciary Committee Hearing Date
Court of Appeals Nominees Awaiting Senate Floor Votes‡
Original Nomination Date
Days Since Original Nomination
Date Reported to Senate Floor
Andre Mathis (6th)
Stephanie Dawkins Davis (6th)
Nominees Awaiting Floor Votes: 10
Courts of Appeals: 2
District/Specialty Courts*: 8
All Nominees (via Judiciary Committee) Confirmed by the Senate during the 117th Congress: 61
Supreme Court: 1
Courts of Appeals: 15
District/Specialty Courts*: 45
All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day: 61
Supreme Court: 1
Courts of Appeals: 15
District/Specialty Courts*: 45
All Article III Nominees Confirmed by the Senate since Inauguration Day: 59
Supreme Court: 1
Courts of Appeals: 15
District/International Trade Courts: 43
* Includes the Court of Federal Claims, Territorial Courts and the International Trade Courts
† Includes nominees who were announced during recess but not yet submitted to the Senate
‡Note that Third Circuit nominee Arianna J. Freeman failed to report favorably on April 4, 2022
On Monday, the Supreme Court will hear oral argument in Kennedy v. Bremerton School District, which presents the question whether a school district can punish a football coach for kneeling and saying a brief silent prayer on the fifty-yard line at the end of a game.
In an incendiary screed on Slate last week, Dahlia Lithwick and Mark Joseph Stern grossly misstate the facts of the case in support of their ridiculous contention that the case “was carefully engineered to return prayer to public schools” and “marks an effort to overturn nearly 60 years of precedent protecting schoolchildren from state-sponsored religion by flipping the First Amendment on its head.”
Let’s start with the actual facts, as set forth in the Ninth Circuit opinion that ruled in favor of the school district. All of the quotations in the next five paragraphs are from the “Factual and Procedural Background” of that opinion or, in two instances, from the “directive” that, as the Ninth Circuit states, the school district sent to the coach.
Joseph Kennedy was an assistant coach of the varsity football team as Bremerton High School and the head coach of the junior-varsity team. A practicing Christian, Coach Kennedy believed that at the end of each game he should “kneel at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” His prayer “usually lasted about thirty seconds.”
Kennedy prayed alone when he first started working at Bremerton High School. But when some players asked whether they could join him, he replied, “This is a free country. You can do what you want.” Over time, the group of players joining him in prayer “grew to include the majority of the team.”
Kennedy then “began giving short motivational speeches at midfield after games,” and, as Kennedy later acknowledged, these speeches “likely constituted prayers.” The school district then advised Kennedy that his motivational speeches “must remain entirely secular in nature” and that any religious activity on his part while on duty “must be physically separate from any student activity, and students may not be allowed to join such activity.” In response, Kennedy “temporarily stopped praying on the field after football games.”
In a letter from his lawyer on October 14, 2015, Kennedy informed the school district that he “would resume praying on the fifty-yard line immediately after the conclusion of the October, 16, 2015 game” and that “he would allow students to join him in that religious activity if they wished to do so.” On October 16, “Once the final whistle blew, Kennedy knelt on the fifty-yard line, bowed his head, closed his eyes, ‘and prayed a brief, silent prayer.’”* “A photo of this scene . . . in the record . . . depicts approximately twenty players in uniform kneeling around Kennedy with their eyes closed, a large group of what appear to be adults standing outside the ring of praying players, and several television cameras photographing the scene.” (The players kneeling around Kennedy, it turns out, were evidently from the opposing team. The Ninth Circuit quotes, and does not dispute, Kennedy’s testimony on that point, and the school district’s complaint to Kennedy about his prayer on October 16 acknowledges that his team’s “traditional singing of the school fight song” was under way when Kennedy said his prayer.)
On October 23, the school district “sent Kennedy a letter explaining that his conduct at the October 16 game violated [the school district’s] policy.” That letter also directed Kennedy that “you may not engage in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.” After games on October 23 and October 26, Kennedy “engaged in the same behavior in violation of [the school district’s] directive.” The school district then suspended him from his duties.
