Law & the Courts

This Day in Liberal Judicial Activism—June 18

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1973—By a vote of five justices, the Supreme Court rules in United States v. SCRAP that plaintiffs, including a group of law students (“Students Challenging Regulatory Agency Procedures”), have standing to challenge the Interstate Commerce Commission’s decision not to suspend a 2.5% freight rate increase.  

What is the alleged injury on which their standing is based? As the majority sums it up, the rate increase “would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area,” thus causing the plaintiffs economic, recreational and aesthetic harm. The majority even acknowledges that the case presents “a far more attenuated line of causation to the eventual injury” than in a case the previous year in which the Court found no standing, and it further observes that “all   persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here.” 

1980—Mere months before losing his bid for re-election, President Jimmy Carter appoints ACLU activist Ruth Bader Ginsburg to the D.C. Circuit.  

Law & the Courts

Iowa Supreme Court Abortion Ruling a Reminder of the Importance of State Courts

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Today the Iowa Supreme Court issued a groundbreaking decision in Planned Parenthood of the Heartland v. Reynolds that at least begins the process of getting that court out of the business of dictating abortion policy to elected officials under the guise of state constitutional law. Rejecting a challenge to Iowa’s required 24-hour waiting period prior to getting an abortion, the court overruled a 2018 precedent striking down a 72-hour waiting period under a stringent “strict scrutiny” standard for abortion.

Another of the court’s abortion precedents, from 2015, recognized the U.S. Supreme Court’s “undue burden” test developed in Planned Parenthood v. Casey as also applying under the state constitution. Under today’s decision, written by Justice Edward Mansfield, that remains the applicable test in Iowa “[f]or now,” but perhaps not for long as the court explicitly stated that “the legal standard may . . . be litigated further.” The court seems open to ridding itself of that muddled standard upon further litigation, even going as far as to openly suggest that the pending Dobbs v. Jackson Women’s Health Organization case in the U.S. Supreme Court, once decided, “may provide insights that we are currently lacking.”

Read Ed Whelan’s post for an incisive review of today’s decision. I will add that this is a reminder of the importance of preparing for the legal landscape that would follow the overturning of Roe v. Wade and Casey. Many of the highest courts among the fifty states are dominated by activist judges who would readily concoct a right to abortion if they have not done so already. In many states, there is a major risk that judges will feel emboldened to override by judicial fiat pro-life measures passed by elected officials.

For living constitutionalists, it does not matter that, as is the case with the U.S. Constitution, no state constitution enumerates a right to abortion. (At least for now; a Vermont ballot measure, if approved this year, would make that state the first to do so.) State court judges who feel unanchored to legal text and original meaning have long shown the same tendency to blur their policy preferences into law as the more familiar Supreme Court activists have. This has been visible on issues ranging from the death penalty to tort reform.

One of the nation’s most prominent living constitutionalists encouraged this trend. In a 1977 law review article, Supreme Court Justice William Brennan, finding himself on the losing side of an increasing number of cases on the high court, famously called upon “state courts to step into the breach” with their own, more expansive interpretations of rights under state constitutions and statutes.

This remains a rallying cry on the Left in recent times. And of course, their principal grievance with originalist judges is not with expansive readings of rights that are actually in the Constitution. Living constitutionalists have been amassing a track record of trying to shrink such rights, including notably religious liberty and political speech under the First Amendment and the right to keep and bear arms under the Second Amendment. Where they would like to be more expansive is in fact in the invention of rights that constitutions, state and federal, simply do not confer.

Abortion is the consummate example of a right concocted out of thin air. No standing precedents of the Court are more highly charged—or less persuasive—than Roe and Casey. Once the Court, barring the unexpected, overrules them in Dobbs, the challenge on the state level will become more pronounced as state supreme court judges face new temptations to overstep their bounds and impose their own versions of Roe v. Wade. This is why public vigilance about the composition of our courts must not be limited to the federal bench. For representative democracy to thrive, we need constitutionalist judges on state courts.

Law & the Courts

Iowa Supreme Court Overrules Pro-Abortion Precedent

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One down, one to go.

In a momentous ruling today (in Planned Parenthood of the Heartland v. Reynolds), the Iowa supreme court today repudiated one of its two recent rulings that confers protection on abortion under the state constitution, and it strongly signaled that the other ruling is in severe jeopardy.

