In 1990, after months trying to get Henry Quade to respond to complaints about sewage and foul odors seeping from his house, state health department officials obtained a forcible-entry warrant. When they arrived at Quade’s house, Quade threatened “to get my gun and use it.” A team of police officers was called to the scene. When the officers entered the house, Quade fired a handgun at them. The officers shot back, killing Quade.
In a divided panel ruling in Alexander v. City of San Francisco, the Ninth Circuit, in a majority opinion by Judge Betty Fletcher, rules that the officers can be held liable for damages for excessive force “in creating the situation which caused Quade to take the actions he did.” In dissent, Judge Stephen Trott laments that the ruling “wreaks havoc on the Fourth Amendment.” He further observes, “If I were a police officer, I might reconsider my calling with this kind of misunderstanding of my job and inconsistent messages from the court.
Over the ensuing decades, the Ninth Circuit will apply this “provocation rule” in case after case even as other courts of appeals cast doubt on it. Finally, in 2017, a unanimous Supreme Court (in County of Los Angeles v. Mendez) will reject the Ninth Circuit’s provocation rule as “incompatible with our excessive force jurisprudence.”
The Fourth Circuit today denied en banc rehearing of the panel decision in March in United States v. Gary. Judge J. Harvie Wilkinson, joined by four of his colleagues, concurred in the denial of rehearing while slamming the panel decision:
I concur in the denial of rehearing en banc for one reason and one reason only. The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour. Many, many cases await the resolution of this question.
This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation. Is it eight—or nine—circuits that disagree with us? I have lost count, but the ranks are growing.
Here’s a quick summary of what’s at issue:
In 2017, Michael Andrew Gary pled guilty to two counts of possession of a firearm by a person previously convicted of a felony. The district court accepted his plea and sentenced him to 84 months on each count (running concurrently).
Under the Supreme Court’s 2019 ruling in Rehaif v. United States, the government would have had to prove not only that Gary possessed a firearm but also that he knew that he was a felon—that is, that he had “been convicted in any court of … a crime punishable by imprisonment for a term exceeding one year”—when he possessed it. That second element was not part of the governing law in the Fourth Circuit in 2017, so Gary was not informed of it when he pled guilty.
Gary obviously knew that he was a felon at the time of his offenses. As Judge Wilkinson recounts, he had previously been “convicted of second-degree burglary and two counts of assault, each punishable by more than one year in prison,” and he had “spend upwards of nine years in prison” for those offenses.
But the Fourth Circuit panel, in an opinion by Chief Judge Roger L. Gregory (joined by Judge Henry F. Floyd and Judge Stephanie D. Thacker), held that Gary “did not knowingly and intelligently plead guilty because he was not fully informed during his plea colloquy of the elements the government had to prove to convict him” and that this error was a “structural error” that is not amenable to “harmless error” analysis.
Judge Wilkinson argues that the Supreme Court has repeatedly “made clear that structural errors are few and far between” and “are to be limited … to the kind of error that by itself invalidates the criminal proceeding.” In his summary, “structural errors are innately infectious, necessarily impugning each part of a trial, rather than potentially consequential, depending on the facts and circumstances of a given case,” and it is for that reason that they “defy analysis by harmless or plain-error review.” “A Rehaif error comes nowhere near this level,” and “the guilty plea context is an especially poor one for recognizing an elements error as structural.” The Rehaif error in this case could not have affected Gary’s “substantial rights because there is no possibility, not to mention a reasonable probability, that Gary would not have pled guilty had he been informed of that which the government could so easily have proven.”
Let’s see if the Supreme Court tees this one up for summary reversal.
The final six months of President Donald Trump’s first term has begun. One way to assess where the judicial confirmation process stands is to compare it to the process at this point during President Barack Obama’s first term.
Confirmations: The Senate has confirmed 200 of President Donald Trump’s nominations to life-tenured federal courts (23.3 percent of total judgeships), compared to 153 (17.8 percent) at this point in the Obama administration. While Trump’s confirmation total is higher by itself, it is lower as a percentage of the judicial nominations he has made, 78.4 percent vs. 83.2 percent. The gap is much wider for the U.S. Court of Appeals: Trump has appointed 53 judges (29.6 percent) compared to Obama’s 30 (16.8 percent).
Vacancies: The 73 current vacancy total compares favorably to the 75 vacancies that existed in July 2012, with two caveats. First, 58.3 percent of vacancies today have been designated “emergencies,” a category used by the Administrative Office of the U.S. Courts for longstanding vacancies that have a particularly negative effect on judicial caseloads. These vacancies have been open for an average of 932 days. This compares to a level of 38.7 percent in July 2012, when judicial emergency vacancies had been open for an average of 756 days.
Second, while the overall vacancy totals are comparable, the number of vacancies on the U.S. Court of Appeals is not. For the first time in decades, not a single current or known future appeals court vacancy exists in the United States, compared to twelve appeals court vacancies (16 percent) in July 2012.
One interesting difference between then and now: On June 20, 2012, the president of the American Bar Association sent a letter to the Senate majority and minority leaders to say that the 73 vacancies at that time were “dangerously high” and constituted a “vacancy crisis.” Even though the same number of vacancies exists today, the ABA does not appear similarly concerned.
Pending Nominations: Today, a total of 45 nominations to life-tenured federal courts are pending in the Senate, 33 in the Judiciary Committee, and twelve listed on the full Senate’s executive calendar. At this point in 2012, 13 nominations to the U.S. District Court and four to the U.S. Court of Appeals were listed on the executive calendar.
Cloture Votes: Democrats have forced the Senate to take a separate vote to invoke cloture, or end debate, on 155 of the 200 judicial nominations (77.5 percent) confirmed so far for Trump, compared to five cloture votes (3.3 percent) for Obama nominations confirmed at this point during his presidency. This difference is even more significant because filibusters could be used to defeat nominations during Obama’s first term since cloture required 60 votes. Since November 2013, however, cloture requires only a simple majority, which means forcing the Senate to take cloture votes can delay, but not defeat, nominations.
Opposition: Trump’s judicial nominations have received an average of 22 votes against confirmation, compared to an average of 4.8 votes against confirmation of Obama’s nominations. The pattern during the Obama administration was similar to the longer historical picture; the judicial nominations of President Teddy Roosevelt through Obama received an average of 0.8 votes against confirmation.
The top ten Senate opponents of Trump’s judicial nominations have voted against them an average 81.3 percent of the time, while the top ten opponents of Obama’s first-term judicial nominations voted against them just 9.6 percent of the time. Eighty-five percent of Senate Democrats have voted against more than half of Trump’s nominations, but no senator voted against more than 14 percent of Obama’s.
Looking Forward: In 2012, the Senate Judiciary Committee held hearings on judicial nominations until December 12, and the Senate was confirming them until four days before Christmas 2012. Even though the historic norms of the judicial confirmation process have all been radically disrupted (see this new Heritage Foundation report), judicial vacancies are their lowest level since Trump took office. Confirming the nominations already pending in the Senate would give Trump the second-highest confirmation total in a single presidential term and would strengthen the judiciary’s ability to play its designed role in our political system.
2014—President Jimmy Carter’s sorry judicial legacy lives on. Thirty-five years after his appointment by Carter, 90-year-old Ninth Circuit judge Harry Pregerson—still in regular (rather than senior) status—authors a panel opinion that preliminarily enjoins the state of Arizona from implementing a policy that prevents a class of illegal aliens from obtaining driver’s licenses. The liberal diehard holds (among other things) that the policy likely violates the Equal Protection Clause.
The state policy concerns those illegal aliens subject to the Obama administration’s non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process.
In an opinion issued today in East Bay Sanctuary Covenant v. Barr, a Ninth Circuit panel ruled unanimously that plaintiffs—nonprofit organizations that represent asylum seekers—were entitled to injunctive relief against a rule jointly issued by the Department of Justice and the Department of Homeland Security. Under that rule, aliens who did not previously seek asylum in a third country through which they traveled on their way to the United States are generally barred from receiving asylum in the United States.
The panel members divided sharply, however, on the scope of injunctive relief to which the plaintiff organizations were entitled.
Judge William A. Fletcher opined that the harm that the plaintiff organizations suffered—namely, having to “overhaul their programs and pursue more complex and time-and-resource intensive forms of relief” for asylum seekers—was not limited to the Ninth Circuit, as the organizations also “suffer[ed] from their inability to represent, and to protect, aliens seeking to enter the United States through Texas or New Mexico.” For this and other reasons, he concluded that the district court’s injunction properly covered “the four states along our border with Mexico.”
Judge Richard R. Clifton, who concurred in the remainder of Fletcher’s opinion, wrote separately to state that he concurred only in Fletcher’s conclusion regarding the scope of the injunction. Circuit precedent in his view supported that conclusion, but he did not want to be misunderstood as “express[ing] agreement with or affirmative support for the reasoning behind the relevant portions” of those circuit precedents.