Now let’s look at how Lithwick and Stern mischaracterize things:
Joe Kennedy was a football coach in Washington state who led explicitly religious prayer circles with students at the 50-yard line after games. When the school district discovered this conduct in 2015, it repeatedly sought to accommodate his beliefs, asking him to pray in a less public location to avoid conveying the school’s endorsement of his beliefs. Kennedy refused, instead hiring lawyers at the far-right First Liberty Institute to threaten the school with a lawsuit.
He and his lawyers then launched a media blitz, falsely claiming that he had been persecuted for quiet, private prayer. School district officials were inundated with hateful threats from the public. His postgame prayer circles then became a spectacle, with media and spectators rushing onto the field to watch or join. At one game, students racing from the stands tripped over cables and knocked over members of the school band; parents later complained about the “stampede” threatening their children’s safety. In effect, Kennedy had hijacked the school’s football games to pray with team members in the most public manner conceivable. After he refused multiple offers of potential accommodations, the school placed him on paid administrative leave.
It is true that Coach Kennedy “led explicitly religious prayer circles with students,” via his motivational speeches, for some period of time until the school district advised him not to. But when Lithwick and Stern state that “Kennedy refused” the school district’s efforts at accommodation and that he continued his “postgame prayer circles,” they hide from their readers that Kennedy (presumably on the good advice of the First Liberty Institute) had abandoned those motivational speeches and had returned to praying “a brief, silent prayer” on his own, while not affirmatively barring others from kneeling around him. Their claim that he “hijacked the school’s football games to pray with team members in the most public manner conceivable” is absurd.
Lithwick and Stern also conveniently omit any mention of the school district’s policy. I don’t doubt that the “spectacle” they decry (and that the Ninth Circuit also describes) presented the school district a difficult challenge. But the constitutional question is whether it was permissible for the school district to respond to that challenge by directing Coach Kennedy that he “may not engage in demonstrable religious activity, readily observable to . . . students and the attending public.” The fact that Lithwick and Stern don’t mention the policy is quite a signal that even they can’t defend it (much less contend that Coach Kennedy “carefully engineered” its intrusion on his constitutional rights).
In its ruling more than five decades ago in Tinker v. Des Moines Independent School District (1969), the Court famously stated that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That, it said, had “been the unmistakable holding of this Court for almost 50 years” before 1969. It likewise is obviously true that neither students nor teachers — including coaches — shed those rights or their rights to religious liberty under the same First Amendment at a school’s football game.
So Lithwick and Stern are patently wrong to think that protecting Coach Kennedy’s constitutional rights would somehow “flip the First Amendment on its head” and “erase the rights of children who wish to avoid religious coercion at school.” If there are legitimate concerns that a teacher’s or coach’s constitutionally protected religious activity might subject students to religious coercion, there are surely ways for a school district to address those concerns without violating the Constitution.
* One confusing element in the Ninth Circuit’s presentation of facts is that it also states that “Kennedy’s counsel acknowledged in his October 14, 2015 letter that Kennedy’s prayers were ‘verbal’ and ‘audible,’ flatly contradicting Kennedy’s own recounting.” But a letter written on October 14 obviously couldn’t contradict a recounting of what happened two days later, so it would be strange to read this sentence as contradicting the Ninth Circuit’s own recitation of what Kennedy did on October 16. In any event, it is difficult to see how anything turns on whether Kennedy’s prayers were silent or audible.
1971—In what politics professor Shep Melnick calls “one of the most confused and internally contradictory opinions ever issued by the Supreme Court,” Chief Justice Warren Burger’s unanimous decision in Swann v. Charlotte-Mecklenburg Board of Education will (in Melnick’s summary) lead “federal judges throughout the South to mandate extensive busing to create racially balanced schools” and “become the foundational opinion for those who believe that desegregation requires rather than prohibits the use of race in assigning students to particular schools.”
2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.
Harper’s complaint will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.
2021—In the course of denying an alien’s request for relief from a removal order, Sixth Circuit judge Martha Craig Daughtrey somehow sees fit to opine in her majority opinion (in Lopez-Soto v. Garland) that “a not-insignificant number of Americans believe that any change to our immigration statutes should result in shutting our borders to almost all individuals, or at least to all potential immigrants who are not blond-haired and blue-eyed.” In his opinion concurring in the judgment, Judge Amul Thapar nicely replies:
“I have my doubts about the wisdom of courts opining on hot-button political issues or the motives of citizens who hold one position or another in those debates. And as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.”