The issue in the case was whether to affirm a lower-court ruling that held that a law providing a 24-hour waiting period for an abortion violated the state constitution. By a vote of 5 to 2, the supreme court reversed that ruling and remanded the case to the lower court. Justice Edward Mansfield’s lead opinion garnered a majority in all but one subpart; on that subpart, two members would have gone further than Mansfield goes now.

Some brief background (drawn from Mansfield’s opinion) on the two earlier rulings:

In 2015, the Iowa supreme court held that a statewide ban on telemedicine abortions violated the state constitution. The court found it unnecessary to decide whether the state constitution conferred even more protection for abortion than the federal Roe/Casey regime did, as it found that the ban on telemedicine abortions violated Casey’s undue-burden test, which the state for some reason conceded applied under the state constitution.

In 2018, the Iowa supreme court held that abortion was a “fundamental right” under the state constitution and that a 72-hour waiting period for abortion could not satisfy the “strict scrutiny” that infringements on that supposed right were subject to.

Mansfield’s majority opinion overrules that 2018 ruling and rejects the notion that abortion is a “fundamental right” under the state constitution. But in a plurality portion of his opinion, he declines to decide what constitutional standard—e.g., “undue burden” or deferential rational-basis review—should replace strict scrutiny. Because the state hadn’t taken a position on that question, he deemed it appropriate to leave the “undue burden” test on remand as the governing standard “[f]or now.” At the same time, he expressly left open that the legal standard “may also be litigated further” in the case.

In a separate opinion, Justice Matthew McDermott, joined by Justice Christopher McDonald, would have gone further by overruling the 2015 ruling and applying rational-basis review to laws regulating abortion.

Here are some noteworthy excerpts from Justice Mansfield’s opinion (with PPH II being his shorthand for the 2018 ruling) that would seem to apply as well to future reconsideration of the undue-burden standard:

Textually, there is no support for PPH II’s reading of the due process clause as providing fundamental protection for abortion. Article I, section 9 states, “[N]o person shall be deprived of life, liberty, or property, without due process of law.” Iowa Const. art. I, § 9. Section 9 doesn’t speak in terms of absolutes. If liberty cannot be limited without due process of law, the logical implication is that liberty can be limited with due process of law. Certainly that conclusion seems correct when there are important interests—such as life itself—on both sides….

Historically, there is no support for abortion as a fundamental constitutional right in Iowa. As the PPH II dissent pointed out, abortion became a crime in our state on March 15, 1858—just six months after the effective date of the Iowa Constitution—and remained generally illegal until Roe v. Wade was decided over one hundred years later.…

Beyond its textual and historical flaws, PPH II is also flawed in its core reasoning. Constitutions—and courts—should not be picking sides in divisive social and political debates unless some universal principle of justice stands on only one side of that debate. Abortion isn’t one of those issues….

As part of his explanation why stare decisis principles don’t weigh heavily in favor of retaining the 2018 ruling, Justice Mansfield observed:

PPH II was overtly based on the notion of a “living” constitution…. To the extent PPH II viewed constitutional interpretation as an evolutionary process rather than a search for fixed meaning, it is hard now to argue that the evolutionary process had to end as soon as PPH II was decided. Does the Iowa Constitution get to “live” until 2018, at which point it must stop living?

Law & the Courts

This Day in Liberal Judicial Activism—June 17

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1963—In the course of ruling in School District of Abington Township v. Schempp that the Establishment Clause forbids a Pennsylvania law that requires that Bible verses be read at the opening of each day of public school, the Supreme Court imposes what religion-law scholar Steven D. Smith calls the “odd couple of principles—religious neutrality and governmental secularity— that have “bedeviled religion-clause cases ever since.” (As Smith explains, “as soon as we acknowledge that some or even most religions have a public dimension, with implications for public policy, a determinedly secular government is no longer religiously neutral.”) 

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.) 

2018—In their challenge (in Whole Woman’s Health v. Smith) to a provision of Texas law that would require them to bury or cremate fetal remains, abortion providers enlist the assistance of federal district judge David Ezra in harassing the Texas Catholic Conference of Catholic Bishops, which is not even a party to the litigation. On Father’s Day, Ezra issues an order giving the Texas Catholic Conference a mere 24 hours to turn over to the abortion providers some 300 internal Conference communications among the bishops and their staff. That’s on top of thousands of pages of documents the Conference had already provided. 