Judge Eric D. Miller dissented on the scope of the injunction. (See pp. 61-66.) He observed that “the injunction is broad not only in a geographic sense but also because it applies universally to everyone affected by the rule, not just to the plaintiffs in this case.” Universal injunctions “sidestep” rules that limit granting class-wide relief, and they conflict with the principle that—here he quotes Supreme Court precedent—“injunctive relief should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs.” Further, the plaintiff organizations do not have third-party standing to assert the rights of potential future clients. Miller would therefore “restrict the injunction along the lines suggested by the government, so that it prohibits the application of the rule only to asylum seekers who are bona fide clients of the plaintiff organizations.”
Despite the plaintiffs’ victory in the Ninth Circuit, the district court’s injunction will not go into effect. Last September, the Supreme Court entered an order blocking it not only for the pendency of the Ninth Circuit appeal but pending disposition of any petition by the government for a writ of certiorari.
For those keeping score at home: Fletcher was appointed by Bill Clinton, Clifton by George W. Bush, and Miller by Donald Trump.
1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence.
But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight.
2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right.
1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. (See This Day for February 14, 1992, for the rest of the story.)
1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?
Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)
2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.
2019—In Sierra Club v. Trump, a divided Ninth Circuit panel bars the Trump administration from reprogramming appropriated funds to build a border wall with Mexico. Specifically, the panel leaves in place, pending its consideration of the government’s appeal, a permanent injunction entered by a district court against the use of reprogrammed funds. In dissent, Judge N. Randy Smith concludes that plaintiffs have no cause of action (no legal claim) that they are entitled to invoke.
Three weeks later, the Supreme Court, by a 5-4 vote, will override the Ninth Circuit’s ruling and block the district court’s injunction from taking effect. (In June 2020, another divided panel of the Ninth Circuit will affirm the district court’s injunction.)
In the course of an oh-so-predictably tiresome New York Times house editorial on the Supreme Court’s abortion ruling in June Medical Services v. Russo, I was very surprised to run across this cheap whack at Louisiana solicitor general Elizabeth Murrill:
Another factor that’s nearly certainly at play here is that the lawyer who argued for Louisiana during oral arguments in March, State Solicitor General Elizabeth Murrill, is widely believed to have bungled the job, answering questions so ineptly that she gave the chief justice little to work with, even if he had been inclined to side with the court’s other conservatives.
The editorial goes on to contend that “the rights of millions of women hinged in part on someone having a bad day in court.”
I attended the oral argument in the case—more precisely, I ended up listening to the argument in the lawyers’ lounge—and Murrill’s oral argument struck me as well within the ordinary range of oral arguments at the Court. I’ve inquired of a couple of people who were in the courtroom, and their reaction was the same as mine. To be sure, the case was an especially difficult one to argue, both because it involved a complicated factual record and because Murrill faced a barrage of hostile questioning from the liberal justices. As is often the case, there is surely room for critics to engage in hindsight second-guessing of her argument. But the editorial board’s slam of Murrill strikes me as very unfair.
Note that the hyperlinked support for the editorial’s claim that Murrill is “widely believed to have bungled the job” is a single Slate piece by Mark Joseph Stern. Consistent with his usual level of propaganda, Stern contended that Murrill “lied” and made “falsifications of the record.” But a careful parsing of his charges shows that he was faulting Murrill for pushing back on the debatable inferences and characterizations of the record that the liberal justices were advancing as part of their attack on the favorable Fifth Circuit decision that Murrill was defending.
Why did the NYT editorial board go so strangely out of its way to disparage Murrill? I’ll hazard a conjecture. The editorial board presents itself as “a group of opinion journalists whose views are informed by expertise, research, debate and certain longstandingvalues.” Foremost among those values is a commitment to unrestricted abortion as a supposed protection of (in the words of the editorial) “the bodily autonomy of American women.” That a highly accomplished female attorney like Murrill would vigorously defend Louisiana’s law (as her job as state solicitor called for her to do) threatens the progressive fiction that all intelligent and educated women must be pro-abortion. Murrill must be punished for betraying the Sisterhood.
2019—In response to a decision by the Attorney General that aliens in removal proceedings awaiting action on their applications for asylum must generally be detained during the process, federal district judge Marsha Pechman (in Padilla v. ICE) enters a nationwide injunction requiring the United States to provide bond hearings for that class of aliens.
Dissenting from a Ninth Circuit panel decision affirming Pechman’s order in March 2020, Judge Bridget Bade will object that the Supreme Court “has repeatedly interpreted [a statutory provision] as a bar on classwide injunctive relief against” removal proceedings and that two other federal appellate courts have so ruled with respect to the very circumstances of this case.
Coming on the heels of the uber-textualist opinion in Bostock, it is especially noteworthy that the Court as well as the dissenters in Espinoza ignored it — the text that is. As the Chief Justice wrote in the opening paragraph of the Court’s opinion, the Montana constitutional provision at issue barred public aid to any school “controlled by a ‘church, sect, or denomination’”. [My emphasis]. Neither the word “religion” nor cognates (such as “religious”) appears anywhere in the text of the state law. The Court and each of the Justices who wrote separately nonetheless treated the text as if it said “religion,” instead of “church, sect, or denomination.” “Religion” and “denomination” evidently are synonyms, as far as the Court is concerned. In fact, they are not. And they surely were not used as synonyms by precisely those 19th-century public figures whose actions the various Justices examined at length in their Espinoza opinions.
In general (and here quoting from historian Elwyn Smith’s fine work, Religious Liberty in the United States), “sect” was then predominantly used with respect to the various divisions within Christianity. It referred to “the spirit of quarrelsomeness and schism, precianism in theology, and refusal to collaborate in common evangelical enterprises.” “Sect” was almost synonymous with “denomination,” and it indicated the differences between, say, Presbyterians and Methodists. Any doubt that Catholicism was included within language like Montana’s — doubt arising from, among other sources, that Church’s refusal to consider itself a “sect” or a “denomination” — was removed by including the word “church.”
Saying that a school “controlled” by a “sect,” “denomination,” or “church” was ineligible for state aid did not, therefore, amount to saying — as the Espinoza Justices uncomprehendingly assumed it did — that “religious” or “religiously-affiliated” schools were ineligible. Indeed, one intended effect of “Blaine Amendments” such as Montana’s was to stymie aid to Catholic schools (which were indeed “controlled” by that “church”) while permitting it to “non-denominational” (that is: Protestant) private schools “controlled” by a board of directors which probably included a few ministers and some others among the “best men” of the locale. The non-denominationally Protestant public schools carried on unmolested by Blaine amendments, too.
A glance at the Blaine amendment confirms all this. The original version introduced by Congressman James G. Blaine in the House in December 1875 stated that “no money raised by taxation in any state for the support of any public schools or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect.” [Emphasis added here, and hereafter.] The version passed in the House of Representatives (by a 180–7 margin, with 98 abstentions) read in relevant part: “under the control of any religious or anti-religious sect, organization, or denomination, or wherein the particular creed or tenets of any religious or anti-religious sect, organization, or denomination shall be taught.” The final sentence of this version stipulated, however, that “[t]his article shall not be construed to prohibit the reading of the bible in any school or institution.”
A different version barely failed to attract the necessary two-thirds votes in the Senate. (The tally was 28–16 in favor.) New Jersey senator Theodore Freylinghuysen explained how the distinction which an oblivious Court missed was central to the whole enterprise: “Institutions supported by the money of all persuasions . . . are not to be made schools for teaching presbytrianism, or catholicism, Unitarianism, or Methodism, or infidelity, or atheism, and this article says so. But this article goes no further. There is nothing in it that prohibits religion as distinguished from the particular creeds or tenants of religious and anti-religious sects and denominations being taught anywhere.”
This “Blaine amendment” failed. Yet “Blaine amendments” proliferated. Starting with Colorado in 1876, Congress made it a condition of admission of new states to the Union that the proposed state constitution ban public aid to “sectarian” schools. The Congressional enabling act for Washington, for instance, required that the state constitution include a provision for the establishment of public schools “which shall be . . . free from sectarian control.” [My emphases.] Montana’s provision at issue in Espinoza owes its enactment to this same requirement. “Religion” as such is no part of this parade of laws.
Someone weaned on Bostock’s textualism might reply by parallel argument. Bostock reasoned that “sex discrimination” necessarily included the “transgendered” because the meaning of “transgendered” depended on the antecedent meaning of “sex”: a “transgendered” man is a woman who rejects her sex and “identifies” as male. In Espinoza the Court might have assumed (it did not say) that a body of people cannot be a “denomination”, for example, without being antecedently “religious”; after all, “sect” denotes a body of believers!
That latter point is true enough. But the whole mode of reasoning fails here as a way of reading laws, just as surely as it did in Bostock. For by these lights, a statute which stated that “children must be off the streets by midnight” would mean that everyone had to be home by then. After all, one cannot be a “child” without being antecedently a person; hence, “children” equals “all persons.”