2021—In an astounding ruling (in LA Alliance for Human Rights v. City of Los Angeles), federal district judge David O. Carter seizes power as homelessness czar and orders the City of Los Angeles and the County of Los Angeles to take a broad set of actions to address the area’s homelessness crisis. Among other things, the City must place one billion dollars “in escrow”—i.e., under Carter’s supervision—and the City and the County must “offer and if accepted provide” housing to the “general population living in Skid Row” by mid-October 2021.
In September 2021, a unanimous panel of Ninth Circuit judges, all of whom were appointed by President Obama, will vacate Carter’s order and criticize it as “largely based on unpled claims and theories.” Further, the plaintiffs “failed to put forth evidence to establish standing,” and Carter “impermissibly resorted to independent research and extra-record evidence.”
President Biden’s judicial gifts to dark-money groups do not end with Ketanji Brown Jackson or other far-left nominees he picked for lower courts. Eleventh Circuit nominee Nancy Abudu made her career in the dark-money realm since 2005, when she joined the American Civil Liberties Union. She worked for several years for the group’s Voting Rights Project, leaving just as another future Biden nominee—Dale Ho—became its director. From there, Abudu assumed the post of legal director of the ACLU of Florida.
In 2019, after over a decade with the ACLU, Abudu joined the Southern Poverty Law Center (SPLC), a once admirable group that in recent years has been mired in scandal and recognized as a racket that betrays its stated principles—not least by vilifying those it disagrees with as “hate groups.” A number of liberals have acknowledged this, with Nathan J. Robinson, founder of the left-wing Current Affairs, calling the group’s signature “Hate Map” an “outright fraud.”
Abudu is the group’s director for strategic litigation. A wide-ranging coalition of over 50 organizations and individuals protested her nomination in a letter to Senate Judiciary Committee Chairman Richard Durbin and Ranking Member Chuck Grassley. They stated bluntly: “Ms. Abudu works for a disreputable organization that has no business being a feeder for positions to any judicial office—not even of a traffic court—let alone the second highest court system in the United States. She is a political activist not a jurist and is unfit to serve at the federal appellate level.”
The Family Research Council (FRC) circulated the letter. They have good reason to have sounded the alarm. They know the real danger of being labeled a “hate group” by the SPLC. As their letter to Durbin and Grassley explains:
These destructive accusations have done real harm to many people. In the first conviction under the post-9/11 District of Columbia terrorism statute, the convicted terrorist was shown to have been motivated by the SPLC’s “hate group” designation and related identifying information.
In that case, SPLC materials facilitated a troubled young man’s delusional, and thankfully unsuccessful, plan to commit mass murder. Using the SPLC “hate map,” this native of northern Virginia targeted the Family Research Council (FRC) and two other nearby groups in August 2012 for having beliefs supporting traditional marriage. Fortunately, no one was killed, although he did shoot and critically wound FRC’s unarmed building manager who subdued him while wounded.
To make matters worse, the SPLC’s leadership—Abudu included—apparently haven’t learned their lesson. “[O]ver the past decade the SPLC has targeted an increasing number of policy groups with whom it has policy disagreements. Any group that disagrees with the SPLC about positions it advocates is deemed to be evil and worthy of destruction,” laments the coalition letter.
In addition to its inflammatory designations, the SPLC has amassed a war chest to fund its left-wing activism totaling $570 million as of October 2020. Its holdings are, to put it mildly, highly unusual for an American non-profit company. Among investments listed in its 2020 financial statements are $162 million in non-U.S. equity funds, $23 million in “arbitrage funds,” $89 million in private equity funds, and $7 million in long-short funds. The coalition letter observed, “The SPLC looks more like a hedge fund than a public interest legal and political activist group.”
Amy Sterling Casil, the CEO of the consulting firm Pacific Human Capital, remarked regarding its transfer of millions of dollars to foreign bank accounts that “I’ve never known a US-based nonprofit dealing in human rights or social services to have any foreign bank accounts.” She added, “I know of no legitimate reason for any US-based nonprofit to put money in overseas, unregulated bank accounts” and called the SPLC’s practice “unethical.” The watchdog group CharityWatch gave the SPLC a grade of “F.”