A Fifth Circuit panel, in blocking Ezra’s order, will find his assessment of the competing interests “hard to fathom.” 

Law & the Courts

En Banc Fourth Circuit Sharply Divides on Whether Charter School Is State Actor

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By a vote of 10 to 6 along ideological lines, the en banc Fourth Circuit ruled yesterday (in Peltier v. Charter Day School) that a public charter school in North Carolina violated the Equal Protection Clause of the Fourteenth Amendment when it adopted a dress code that required female students to wear skirts, skorts, or jumpers. The court divided sharply on the question whether a public charter school is a state actor subject to the Equal Protection Clause.

Judge Marvin Quattlebaum wrote the lead dissent. Here are some excerpts from the introduction to his dissent:

The question is not whether we like or don’t like Charter Day School’s requirement that female students wear skirts, skorts or jumpers, or whether we think the requirement is good or bad for female students. We face a legal question—is Charter Day School a state actor? …

Prior to today, neither the Supreme Court nor any federal appellate court had concluded that a publicly funded private or charter school is a state actor under § 1983. The majority, however, breaks that new ground. In my view, in deciding that a private operator of a North Carolina charter school is a state actor, the majority misconstrues and ignores guidance from the Supreme Court and all of our sister circuits that have addressed either the same or very similar issues. The immediate casualty of the majority’s decision is a small part of a dress code at a particular charter school. That is the least of my concerns. My worry is that the majority’s reasoning transforms all charter schools in North Carolina, and likely all charter schools in the other states that form our circuit, into state actors. As a result, the innovative alternatives to traditional public education envisioned by North Carolina when it passed the Charter Schools Act, and thus the choices available to parents, will be limited.

But the implications of the majority’s decision extend beyond even charter schools. By casting aside guidance from Supreme Court precedent, the majority significantly broadens the scope of what it means for the actions of a private party to be attributed to the state for purposes of a § 1983 claim. Frankly, it is hard to discern, much less define, the limits of what constitutes “state action” after the majority’s decision.

Law & the Courts

This Day in Liberal Judicial Activism—June 15

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1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.” 

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.” 

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.” 

Law & the Courts

Elephants and Habeas Corpus

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That’s not a post title I ever expected to write.

By a vote of 5 to 2, New York’s highest court, the New York Court of Appeals, ruled today (in In re Nonhuman Rights Project v. Breheny) that the petitioner Nonhuman Rights Project may not seek habeas corpus relief on behalf of Happy, an elephant at the Bronx Zoo, in order to transfer Happy to an elephant sanctuary.

In her straightforward majority opinion, Chief Judge Janet DiFiore holds that the common law writ of habeas corpus is a remedy available only to human beings. Happy is not a human being, and thus “while no one disputes that elephants are intelligent beings deserving of proper care and compassion,” habeas corpus relief can not be sought on Happy’s behalf.

In an interesting but discursive and unpersuasive 70-page dissent, Judge Rowan D. Wilson roams over a lot of terrain. Wilson acknowledges that Happy is not a human being (or a person). But in his view the writ of habeas corpus is available to Happy if Happy’s detention is “unjust”:

Because this appeal comes on a motion to dismiss, the legal question presented is whether the detention of an elephant can ever be so cruel, so antithetical to the essence of an elephant, that the writ of habeas corpus should be made available under the common law.

Wilson answers this question yes:

If we accept all of the information [submitted on Happy’s behalf] as true, Happy is a being with highly complex cognitive, social and emotional abilities. She has self-awareness, social needs and empathy. She also comes from a wild, highly social species whose bodies and minds are accustomed to traversing long distances to connect with others and to find food. Happy has established a prima facie case that her confinement at the Bronx Zoo stunts her needs in ways that cause suffering so great as to be deemed unjust.

In Wilson’s view, Happy is therefore entitled to a merits hearing on its habeas corpus petition, in which the court below “must undertake a normative analysis that weighs the value of keeping [Happy] confined with the value of releasing [Happy] from confinement.” Wilson has little doubt how that merits hearing should be resolved:

In Happy’s case, the value of the confinement to the Zoo and to society appears low or nonexistent: the Zoo decided in 2006 that it would end its elephant program, meaning it would accept no new elephants into the zoo. That decision strongly suggests that, whereas the value to the Zoo and society in displaying an elephant might have been substantial long ago, today that value is negligible, while at the same time (and relatedly), our appreciation for the fundamental qualities, abilities and needs of elephants has led us to understand the damage done to them by confinement in close, companionless quarters.