I do not emphasize this distinction between “sect” and “denomination” and “church,” on the one hand, and religion on the other, in order to criticize the result in Espinoza. In fact, it is the right result (though not for the right reasons). I do not stress the distinction either to criticize Bostock. That case richly deserves to be criticized. But I do that (with my collaborator Dr. Paul McHugh) elsewhere. I emphasize the critical distinction between “sect” and “religion” for a different reason. It is that our whole constitutional tradition pertaining to church and state, at least up until the Supreme Court started in 1947 to obliterate that tradition, is unintelligible without it.
Yesterday the Supreme Court handed down a major victory for religious liberty and for people of faith as it eviscerated the insidious Blaine amendment for schools. In Espinoza v. Montana Department of Revenue, a 5–4 majority of the Court pushed back on a shameful, 150-year legacy of discrimination against religious schools in an opinion written by Chief Justice Roberts. He was joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.
In 2018, the Montana Supreme Court held that legislation that gave residents up to a $150 tax credit for contributions to a scholarship program violated the state’s “Blaine amendment.” Blaine amendments are anti-religious state constitutional provisions enacted in many states during the 19th century and early 20th century to prevent the government from funding Catholic schools. They have also been used to block funding to Jewish and Mormon schools, and Christian-run schools for freed slaves. The only reason the Montana court struck down the scholarship program was that it gave parents the choice of applying it to religious schools.
As Roberts explained for the Court, that is clearly inconsistent with the Free Exercise Clause of the First Amendment. The Court had articulated the relevant principle in Trinity Lutheran Church v. Comer (2017), where it held that an otherwise neutral and secular public benefit cannot be denied on account of an entity’s religious status. But the Court’s tradition of respecting parental decisions about their children’s education and religious upbringing goes back nearly a century to precedents like Pierce v. Society of Sisters (1925), which predates modern Free Exercise jurisprudence, and later Wisconsin v. Yoder (1972).
That is not to overlook another body of decisions over the years that applied the First Amendment’s other religion clause — the Establishment Clause — in a way that, as Justice Thomas described in a concurring opinion, “bordered on religious hostility.” As just one example, consider that in 1985, the Court had gone as far as to bar public school teachers from providing assistance at parochial schools, for fear they would “subtly (or overtly) conform their instruction to the environment in which they teach.” That decision, School District of Grand Rapids v. Ball, would be overruled twelve years later. Still, Thomas noted that the “Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.”
Justice Gorsuch joined Justice Thomas’s concurrence. Both agreed with the Court that identifying discrimination based on religious status was enough to decide this case, but added that there is no meaningful distinction between such status and religious conduct. Gorsuch eloquently elaborated in his own concurrence: “The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” The Court did not need to reach a conclusion on that distinction in this case, but the door is open for future decisions embracing an expansive protection of religious freedom.
Expect the four liberal justices to continue to dissent from any such effort. Their view of the religion clauses continues to constrict free exercise. Justice Breyer, who is known for taking muddled positions in this area, objected to the majority’s rigorous standard, advocating instead a “flexible, context-specific approach” in which judges have free rein. (And, consequently, reach confusing results.) Justice Sotomayor continued to disagree with Trinity Lutheran Church and left no doubt she would prefer the earlier, less protective standard for free exercise. In fact, she called the Court’s ruling “perverse” and downplayed its historical analysis.
Roberts did not mince words about the history of Blaine amendments. He incorporated into the Court’s opinion a twenty-year-old plurality opinion’s observation: “The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree.’”
Justice Alito wrote a concurrence that recounted in detail the Blaine amendments’ history as a vehicle for “virulent prejudice against immigrants, particularly Catholic immigrants.” He included in his opinion a notorious 1871 cartoon from Harper’s Weekly that depicted Catholic bishops as crocodiles preying on American children while a public school in the background crumbles. The movement to found common schools, which had roots in the first half of the 19th century, cannot be separated from nativism, Alito explained. It aimed to “inculcate a form of ‘least-common-denominator Protestantism’” through daily readings from the King James Bible, an affront to Catholics and non-Christians. “Catholic and Jewish schools sprang up because the common schools were not neutral on matters of religion.”
The justices in the majority have gone a long way toward blotting out the stain of religious bigotry that has permeated so much of the law in this area. They should be applauded for stating clearly that laws like Montana’s that treat people of faith like second-class citizens have no place under our Constitution.
In June Medical Services L.L.C. v. Russo, we see a stark contrast between Roberts past and Roberts present. That case involved a challenge to Louisiana’s law requiring doctors who perform abortions to have admitting privileges at a local hospital. The litigation raised questions about the Supreme Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt striking down a similar Texas admitting-privileges requirement and also about whether an abortion clinic and doctors have standing to challenge the statute on behalf of their patients, despite the law being designed to protect patients from unsafe clinics and abortionists.
Roberts understands the purpose of such laws. After all, he had voted to hold the similar Texas law constitutional. He joined Justice Alito’s dissent that eviscerated the Court’s logic and recognized what was at stake, citing the atrocities of Kermit Gosnell. Laws like those in Texas and Louisiana, however they vary in application in each state, were motivated substantially by the desire to avoid the kind of nightmarish conditions under which Gosnell operated.
June Medical Services stoked concerns about whether the Court would once again revert to the “abortion distortion” — ignoring normal rules of procedure in the context of abortion, treating the practice as the preeminent constitutional right, and behaving like our nation’s de facto medical board. Unfortunately, that is precisely what did happen — not because of the votes of either of the two junior justices who were not on the Court in 2016, but because Roberts changed his position, giving the liberal bloc a majority.
While the four liberal justices produced a plurality opinion that went out of its way to replicate the shoddy analysis of Whole Woman’s Health, Roberts concurred in the judgment separately. Instead of going deeply into the merits, the chief justice wrote to explain that the doctrine of stare decisis — letting erroneous prior decisions stand — compelled him to follow the 2016 precedent, even though he had dissented and “continue[d] to believe that the case was wrongly decided.”
Of course, no justice believes that prior decisions must never be overturned. Tellingly, Roberts’s discussion of stare decisis cited Payne v. Tennessee (1991), where the Court overruled two- and four-year-old precedents, and Janus v. State, County, and Municipal Employees (2018), where he joined the Court’s opinion overruling a 41-year-old precedent. So what is sacrosanct about a four-year-old precedent he felt was wrongly decided? Roberts never tells us. He did not embrace the abortion distortion previously: In 2007, he joined the Court to uphold a federal ban on partial-birth abortion in Gonzales v. Carhart, even though the Court had struck down another partial-birth ban seven years earlier.
This time, the chief decided to play politics. As Justice Gorsuch noted in his dissent: “To arrive at today’s result, rules must be brushed aside and shortcuts taken.” Gorsuch also joined Justice Alito’s dissent, which accused the Court’s fragmented majority of applying “an abortion-only rule.” The Louisiana regulation was on even stronger legal footing than the Texas regulation at issue in Whole Woman’s Health. While the two statutes were nearly identical, in Louisiana it is simpler for doctors to get admitting privileges, and if clinics were forced to close, women would not have to drive as far as in Texas to get to an alternate clinic. The legislature also had a much stronger record of health violations regarding in-state clinics, including some of the plaintiffs in the case, and of serious medical problems when women were unable to get swift hospital treatment after experiencing abortion complications.
The majority also extended the “abortion distortion” to stretch third-party standing rules so that the plaintiffs could make a challenge based upon an asserted right that supposedly belongs to women seeking abortions. Alito noted the “blatant conflict of interest between an abortion provider and its patients” since the former “has a financial interest in avoiding burdensome regulations” while the latter “have an interest in the preservation of regulations that protect their health.” Future Gosnells will be grateful that position did not command a majority.
Thomas, for good measure, wrote a separate dissent discussing further the lack of pedigree for third-party standing and calling Roe v. Wade “grievously wrong” to begin with. In another separate dissent, Justice Kavanaugh, who like Thomas had joined most of Alito’s dissent, noted that when Roberts’s opinion was read next to those of the four dissenters, it amounted to a rejection of the cost–benefit standard of Whole Woman’s Health.
So much for stare decisis. But in a perverse way, that result adopts the spirit of Planned Parenthood v. Casey’s own odd conception of stare decisis. After all, the 1992 precedent had, in the name of stare decisis, rejected Roe’s trimester framework and overruled other abortion precedents from 1983 and 1986. And as Alito pointed out, Whole Woman’s Health had altered Casey’s standard with its “bulldozer” approach seeking to “flatten legal rules that stand in the way.”
Roberts’s arbitrary application of stare decisis to preserve a four-year-old precedent he continues to regard as wrongly decided does nothing to clear away the fog.
What broader lessons might be drawn from Chief Justice Roberts’s invoking—or, if you prefer, hiding behind—stare decisis to justify his vote in June Medical?
One lesson that folks on the Left are drawing from this and other recent votes by Roberts is that bullying him pays big dividends. Whether or not that is right as an explanation for his votes, it’s certainly reasonable.
Indeed, the Chief Justice’s professed concerns over the Supreme Court’s perceived legitimacy might well amount to having a “Kick Me” message tattooed on his forehead. The more the Left squawks, the more the Court’s legitimacy is said to be at stake.