In addition to Abudu’s shady professional associations, she consistently has taken far-left positions in litigation. Perhaps the most prominent were cases Abudu argued while at the ACLU’s Voting Rights Center, for example, making unsuccessful challenges to felon voting provisions in Mississippi, Arizona, and Tennessee. As legal director of the ACLU of Florida, Abudu unsuccessfully challenged the state’s requirement that a felon’s voting rights could be restored only after all fines, fees, and restitution imposed as part of the felon’s sentence had been paid. The Eleventh Circuit, sitting en banc, found no evidence to support Abudu’s claim of intentional racial discrimination. Undeterred, Abudu joined several other groups to submit Florida’s law to the United Nations Committee on Human Rights for review of human rights violations.
Since joining the SPLC, Abudu has maintained her ties with the ACLU of Florida and continued her losing track record in court with an unsuccessful Eighth Amendment claim against Florida’s Department of Corrections for not fully accommodating a transgender inmate’s “social-transitioning” requests.
The Biden administration and congressional Democrats continue to make scurrilous allegations of suppression of voting rights in Republican-led states, cherry-picking them over Democrat-led states with more stringent election rules and brazenly trying to weaponize the courts to do their partisan bidding. And Biden’s Department of Justice has specifically targeted Georgia, where Abudu would sit if confirmed, alleging the state’s recent election law violated the Voting Rights Act and engaged in racial discrimination. If you believe a Judge Abudu would fairly evaluate Georgia’s voting integrity laws according to the rule of law rather than her own agenda, I have a bridge to sell you.
1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”
Under Douglas’s rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”
Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.
2016—Rarely if ever has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception.
In G.G. v. Gloucester County School Board, a divided panel of the Fourth Circuit defers to the Obama administration’s radical claim that federal law requires any school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.” Never mind that the Obama administration never actually interpreted the particular 1975 regulation in the manner that the panel majority imagined it owed deference to. Never mind that assigning facilities and programs on the basis of biological sex disregards—and thus clearly does notdiscriminate on the basis of—gender identity.
In August the Supreme Court will block the Fourth Circuit’s ruling from taking effect, and in late October it will grant the school board’s certiorari petition. In March 2017—after the incoming Trump administration repudiates the Obama’s reading of federal law—the Court will vacate the Fourth Circuit’s ruling and remand the case for further consideration. But in 2020 the Fourth Circuit will again rule in the plaintiff’s favor, and after the Supreme Court denies review of that decision, the plaintiff will extract a lucrative settlement from the school district.
There are also several important matters that the OLC opinion fails to address. Given the evident rush in which the opinion was issued, this is perhaps understandable. But the gaps present some troubling questions about how the OLC advice might operate in practice.
3. In observing (correctly, in my view) that the president may make “prospective nominations” for “anticipated vacancies on the Supreme Court,” OLC does not clarify the bounds of an anticipated vacancy, nor does it address whether the president may make prospective nominations for vacancies that fall outside the bounds of what is “anticipated.”
In its 1968 opinion, OLC stated:
It should be noted that anticipated vacancies [for judicial or executive-branch positions] may be grouped into two categories: First, those that will take effect on a day certain; e.g., when a resignation is submitted as of a specific date, or a statutory term is about to expire. Second, those that will take effect upon fulfillment of a condition; e.g., when the removal or elevation of the incumbent takes effect, or the appointment and qualification of his successor. Nothing in the Constitution prevents advance nomination and confirmation to fill either category of anticipated vacancies.
This statement might well be read to imply that the Constitution prevents “advance nomination” for a future vacancy that falls outside of these two categories. But, alternatively, it might simply be that the settled practice of a president’s making advance nominations only for these two categories of anticipated vacancies reflects a sensible accommodation of the institutional interests of the president and the Senate—an accommodation that a president and a compliant Senate might choose to depart from.
4. In advising that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office,” OLC does not explicitly state that prospective appointments are not permissible for vacancies that are anticipated to occur after the president’s current term of office. Is that in fact OLC’s position? And, if so, what are the constraints on anticipating a vacancy?
These questions interact in important ways with the question whether a president may make an advance nomination to a vacancy that falls outside the two categories of anticipated vacancies in item 3. Might a president, for example, assess that a particular justice seems to be in poor health, nominate a successor to that justice’s position, and, upon the Senate’s confirmation of that nomination, prospectively appoint the successor?