Wilson, I’ll note, also maintains that we confer rights on animals whenever we impose duties on ourselves with respect to those animals:

For example, 16 USC § 668 imposes a duty on humans not to capture or kill a bald or golden eagle, enforced by fines and imprisonment; that duty establishes a correlative right of bald and golden eagles to be free from capture by humans (except as authorized by permit). The Endangered Species Act (16 USC § 1531 et seq.) gives all animals falling within its purview the right not to be captured, harassed or harmed by humans, and imposes a correlative duty on humans.

In a second dissent, Judge Jenny Rivera broadly agrees with Wilson and opines that the “human/nonhuman binary relied upon by the majority” is unsound: “I conclude that history, logic, justice, and our humanity must lead us to recognize that if humans without full rights and responsibilities under the law may invoke the writ to challenge an unjust denial of freedom, so too may any other autonomous being, regardless of species.”

Those who discern a general inverse relationship between elite education and good judgment won’t be surprised to learn that Wilson is a graduate of Harvard College and Harvard Law School and that Rivera (who clerked for then-district judge Sonia Sotomayor three decades ago) has degrees from Princeton, NYU law school, and Columbia law school. By contrast, DiFiore graduated from C.W. Post College and St. John’s law school.

Law & the Courts

This Day in Liberal Judicial Activism—June 14

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1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”  

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.” 

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.  

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will “alter the balance” of the Court.   

Law & the Courts

This Day in Liberal Judicial Activism—June 13

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1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction.  

In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.” 

Some 17 months later, in a per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:  

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.  

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted. 

Law & the Courts

This Day in Liberal Judicial Activism—June 12

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2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters): 

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.  

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes: 

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.  

Law & the Courts

This Day in Liberal Judicial Activism—June 11

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1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.  

The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled. And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.) 

Law & the Courts

Excellent WSJ House Editorial on Abortion Polling

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 10

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

Law & the Courts

This Day in Liberal Judicial Activism—June 9

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

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

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

And then this killer understatement: 

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

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

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

Law & the Courts

Courting Assassination

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

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

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

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

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

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

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

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

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

* I’ve tweaked this sentence since original posting.

Law & the Courts

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

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

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

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

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

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

I hope you reflect as a great beacon to many.

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 7

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

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

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

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

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

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

Law & the Courts

Distorting Alito, Part 13,214

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

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

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

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

Let’s unpack Colb’s errors.

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

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

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 5

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

Law & the Courts

On the Constitutional Authority of Congress to Protect Unborn Persons

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

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

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

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

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

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

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

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

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

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

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

Law & the Courts

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

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(CastaldoStudio/iStock/Getty Images)

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

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

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

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

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

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

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

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

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

So, now to the arguments Adler does make.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 3

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

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

Law & the Courts

Feminists of the Past Abhorred Abortion

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

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

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

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 1

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

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

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

Law & the Courts

Las Vegas and Orange County Events

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

Law & the Courts

This Day in Liberal Judicial Activism—May 31

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

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

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

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

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

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This Day in Liberal Judicial Activism—May 30

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

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

Law & the Courts

This Day in Liberal Judicial Activism—May 29

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

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

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

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ACLU: ‘Egregiously Wrong’ Precedent Should Be Overruled

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

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

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

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

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

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

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This Day in Liberal Judicial Activism—May 28

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—May 27

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

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Research Shows No Historical Evidence of Right to Abortion

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

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

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

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

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

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

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

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

Law & the Courts

Judicial Bureaucrat Proposes Vulgar LGBTQ+ Reading List for Federal Judges

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

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

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

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

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

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

Law & the Courts

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

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

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

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

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

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

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

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

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

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

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

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

Law & the Courts

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—May 26

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

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

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

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Re: Michigan Abortion Shenanigans

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

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

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

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

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This Day in Liberal Judicial Activism—May 25

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

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

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

Law & the Courts

Kagan and Breyer Hail Common-Law Jurist Matthew Hale

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—May 24

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

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

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

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