The Court’s legitimacy as an institution ought to be a byproduct of its reasoned decisionmaking and its imperviousness to political influence. But if, as, alas, often appears to be the case, the Chief is instead, consciously or otherwise, deciding how to vote based on whether and how he imagines a case’s result will affect the Court’s legitimacy, he is engaged in a thinly disguised political exercise that empowers his most implacable critics on the Left and that ought to operate to discredit the Court.
Another reasonable lesson to draw is that the Chief is remarkably skittish about confronting what ought to be one of his major tasks: overturning the Roe/Casey regime and restoring abortion policy to the states. The Chief surely knows that it is Roe, more than any other modern ruling, that has politicized the judiciary and deformed American politics.
To be sure, there was little progress that the Chief could make against the Roe/Casey regime while Justice Kennedy was still on the Court. But after Kennedy’s replacement by Justice Kavanaugh, the Chief should have been looking for a good opportunity to begin the process of dismantling Roe. A certiorari petition filed by the state of Indiana in the fall of 2018, raising the question whether a state may prohibit abortions motivated solely by the race, sex, or disability of the fetus, presented such an opportunity, but the Chief seems to have been part of a dubious compromise to deny review.
So, as was entirely foreseeable, the first abortion case for the reconstituted Roberts Court ended up being June Medical. That case was a much less attractive vehicle for making headway against Roe, and the Chief’s joining with the liberals means that no headway at all was achieved.
1976—By a 5-4 vote, the Court rules in Singleton v. Wulff that two abortionists challenging limitations on Medicaid funding of abortion had standing to assert not only their own rights but also the rights of their patients. This expansion of third-party standing will fuel litigation against abortion regulations for decades to come.
1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy races to the Senate floor to launch a viciously false attack on Bork:
Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….
The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination.
2002—Federal district judge Jed S. Rakoff rules (in United States v. Quinones) that the federal death penalty is unconstitutional. In October 2002, a unanimous Second Circuit panel, in an opinion by Judge José A. Cabranes (a Clinton appointee), will reverse Rakoff’s ruling.
Montana parents like Randi Meyer had something to celebrate Tuesday. In Espinoza v. Montana Department of Revenue, the Supreme Court toppled a barrier that for more than a century has handicapped Catholic schools in Montana and other states and discriminated against parents like Randi searching for a better education for their kids.
Randi, mom to three boys, is the sole means of support for her family since a back injury left her husband Scott unable to work. Two of Randi’s boys have special learning needs and struggled at their public school. St Joseph’s K-8 Catholic school in Missoula had a much better learning plan for them. Thanks to tuition assistance and great sacrifice on their part, Randi and Scott have been able to send all three boys to St. Joe’s. But the Meyers hope their boys can access government-endorsed tuition scholarships after Tuesday’s 5-4 Supreme Court decision in Espinoza. The high court clarified that, contrary to the ruling of Montana’s highest court, a modest tuition-assistance program must be available for use at all private schools, including religious ones.
Back in 2015, the Montana legislature enacted a tax-credit scholarship program. It offered a dollar-for-dollar tax credit of up to $150 for donations to private organizations funding tuition scholarships for private-school students. In rules for the program, the state’s revenue department excluded religiously affiliated schools from the tuition assistance. It pointed to a provision in Montana’s constitution — a state Blaine amendment — prohibiting public money for any “sectarian” purpose.
Montana’s ban on public aid to “sectarian” schools and institutions traces back to a period of intense anti-Catholic animus across the United States in the 19th century. Many non-Catholics supported barring government funding of Catholic “sectarian” schools at a time when public schools were overwhelmingly and explicitly Protestant. The “state Blaines” mirror House speaker James G. Blaine’s unsuccessful proposal to include a funding ban in the U.S. Constitution’s First Amendment. Checked at the federal level, “no aid” language found its way into Montana’s 1884 territorial constitution and the 1889 state constitution. Montana was not alone. Blaine amendments are tucked in the constitutions of more than 25 states. Over time, they’ve been used to bar state funding of all religious schools, not just Catholic schools. Until Tuesday.
Kendra Espinoza and two other Montana moms with kids at Christian schools objected to the state’s exclusionary rule and filed suit. The state high court agreed with the tax department and, astonishingly, invalidated the entire program. These moms, however, wouldn’t give up. They sought relief in our nation’s court of last resort, the U.S. Supreme Court. Numerous friends of the court filed briefs in support of Espinoza, et al. Among them were Randi Meyer and other Montana Catholic School parents whose amicus brief shared their personal stories of how Catholic schools have benefited their children and their families.
Five years after state lawmakers passed the private-school scholarship program, the U.S. Supreme Court found that it’s simply unconstitutional for a state to exclude a school from a private-school funding program because of the school’s religious character. “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” Chief Justice John Roberts wrote for the majority. “The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”
The state claimed that general school aid could be used for religious ends by some recipients. The Supreme Court, however, has consistently held that a state does not violate the Establishment Clause when religious groups have access to neutral governmental programs that are generally open to broad classes of participants. As Roberts made clear in Tuesday’s opinion, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”
Espinoza ends state-sanctioned religious discrimination in education. It gives children from low-income families a better chance to benefit from Catholic schools. As parents like Randi and Scott Meyer attest, Catholic schools are often the only lifeline available for students not well-served by their local public school. By effectively burying the Blaines, the Supreme Court’s decision also empowers states to respond to the danger of Catholic and other private-school closures. This comes none too soon, as Catholic schools across the country are struggling to keep their doors open.
In this week’s Espinoza decision, the Supreme Court removed a great stain on our nation’s history, but what it did for our present and future may be more important. It enhanced the ability of low-income students, such as Randi Meyer’s boys, to attend Catholic schools using government-endorsed private-scholarship funds. A welcome victory for religious freedom, countless American families, and our country’s Catholic schools.
In addition to joining the Chief Justice’s majority opinion (summarized here) in Espinoza v. Montana Department of Revenue, Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Here is a summary of their opinions.
While this case involves the Free Exercise Clause, not the Establishment Clause, the Court’s mistaken interpretation of the Establishment Clause continues to hamper Free Exercise rights.
Under the modern view of the Establishment Clause, the government must treat all religions equally and treat religion equally to nonreligion. This view is unmoored from the original meaning of the Establishment Clause. Under its original meaning, the Establishment Clause protects states and their citizens from the imposition of an established religion by the federal government. Even if it were later incorporated by the Fourteenth Amendment against the states, it would protect only against an “establishment” of religion as understood at the founding: coercion of religious orthodoxy and of financial support by force of law and threat of penalty.
The Court’s overly expansive understanding of the Establishment Clause has led to a cramped interpretation of the Free Exercise Clause. Under this Court’s current approach, state and local governments may rely on the Establishment Clause to justify policies that others wish to challenge as violations of the Free Exercise Clause.
Regardless of the motivation for the no-aid provision, its application here violates the Free Exercise Clause. Nevertheless, the provision’s origin is relevant under the decision we issued earlier this year in Ramos v. Louisiana, holding that Louisiana and Oregon laws allowing non-unanimous jury verdicts in criminal trials violated the Sixth Amendment. The majority in Ramos emphasized that the states originally adopted those laws for racially discriminatory reasons. I argued in dissent that this original motivation, though deplorable, had no bearing on the laws’ constitutionality because such laws can be adopted for non-discriminatory reasons, and both States readopted their rules under different circumstances in later years. But I lost, and Ramos is now precedent. If the original motivation for the laws mattered there, it certainly matters here.
Montana’s no-aid provision was modeled on the failed Blaine Amendment to the Constitution, which was prompted by virulent prejudice against Catholic immigrants. (Pp. 2-7.) Montana’s claim that the provision merely reflects a state interest in preserving public schools ignores that the public-school (or common-school) movement at the time was itself anti-Catholic. (Pp. 7-10.)
It is also not clear that the anti-Catholic animus was scrubbed from the no-aid provision when it was re-adopted at Montana’s constitutional convention in 1972. (Pp. 10-12.)
Any jurisprudence grounded on a status-use distinction seems destined to yield more questions than it answers. [Majority opinion leaves open whether this is a meaningful distinction.] This distinction shouldn’t matter under the Free Exercise Clause. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly. Our cases have long recognized the importance of protecting religious actions, not just religious status.
The First Amendment protects religious uses and actions for good reason. What point is it to tell a person that he is free to be Muslim but he may be subject to discrimination for doing what his religion commands, attending Friday prayers, living his daily life in harmony with the teaching of his faith, and educating his children in its ways?
[Gorsuch doesn’t cite Employment Division v. Smith (1990), the controversial opinion holding that laws that substantially burden religious exercise don’t violate the Free Exercise Clause if they are neutral and generally applicable, and his opinion is best read, I think, as signaling his willingness to overturn that ruling.]