5. What happens if the president makes a prospective appointment to a vacancy but the vacancy does not actually occur during the president’s current term of office? Assume, for example, that Justice Breyer changes his mind and decides not to retire. Does Breyer’s prospective appointment of Jackson to the Breyer vacancy expire on January 20, 2025? Or does it remain potent, ready to spring into full operation whenever Breyer does vacate his seat?
On the one hand, the OLC opinion’s core conclusion that Biden, by making a prospective appointment of Jackson, would complete his role in the appointment process makes it puzzling to think that his appointment would somehow expire when his term ends. If that were the case, the Supreme Court could have dismissed Marbury v. Madison on the ground that Marbury’s failure to accept President Adams’s appointment while Adams was still president meant that the appointment expired when Thomas Jefferson took office. I am not aware of any precedent that an unaccepted appointment expires when the appointing president’s term expires.
On the other hand, the OLC opinion embraces the proposition that the president “could not ‘forestall the rights and prerogatives of [his] own successors by appointing successors to offices expiring after [his] power to appoint has itself expired.’” So this proposition would seem to mean that Biden’s prospective appointment of Jackson would expire on January 20, 2025 (at least if Biden is not elected to a second term). Or does it mean that Biden would “forestall the rights and prerogatives” only if he made a prospective appointment to a vacancy that he did not anticipate would occur during his term?
Depending on how this and the preceding questions are answered, a president might be able to make a batch of nominations to, say, the next ten or twenty associate-justice vacancies that will occur, have a compliant Senate confirm those nominations, and then make prospective appointments that will spring into operation over a course of many years, with the appointed individuals filling new vacancies as associated justices whenever such vacancies arise.
6. If the OLC opinion is correct and Biden could make a prospective appointment of Jackson, how must such an appointment be worded?
As I have noted, when the president uses the conventional language of the judicial commission, he states that he thereby “authorize[s] and empower” the appointed judge “to execute and fulfil the duties” of the judicial office. Without some amendment, such language in a commission making a prospective appointment would seem to be lie and thus a nullity.
According to the 1968 OLC opinion, President Grant’s commission of Edwin M. Stanton on December 20, 1869, specified that it would “take effect on or after February 1 ,” the date on which Justice Grier’s resignation would take effect, and President Harding’s commission on September 5, 1922, of George Sutherland to replace Justice Clarke likewise stated “commencing September 18, 1922,” the date on which Clarke’s resignation would take effect.
What does the commission that Biden has apparently issued Jackson actually say? And if it doesn’t similarly specify that it takes effect only upon Breyer’s retirement (or on a specific date that ends up being after Breyer’s retirement), is it nonetheless somehow valid?
* * *
As I have previously explained, it appears that Biden resorted to a prospective appointment of Jackson in order to try to foreclose the farfetched possibility that the Senate might somehow adopt a motion to reconsider its confirmation of Jackson. When Breyer does retire, Biden should issue Jackson a second commission in order to eliminate any question over the legitimacy of her appointment as an associate justice.
On further review, the Office of Legal Counsel’s opinion on President Biden’s purported authority to “prospectively appoint” Judge Ketanji Brown Jackson to the Supreme Court is much worse than I first thought.
In a post on Friday evening, I offered some initial doubts about the soundness of OLC’s advice that Biden could, in the immediate aftermath of the Senate’s confirmation of Jackson’s nomination, complete his role in the appointment process by issuing a commission to Jackson that would take effect when Justice Breyer retires. In this post and a follow-on, I will expand my critique of the OLC opinion. (I won’t reiterate here my argument that the OLC opinion contradicts a passage in Marbury v. Madison, and I instead refer interested readers to point 2 of that previous post.)
To be clear, while I am very skeptical of OLC’s bottom line, I am not contending here that it is clearly wrong. I am instead maintaining that the reasoning in the OLC opinion is deeply defective and unpersuasive.
1. The OLC opinion prominently asserts:
Our Office has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office. See Memorandum for Harlington Wood, Jr., Associate Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delay in Induction of Judge into Office Following His Confirmation by the Senate (Nov. 27, 1970) (“Rehnquist Memorandum”).
To my surprise, it turns out that that assertion is blatantly wrong.