In its ruling today in Espinoza v. Montana Department of Revenue, the Supreme Court ruled by a 5-4 vote that the Montana supreme court violated the Free Exercise Clause when it applied a state constitutional no-aid provision to bar religious schools from receiving scholarship money under a state tax-credit program. Chief Justice Roberts, joined by the four (usually) conservative justices, wrote the majority opinion. Justices Thomas, Alito, and Gorsuch each wrote concurring opinions. Justice Ginsburg, joined by Justice Kagan, wrote a dissent, as did Justice Breyer (joined in part by Kagan) and Justice Sotomayor.
In this post, I will outline the reasoning of the Chief Justice’s majority opinion. Here is his framing paragraph:
The Montana Legislature established a program to provide tuition assistance to parents who send their children to private schools. The program grants a tax credit to anyone who donates to certain organizations that in turn award scholarships to selected students attending such schools. When petitioners sought to use the scholarships at a religious school, the Montana Supreme Court struck down the program. The Court relied on the “no-aid” provision of the State Constitution, which prohibits any aid to a school controlled by a “church, sect, or denomination.” The question presented is whether the Free Exercise Clause of the United States Constitution barred that application of the no-aid provision.
Here (in the Chief’s voice, so to speak, and with extensive direct borrowing) is the heart of the majority’s analysis:
Our 2017 decision in Trinity Lutheran v. Comer distilled our Free Exercise precedents into the unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny. Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools, and it also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.
Montana argues that Trinity Lutheran does not govern here because the no-aid provision applies not because of the religious character of the recipients, but because of how the funds would be used—for religious education. But whether or not that is a meaningful distinction, this case also turns expressly on religious status and not religious use. The Montana supreme court applied the no-aid provision solely by reference to religious status. That the no-aid provision might have the goal or effect of ensuring that government aid does not end up being used for religious purposes is immaterial. Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses. (Pp. 8-12.)
Locke v. Davey (2004) differs from this case in two critical ways. First, the state of Washington had merely chosen not to fund a distinct category of instruction: the essentially religious endeavor of training a minister to lead a congregation. Second, Locke invoked a historic and substantial state interest in not funding the training of clergy. (Pp. 12-16.)
Montana can’t satisfy the strict-scrutiny test. (Pp. 18-20.)
Montana argues that the Montana supreme court’s elimination of the scholarship program altogether means that there was no Free Exercise violation. According to Montana, now that there is no program, religious schools and adherents cannot complain that they are excluded from any generally available benefit. But it’s the Montana legislature that created the scholarship program. The Montana supreme court invalidated it pursuant to a state-law provision that expressly discriminates on the basis of religious status. When the Montana supreme court was called upon to apply the no-aid provision to exclude religious schools from the program, it was obligated by the federal Constitution to reject the invitation. Had it done so, it would not have proceeded to find a violation of that provision. And, in the absence of such a state law violation, it would have had no basis for terminating the program. Because the elimination of the program flowed directly from the Montana supreme court’s failure to follow the dictates of federal law, it cannot be defended as a neutral policy decision, or as resting on adequate and independent state law grounds. (Pp. 20-22.)
Chief Justice Roberts’s deciding vote in June Medical Services v. Russo against Louisiana’s admitting-privileges law for doctors performing abortions rests squarely on his conclusion that stare decisis—the legal doctrine of respect for precedent—requires that result. Specifically, even as he reiterates his belief that the Supreme Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt was “wrongly decided,” Roberts determines that the Louisiana law is “nearly identical” to the Texas law that the Court invalidated in Whole Woman’s Health and that it “burdens women seeking previability abortions to the same extent as the Texas law, according to factual findings that are not clearly erroneous.”
Roberts’s assertion that stare decisis requires his vote against the Louisiana law is difficult to take seriously.
As Justice Alito spells out in his dissent, the majority’s decision in Whole Woman’s Health was intensely fact-dependent. Indeed, it was on the basis of “changed circumstances” that the majority held that the post-enforcement challenge that it addressed did not involve the same claim as the pre-enforcement facial challenge that plaintiffs had first pursued and lost (and was therefore not barred under principles of res judicata). In June Medical, the plaintiffs were making a pre-enforcement challenge to Louisiana’s law. The district court’s factual findings were therefore little more than predictions about what the effects of the law would be, and, as Alito emphasizes, one of its key findings “was based on a fundamentally flawed test” regarding the “good faith” of abortion-clinic doctors in seeking admitting privileges at nearby hospitals. (See Alito dissent at 12-14; see also pp. 15-24 (evidence in record doesn’t show that doctors made serious efforts to obtain privileges.)
Further, even as Justice Breyer in his plurality opinion repeats the balancing test that he set forth in his majority opinion in Whole Woman’s Health, Roberts devotes pages to arguing that Breyer doesn’t really mean what he says in either case and that Breyer’s opinions therefore aren’t really a departure from the undue-burden standard set forth in Casey. (Roberts opinion at 5-11.) Roberts won’t take Breyer at his word because the precedential force of Whole Woman’s Health would be much weaker if Whole Woman’s Health itself departed from Casey.
More broadly, Roberts had never before applied such a wooden view of stare decisis. Indeed, as Ilya Shapiro discusses here, Roberts’s previous decisions to overturn precedents that were “much older and more entrenched” make his “capricious application of stare decisis [in June Medical] startling.”
Roberts tries to invoke Edmund Burke in expounding his position on stare decisis:
This principle [of stare decisis] is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France 110 (1790).
But as Burke scholar Yuval Levin explains, Roberts badly botches Burke:
Burke described precedents as “one ground, though only one ground, of legal argument,” and said that before they could be treated as authoritative they needed to be tested against five crucial criteria:
“They ought to be shewn; first, to be numerous and not scattered here and there;—secondly, concurrent and not contradictory and mutually destructive;—thirdly, to be made in good and constitutional times;—fourthly, not to be made to serve an occasion;—and fifthly, to be agreeable to the general tenor of legal principles, which over-ruled precedents, and were not to be over-ruled by them.”
The Chief Justice did not refer to any such criteria in thinking through his defense of a decision he disagreed with just four years ago. And if he had, it isn’t likely that his concurrence today would have withstood scrutiny under them.
Further, as Adrian Vermeule points out, Roberts’s faux “judicial Burkeanism” collapses on itself:
If the very first decision freezes the law forever, obliging all subsequent Justices to put aside their disagreements permanently in the name of stare decisis, then the “bank and capital of nations and of ages” shrinks radically. The only depositors to the bank will be the Justices in the initial majority, which means in practice that a majority of only one or two will frequently determine the law forevermore…. [T]he effect of the Chief’s approach is to require Burkean Justices to conform to the initial, maximally arrogant decision…. The self-undermining approach of the Chief’s concurrence, then, actually embodies a kind of judicial hubris cloaked in the garb of humility.
1993—In furtherance of his 1985 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”—federal district judge Russell G. Clark orders the state of Missouri to fund salary increases for school-district staff in order to improve the “desegregative attractiveness” of the school district to non-minority students outside the district. By the time the Supreme Court reviews this and similar orders, the total salary assistance that Clark will have required the state of Missouri to provide will exceed $200 million.
In its 1995 decision in Missouri v. Jenkins, the Supreme Court will rule, by a 5-to-4 vote, that Clark’s orders of salary increases exceed his “admittedly broad discretion.”
2016—Federal district judge Carlton W. Reeves rules (in Barber v. Bryant) that a Mississippi law that provides protections against government reprisals for those who take various actions based on their conviction that marriage is the union of a man and a woman violates the Establishment Clause and the Equal Protection Clause.
One year later, a unanimous Fifth Circuit panel will reverse Reeves’s ruling on the ground that the plaintiffs in the case, having failed to show that they were injured by the law, lacked standing to challenge it.
2016—Perhaps Ninth Circuit judge Kim McLane Wardlaw is competing for a Lifetime Summary Reversal Award. As Judge Diarmuid O’Scannlain aptly sums it up in dissent, the panel opinion by Wardlaw in Cuero v. Cate “erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law.”
In 2017, a unanimous Supreme Court will summarily reverse Wardlaw’s ruling (in Kernan v. Cuero) and thus add to her record of dubious achievements.
1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.
1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade.
The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.
But it gets far worse. Consider, for example, these passages on stare decisis considerations:
“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”
“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”
“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”
Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:
“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v.Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”
“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”
“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.”
2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place.
2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)
2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”
2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”
1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”
2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.
In two separate rulings today in Sierra Club v. Trumpand California v. Trump, a divided panel of the Ninth Circuit ruled that the plaintiffs have causes of action (legal claims) to challenge the Trump administration’s transfer of appropriated funds to build a border wall with Mexico and, further, that such transfer is unlawful. In the Sierra Club case, the panel majority—Ninth Circuit chief judge Sidney Thomas, joined by Judge Kim McLane Wardlaw—affirmed the district court’s grant of a permanent injunction enjoining expenditure of the transferred funds. In California v. Trump, it affirmed the district court’s declaratory judgment that such expenditure would be unlawful. Judge Daniel P. Collins dissented in both cases.