The Rehnquist Memorandum that OLC cites was made public on Friday evening. As its title indicates, it addresses whether two United States Attorneys who had been “recently confirmed by the Senate to be district judges” could have “their ascension to the bench … delayed” so that they could complete their “work on important criminal prosecutions.” President Nixon had issued a judicial commission to one of the two confirmed nominees but not to the other. Both nominations involved newly created seats, not seats still occupied by an incumbent.
The Rehnquist Memorandum not only does not advise on the matter of prospective appointments. It does not even offer a word in passing on the matter. So I do not see how OLC can defend citing the Rehnquist Memorandum (and only the Rehnquist Memorandum) as support for the proposition that OLC “has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” (I also don’t see how anything in the Rehnquist Memorandum provides even implicit support for that position.)
A cynic might suspect that OLC is trying to hide behind Rehnquist’s conservative bona fides to deflect scrutiny of its position.
2. The OLC opinion also asserts:
The Office [OLC] has previously noted that historical practice supports the President’s authority to make prospective appointments of judicial officers, including an Associate Justice of the Supreme Court.
This assertion is also false. The opinion cites two previous opinions in support of this assertion. Let’s start with the second one, the Rehnquist Memorandum. Again, there is not a sentence in the Rehnquist Memorandum that “noted that historical practice supports the President’s authority to make prospective appointments of judicial officers” or that even had anything remotely to do with the matter. The new opinion claims that the Rehnquist Memorandum “discussed” one instance of such an appointment, but as its own account reveals, the instance instead involved “a judicial officer [who] ha[d] been appointed many months before taking the oath and entering on the duties of the office.” In other words, rather than involving a prospective appointment, it involved an ordinary immediate act of appointment by the president and the confirmed nominee’s delay in accepting the appointment.
The other previous OLC opinion that the new opinion cites is a 1968 opinion on the power of President Johnson to nominate Abe Fortas to be chief justice (which is available as an attachment, pp. 154-169, to a 1979 opinion). Here too, the subject matter of the opinion has nothing to do with prospective appointments. It instead concerns the president’s power to make a nomination to a seat that is not yet vacant. It therefore bears instead on the (to my mind, uncontroversial) point that Biden had the power to nominate Jackson to Breyer’s seat.
OLC states that the 1968 opinion “provided several examples of judges who were appointed by the President prior to the effective date of the outgoing official’s resignation.” That statement is correct, as several can mean three. And those examples do appear to provide support for the proposition that presidents have made prospective appointments before, including to the position of associate justice.
But I do not think that it is correct to contend that the 1968 opinion “noted that historical practice supports the President’s authority to make prospective appointments.” Rather, the 1968 opinion compiled the data on these and other judicial appointments and lumped them all together as examples of nominations “in advance of the effective date of the resignation or retirement of the incumbent.” The 1968 opinion seems to take no particular note of, and certainly does not offer any comment on the issues raised by, the three instances that also happen to involve prospective appointments.
It’s also worth noting that each of those three instances involved the incumbent’s commitment to retire upon a specific date (that’s true of both of the associate-justice instances) or condition. By contrast, Breyer stated in January only that he “intend[ed]” his retirement decision to take effect at the end of the Court’s term, and he hedged even that mere statement of intention on the “assum[ption] that by then my successor has been nominated and confirmed.”
And of course there is the broader question whether previous actions by presidents provide meaningful evidence that a practice is constitutionally permissible or show instead that presidents sometimes acted unconstitutionally.
(I will note that the OLC opinion also cites a 1960 OLC opinion that apparently deals with “prospective appointments” to some fixed-term executive-branch offices. That opinion does not appear to be publicly available, and if it in fact provides meaningful support for the new OLC opinion, it would be odd that the new OLC opinion so badly misuses the Rehnquist Memorandum and the 1968 opinion.)
1990—Dissenting in Osborne v. Ohio,Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.
1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge 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 disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns 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.”
2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.
2018—A Sixth Circuit panel rules (in Planned Parenthood v. Himes) that an Ohio law that bars the state department of health from funding organizations that perform or promote nontherapeutic abortions violates a Planned Parenthood affiliate’s constitutional rights.
In March 2019, the en banc Sixth Circuit, by a vote of 11 to 6, will repudiate the panel’s reasoning.