If this dispute sounds familiar, that might be because a year ago in this same Sierra Club case another divided panel of the Ninth Circuit left in place, pending consideration of the government’s appeal, the district court’s permanent injunction against the use of transferred funds. Three weeks later, the Supreme Court, by a 5-to-4 vote, overrode the Ninth Circuit’s ruling and block the district court’s injunction from taking effect. In so doing, the Court stated: “Among the reasons [for overriding the Ninth Circuit] is that the Government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review of the Acting Secretary’s compliance with Section 8005 [i.e., of the transfer of appropriated funds].”
The panel majority purports to “heed the words of the Court” and to be “wary and humble,” for, it says, “it is not a pleasant judicial duty to find that the President has exceeded his powers.” (The majority is quoting and embracing language from a concurring opinion by Justice Frankfurter.) But, for the reasons that Judge Collins spells out in his dissents, it is difficult to contend that the majority has acted cautiously and humbly.
The opinions in the two cases span nearly 200 pages, so, even though there is a fair amount of overlap between the cases, it is not an easy matter to present the key points of division concisely. But I’ll take a stab.
1. On whether plaintiffs have a cause of action
Sierra Club: The majority holds that Sierra Club has a constitutional cause of action. (Sierra Club at 25-31.) Circuit precedent, it says, establishes that the Appropriations Clause provides a cause of action to challenge violations of that provision. It rejects the government’s argument that the “zone of interests” test limits who has a cause of action under the Appropriations Clause. (Pp. 37-40.)
Collins argues that, under the Supreme Court’s ruling in Dalton v. Specter (1994), Sierra Club’s supposed constitutional cause of action is a statutory claim “dressed up in constitutional garb” and, in any event, is governed by, and cannot satisfy, the zone-of-interests test. (Pp. 70-79; see also pp. 59-69 on zone of interests of section 8005.)
The majority also holds that Sierra Club has “an equitable ultra vires cause of action.” (Pp. 31-36.) Collins replies that even if such a cause of action exists, it also is subject to, and can’t satisfy, the zone-of-interests limitations. (Pp. 79-80.)
California: The majority holds that plaintiffs California and New Mexico have a cause of action under the Administrative Procedure Act. (California at 30-36.) They satisfy the applicable zone-of-interests test, in its view, “because their interests are congruent with those of Congress and are not inconsistent with the purposes implicit in the statute.” (Internal quotation omitted.)
Collins disagrees that the states satisfy the zone-of-interests test. Section 8005 is “aimed at tightening congressional control over the appropriations process” and has nothing to do with the environmental interests that the states assert. (Pp. 61-74.)
2. On the legality of transferring the funds
Section 8005 provides that its transfer authority “may not be used unless for higher priority items, based on unforeseen military requirements, than those for which originally appropriated and in no case where the item for which funds are requested has been denied by the Congress.”
The majority holds that the need for a border wall was not “unforeseen” (California at 37-42) and that the need was not related to a military requirement (pp. 42-46). It also holds that Congress denied the item for which funds were requested (pp. 46-47).
Collins responds, first, that Congress did not deny the relevant “item” at issue. The “item,” he argues, is not properly “broadly defined to include any ‘border barrier construction” but must instead by understood “at the same ‘item’ level at which the Secretary would have to justify a reprogramming with an appropriation.” (Pp. 85-93.)
Collins also disputes the majority’s conclusion that the need was unrelated to a military requirement, as the Department of Defense’s provision of support for counterdrug activities is plainly a military requirement. (Pp. 94-98.) The majority is also wrong, he argues, in concluding that the need for a border wall was not “unforeseen.” In the context of the appropriations process, an item is foreseen only if it is reflected in DoD’s budgetary submissions or in Congress’s review and revision of those submissions. (Pp. 98-100.)
1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.
But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”
2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.
2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.
2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.
Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.
2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.”
It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”
I’ve run across several excellent critiques of Justice Gorsuch’s majority opinion in Bostock v. Clayton County (on top, of course, of the compelling dissents by Justices Alito and Kavanaugh). A non-exhaustive list:
1. In this Law and Liberty essay, law professor John McGinnis, who is very high on, if not at the top of, my list of best constitutional commentators, explains that Gorsuch’s opinion “embraces a desiccated literalism over a common-sense understanding of a text’s public meaning”:
The only way Gorsuch can avoid conceding that Alito’s is a better interpretation is to read the language as a kind of computer code, divorced from the understanding that people would have given to the phrase “discriminate . . . because of the individual’s sex.” …
But this kind of analysis depends on a mistaken understanding of natural language, even specialized legal language. It is emphatically not a computer code. It can only be understood through context. Consider what one of the foremost scholars of the philosophy of language, Scott Soames, says about legal interpretation. He argues that the narrow linguistic (read “literal”) meaning does not fully capture what the legislature “asserts” in a statute. This is not surprising, because linguistic communication always depends on the presuppositions and contexts that a speaker or groups of speakers share with their listeners. Just as in ordinary language, some matters are left unstated, so too in legislation. In this sense, communication in natural language is the opposite of a computer code where nothing is left unstated. To recapture that context, interpreters must be able to take account of matters, such as what problems the legislatures were addressing. Only then can one understand what they were asserting. That is why legal interpreters since Blackstone have warned that interpretation cannot descend into literalism.
2. This Law and Libertyessay by Thomas Ascik observes that Gorsuch’s flawed textualism treats the text of Title VII as “both immutable and mutable” and exposes his empty “reassurances” about “questions for future cases.”
3. On Public Discourse, Ryan Anderson illustrates the absurdity of the test that Gorsuch reads into Title VII:
So, under the Gorsuch test, if changing the plaintiff’s sex would change the outcome, then sex discrimination has taken place. To see the concrete implications of such an approach, just look at what Gorsuch’s theory requires: Suppose a female lifeguard is fired because she wears a swimsuit bottom but refuses to wear a top. No doubt, “changing the employee’s sex would have yielded a different choice by the employer” and her sex was a “but-for” cause of the decision. Yet her termination was not sex discrimination provided it held males and females to the same standard: a male lifeguard who exposed private parts would have similarly been fired. That male and female bodies differ—and thus require different swimsuits to prevent exposure—doesn’t amount to discrimination unless one embraces a simplistic theory. And, of course, nothing hinges on whether this lifeguard currently “identifies” as a woman or a man.
Consider another example. Suppose a male employee at a fitness center repeatedly goes into the women’s locker room and is fired. Now it’s true that “changing the employee’s sex would have yielded a different choice by the employer” and that his sex was a “but-for” cause of the decision to fire him. But the negative treatment the employee faced was not sex discrimination provided the employer imposed no double standard for men and women, such as a bathroom policy that imposed the same burden on men and women: each is prevented from entering the opposite sex’s private space. The Supreme Court has embraced a theory of sex discrimination that prevents employers—and schools—from keeping males out of female-only spaces. Either that, or it believes only males with a “transgender status” have the privilege of entering female-only spaces.
4. In this Wall Street Journalpiece titled “The Abolition of Man and Woman,” David Crawford and Michael Hanby, both professors at the Pontifical John Paul II Institute, argue that Gorsuch “has intervened in a bitterly contested question—a question of philosophy before it is a question of law—and codified a radical new conception of human nature with a dubious ideological history.” The ruling has a “totalitarian character” in that it “requires everyone to live for all public and practical purposes as if what they know to be true in their pre-ideological experience of reality—the knowledge we imbibe with our mother’s milk—were officially false, a ‘stereotype’”:
It is impossible to redefine human nature for only one person. When a fourth-grade girl is required to affirm in thought, word and deed that a boy in her class is now a girl, this does not simply affirm the classmate’s right to self-expression. It calls into question the meaning of “boy” and “girl” as such, thereby also calling into question both her own “identity” and that of everyone in her life, from her mother and father to her brothers and sisters, and all of her friends and relatives. As well it should. If each of us is defined by a “gender identity” only arbitrarily related to our male and female bodies, now relegated to a meaningless biological substrate, then there is no longer any such thing as man or woman. We are all transgender now, even if sex and “gender identity” accidentally coincide in an overwhelming majority of instances.
1962—“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”
In Engel v. Vitale, the Supreme Court holds that the Establishment Clause forbids a state board of education from directing that prayer to be said at the beginning of each school day, even if students who wish to do so are permitted to remain silent or to be excused from the room.
In solo dissent, Justice Potter Stewart objects that the prayer is consistent with “the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their ‘firm Reliance on the Protection of divine Providence’ when they proclaimed the freedom and independence of this brave new world.”
1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:
STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.
Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:
“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”
2008— By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)
While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.
Back in the office for the first time in months, I’ve had time to dig into an amazing Ninth Circuit opinion that’s been sitting on my desk. In Al Otro Lado v. Wolf, a divided panel denied the Department of Homeland Security’s motion for a stay pending appeal of a district court’s preliminary injunction. That injunction barred DHS from enforcing its “Third Party Transit Rule” against a supposed class of some 26,000 asylum seekers.
Okay, your eyes are glazing over. So let me jump to the opening of Judge Daniel Bress’s tour de force dissent:
In a case that does not challenge it, the district court below partially enjoined an asylum rule that the Supreme Court just months ago ordered could go into effect pending appeal. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019). How could this even happen?
As Bress explains, the plaintiffs in Al Otro Lado challenge DHS’s “metering” policy, which limits the number of aliens who can gain access to U.S. ports of entry at any particular time. They don’t challenge the Third Party Transit Rule, which generally bars asylum for persons who did not previously seek asylum in a third country through which they traveled on their way to the United States. What’s more, in a separate lawsuit (East Bay Sanctuary Covenant v. Barr) in another district court—the wild Judge Jon Tigar in the Northern District of California—that actually does challenge the Third Party Transit Rule, the Supreme Court intervened to block the Tigar’s preliminary injunction from taking effect while the government seeks certiorari.
But somehow none of this stopped Judge Cynthia Bashant from granting the preliminary injunction against the Third Party Transit Rule in Al Otro Lado.
Bress objects that “courts cannot go around enjoining immigration rules in cases that do not challenge them, particularly where the Supreme Court has just allowed the rule to go into effect.” Beyond the minor detail that plaintiffs aren’t challenging the Third Party Transit Rule, Bashant’s injunction rests on her “unprecedented” holding that “our asylum laws apply not only to persons physically ‘in’ the United States, but to persons outside the United States who are ‘in the process of arriving into it.”
Bress further charges that the injunction “forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border with Mexico.” The 26,000-person class “consists of aliens from all over the world who sought entry over a period of years at numerous points of entr[y] at the United States-Mexico border.” “Requiring the government to now apply different rules to this subclass, and even figuring out who such persons are, will be an enormous and arduous task, made only more difficult by the lack of documentation and the incredible strain under which our immigration system already labors.”
There’s much, much more in Bress’s compelling dissent.
1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?
In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”
God save the United States and this often-dishonorable Court!
As someone who admires Justice Kagan’s craftsmanship, I’m surprised to learn from this tweet thread of the strange use that she made in an opinion last year of the citation appendage “(quotation modified).”
It’s conventional to modify quotations—without, of course, altering the meaning—by using bracketed material and ellipses to signal the modifications you’re making. I’m also fine on cleaning up quotations to eliminate clutter, such as brackets or ellipses, or to change confusing punctuation or capitalization, and a notation that says “cleaned up” strikes me as unobjectionable. But what Kagan did in two instances in her unanimous opinion in Thacker v. Tennessee Valley Authoritywas something very different.
Here is her first instance:
And Congress generally “intend[s] the full consequences of what it sa[ys]”—even if “inconvenient, costly, and inefficient.” Id., at 249 (quotation modified).
In our view, however, the bridge was crossed when Congress abrogated the immunity by this “sue and be sued” clause. And no such grave interference with the federal function has been shown to lead us to imply that Congress did not intend the full consequences of what it said. Hence, considerations of convenience, cost and efficiency which have been urged here are for Congress which, as we have said, has full authority to make such restrictions on the “sue and be sued” clause as seem to it appropriate or necessary.
The phrase “inconvenient, costly, and inefficient” simply doesn’t appear in Burr. What’s the point of concocting the quote? Why not simply cite Burr for the proposition? Similarly on the other change: The statement in Burr that “Congress did not intend the full consequences of what it said” might well imply that “Congress generally intends the full consequences of what it says” (my cleaned-up version of Kagan’s statement), but it doesn’t in fact say that, so why quote it as though it does?
Here is Kagan’s second instance in Thacker:
But it is no higher than appropriate given Congress’s enactment of so broad an immunity waiver—which demands, as we have held, a “liberal construction.” Ibid. (quotation modified).
Here, again, she is citing and quoting Burr. But here is what Burr says (emphasis added):
[W]e start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed.
Citing Burr seems entirely proper. But what’s the point of putting “liberal construction” in quotes when the phrase from Burr is “liberally construed”? Why not just let the citation do its proper work? Or, if Kagan wanted to quote Burr and avoid the ugly “liberal constru[ction],” she could easily have used the actual quote: “which demands, as we have held, to be ‘liberally construed.’”
Yesterday’s opinion by Justice Sotomayor in Liu v. SEC marked the second time that “(quotation modified)” has been used in a Supreme Court opinion:
In civil actions, the SEC can seek civil penalties and “equitable relief.” See, e.g., §78u(d)(5) (“In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, . . . any Federal court may grant . . . any equitable relief that may be appropriate or necessary for the benefit of investors”); see also §78u(d)(3) (“Money penalties in civil actions” (quotation modified)).
Unlike Kagan’s, Sotomayor’s use of “(quotation modified)” is trivial and probably gratuitous. Specifically, all that she did was eliminate a comma where she added the second ellipsis. But what’s strange about her quote is that she should have retained the words that she eliminated because they are what directly establish her proposition that “the SEC can seek … ‘equitable relief.’” Here’s the full 15 U.S.C. § 78u(d)(3), with the restored words italicized:
In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, the Commission may seek, and any Federal court may grant, any equitable relief that may be appropriate or necessary for the benefit of investors.
In September 2019, federal district judge Ketanji Brown Jackson issued a 122-page opinion, with an elaborate table of contents, in support of her preliminary injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. Jackson ruled (among other things) that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious.
In a decision issued today, the D.C. Circuit reverses Judge Jackson. All three judges on the panel agree that Jackson got things very wrong. They differ only on which error requires vacating the injunction.
In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards, holds that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. The DHS decision is therefore not subject to review under the APA, and Jackson’s preliminary injunction was improper.
In a separate opinion, Judge Neomi Rao determines that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge. In her 24-page opinion, Rao explains that courts “must interpret jurisdiction-stripping statutes to mean what they say” and that federal immigration law “unambiguously strips the federal courts of jurisdiction to review” the DHS decision. In addition, Rao explains, even if jurisdiction did exist, federal immigration law “categorically prohibits injunctive relief absent proceedings against an individual alien.” (Rao’s opinion is styled a dissent, rather than a concurrence in the judgment, because she would require that the district court dismiss the case for lack of jurisdiction.)
This isn’t the first time that Jackson has written a 100-page-plus opinion in support of an attention-getting injunction that she has issued on behalf of liberal plaintiffs, only to have an ideologically diverse D.C. Circuit panel overturn her for messing up a threshold issue.
In just over three years in office, President Trump has made nearly 200 Article III appointments. Although much of the related commentary has focused on the rate of these appointments, relatively little attention has been paid to their qualifications except to perpetuate the myth that they are “unqualified.”
The president’s opponents reflexively denigrate President Trump’s judicial nominees as “inexperienced or worse,” as an op-ed published in the Los Angeles Times recently asserted, or, in the words of Massachusetts senator Elizabeth Warren, “aggressively unqualified.” The facts say the opposite. By many objective measures — and according even to the American Bar Association, which Senate Democrats describe as “the gold standard by which judicial candidates are judged” — President Trump’s judicial appointments are among the most qualified in history.
The ABA “gold standard” moniker is, of course, questionable. Peer-reviewed studies have shown the ABA evaluates nominees of Republican presidents more harshly than those of Democratic presidents. According to one study, “even controlling for credentials, Clinton nominees [had] 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees.” That study concluded that just being nominated by a Democrat (Clinton) rather than a Republican (Bush) was “better than any other credential or than all other credentials put together.”
So it is all the more extraordinary that President Trump’s judicial appointments have earned the ABA’s “Well Qualified” rating at nearly the highest rate in five decades. Consider President Trump’s court-of-appeals appointments: The ABA has rated 77 percent of them “Well Qualified,” exceeding the 75 percent for the Clinton and Carter administrations, the 69 percent for the George W. Bush administration, the 62 percent for the George H.W. Bush administration, and the 57 percent for the Reagan administration. Only President Obama’s percentage was higher, at 80 percent. Otherwise, President Trump’s appointments to the courts of appeals have been rated “Well-Qualified” by the ABA at the highest rate of any president since at least Gerald Ford.
Similarly, President Trump’s district-court appointments have been rated historically well-qualified by the ABA — with nearly 66 percent receiving a “Well Qualified” rating. President Obama’s district-court nominees, by contrast, received that rating only 58.6 percent of the time. District-court judges appointed by Presidents Clinton, George H.W. Bush, Reagan, and Carter likewise lagged behind those appointed by President Trump.
Overall, a remarkable 68.8 percent of President Trump’s judicial appointees have earned the ABA’s “Well Qualified” rating. Since the Ford administration, only President George W. Bush exceeded that level, and even then only by less than 1 percent.
President Trump’s critics ignore this historic achievement. Instead, they mischaracterize the ABA’s few harsh ratings as representing the whole, an attack not rooted in the truth. The ABA’s decision to rate a nominee “Not Qualified” is often premised on its fixed requirement of twelve or more years of certain experience. In its rating letters, the ABA has conceded that several of the president’s nominees would have gotten a “Qualified” rating, but for barely missing this mark. For other nominees, such as Judge Lawrence Van Dyke — the only Court of Appeals nominee ever to have served as the highest appellate lawyer in two states within his circuit — the ABA’s process was clearly flawed.
Despite these anomalies, based on objective qualifications, this administration’s historic ABA “Well Qualified” record should come as no surprise. Take, for example, one of the most impressive credentials in the legal profession: a Supreme Court clerkship. President Trump has appointed 30 former Supreme Court clerks to the bench. To put that in perspective, 40 percent of President Trump’s appellate nominees clerked for the Supreme Court, against less than a quarter of President Obama’s. A similar ratio holds for appellate clerkships: 78 percent of President Trump’s appellate appointments clerked on a federal court of appeals, whereas only 40 percent of President Obama’s appellate nominees did the same.
The personal stories of these individuals, often unreported, are as impressive as their credentials. In addition to serving on the Seventh Circuit, Judge Amy Barrett and her husband raise seven children, including two adopted from Haiti. Fifth Circuit Judge Jim Ho immigrated to this country from Taiwan as a child and learned English from watching children’s television. President Trump’s first appointment to the courts of appeals, Sixth Circuit Judge Amul Thapar, was the first federal judge of South Asian descent. President Trump’s latest nominee to the D.C. Circuit, Judge Justin Walker, was raised by a single mother and graduated with high honors from Harvard Law School, although neither his mother nor his grandparents had attended college. These are not isolated examples.
President Trump’s nearly 200 new judges have also brought deep and varied experiences to the bench: 33 have served as a federal district-court or magistrate judge; 11 have served as a state supreme court justice; and 53 have served as a state-level trial or appellate judge. Sixty have served as federal prosecutors; 24 have served as state prosecutors; and over 100 have served in either the executive branch or in the legislative branch. In short, as liberal commentator Ian Millhiser recently acknowledged: “Based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”
Beth A. Williams is the Assistant Attorney General at the Department of Justice’s Office of Legal Policy (OLP). OLP advises and assists the President and the Attorney General in the selection and confirmation of federal judges.
2005—In an act of judicial passivism, a five-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.
It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.
1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”
2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)
In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”
2004—A mere audience member at an American Constitution Society panel discussion on the forthcoming presidential election, Second Circuit judge Guido Calabresi can’t restrain himself. Calabresi begins his comments from the floor by acknowledging that he is “not allowed to talk politics,” but he quickly descends into an extraordinary diatribe: “What the Supreme Court did in Bush v. Gore” was “exactly what happened when Mussolini was put in by the King of Italy” and “what happened when Hindenburg put Hitler in.” Of course, Calabresi is “not suggesting for a moment that Bush is Hitler.” But, “like Mussolini, he has exercised extraordinary power.” And “when that has happened it is important to put that person out [of office].”
A week later, Calabresi will apologize that his comments could reasonably have been understood to be partisan. In April 2005, the Judicial Council of the Second Circuit will confirm that Calabresi violated the canon of judicial ethics that provides that a judge “should not … publicly endorse or oppose a candidate for public office.”
In his majority opinion in Bostock v. Clayton County, Justice Gorsuch dutifully parrots some of the rhetoric of transgender ideology. In its ruling in the funeral-home case, the district court stated straightforwardly:
The Funeral Home hired Stephens in October of 2007. At that time, Stephens’s legal name was Anthony Stephens. All of the Funeral Home’s employment records pertaining to Stephens — including driver’s license, tax records, and mortuary science license — identify Stephens as a male.
Stephens served as a funeral director/embalmer for the Funeral Home for nearly six years under the name Anthony Stephens.
Gorsuch instead turns this into: “Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male.”
Similarly, in presenting his argument that discrimination on the basis of gender identity is sex discrimination, Gorsuch speaks of “a transgender person who was identified as a male at birth.”
But what these pious evasions obscure is that Gorsuch’s statutory analysis, for all its flaws, is predicated on the proposition that a man who identifies as a woman—a so-called transgender female, in transgender lingo—is in fact a man. (And likewise, of course, for a woman who identifies as a man.) Gorsuch’s opinion not only “proceed[s] on the assumption that ‘sex’ [in Title VII] … refer[s] only to biological distinctions between male and female.” His entire reasoning in favor of Stephens turns on the fact that Stephens was indeed a man when the funeral home fired him.
Consider this key passage from Gorsuch:
[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.
If a person “who was identified as a male at birth” had actually somehow become a female at the time of the contested employment action, it would make no sense to say that an employer who treated that female differently from other females was discriminating on the basis of sex. It is precisely because Stephens remained a man from birth through the time he was fired that Gorsuch can say that the funeral home “penalize[d]” him “for traits or actions that it tolerate[d] in” women.
In short, Gorsuch and all the justices in the majority reject, implicitly but emphatically, the radical transgender claim that “trans women are women” and that “trans men are men.”
More broadly, as Ryan Anderson argues in this excellent piece, Gorsuch’s opinion is built on the “gender binary” that transgender ideologues reject. His reasoning applies to men who identify as women and to women who identify as men, but it doesn’t apply at all to individuals who identify as any of the dozens of other genders that are said to exist. Simply put, if an employer decides not to hire (or decides to otherwise penalize) anyone who identifies as “genderqueer” or “pangender” or “agender” or “gender fluid,” the employer’s decision is obviously not treating men (oops, people who were “identified as male at birth”) any differently from women and therefore does not amount to sex discrimination.
Similarly, Gorsuch’s reasoning on sexual orientation extends protections to gays and lesbians but not to bisexuals. An employer who decides not to hire anyone who identifies as bisexual doesn’t treat men and women differently.
The notion that the ordinary meaning of Title VII when it was enacted in 1964 (or any time since) embodies these distinctions embedded in Gorsuch’s reasoning is of course preposterous. That’s just further evidence that Gorsuch’s reasoning is deeply unsound.
In my analysis of Justice Neil Gorsuch’s opinion for the Court in Bostock v. Clayton County, I noted his past adherence to originalism and textualism, citing as an example the following passage from Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018):
Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]
That was far from an aberration. Gorsuch’s opinions have professed the same principles in numerous cases, going back to his tenure on the Tenth Circuit. Here are just some examples of passages from past cases. (All citations are to opinions of the court unless otherwise indicated.)
“[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. We would risk, too, upsetting reliance interests in the settled meaning of a statute. Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand.
—New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (quoting Wisconsin Central) (citations omitted)
[T]he real cure doesn’t lie in turning judges into rubber stamps for politicians, but in redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation judges have employed for centuries to elucidate the law’s original public meaning. Today it is even said that we judges are, to one degree or another, “all textualists now.”
—Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (concurring in the judgment)
The Constitution’s meaning is fixed, not some good-for-this-day-only coupon . . . .
—American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2102 (2019) (concurring in the judgment)
Our job here is a modest one. We are charged with adopting the interpretation most consistent with the treaty’s original meaning.
—Washington State Dep’t of Licensing v. Cougar Den, 139 S. Ct. 1000, 1016 (2019) (concurring in the judgment)
If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning. The Sixth Amendment was understood as preserving the “historical role of the jury at common law.”
—Hester v. United States, 139 S. Ct. 509, 511 (2019) (dissenting from the denial of certiorari) (citation and internal quotation marks omitted)
State governments were supposed to serve as “laborator[ies]” of democracy, with “broad power to regulate liquor under §2.” If the people wish to alter this arrangement, that is their sovereign right. But until then, I would enforce the Twenty-first Amendment as they wrote and originally understood it.
—Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2484 (2019) (dissenting) (citations omitted)
By all appearances, the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.
—Gamble v. United States, 139 S. Ct. 1960, 2005 (2019) (dissenting)
Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment . . . .
—Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019)
As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.
—Timbs v. Indiana, 139 S. Ct. 682, 691 (2019) (concurring)
This mutated version of the “intelligible principle” remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked. Judges and scholars representing a wide and diverse range of views have condemned it as resting on “misunderst[ood] historical foundations.”
—Gundy v. United States, 139 S. Ct. 2116, 2139-40 (2019) (dissenting)
The Constitution’s original public meaning supplies the key, for the Constitution cannot secure the people’s liberty any less today than it did the day it was ratified. The relevant constitutional provision, Article III, explains that the federal “judicial Power” is vested in independent judges. As originally understood, the judicial power extended to “suit[s] at the common law, or in equity, or admiralty.”
—Oil States Energy Servs. v. Greene’s Energy Grp., 138 S. Ct. 1365, 1381 (2018) (dissenting)
Concerns with substantive due process should not lead us to react by withdrawing an ancient procedural protection compelled by the original meaning of the Constitution.
—Sessions v. Dimaya, 138 S. Ct. 1204, 1233 (2018) (concurring in part and in the judgment)
We are not in the business of expounding a common law of torts. Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.
—Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016) (concurring in the judgment)
The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.
Our job . . . [is] to apply the [Fourth] Amendment according to its terms and in light of its historical meaning.
—United States v. Carloss, 818 F.3d 988, 1015 (10th Cir. 2016) (dissenting)
When interpreting the Fourth Amendment we start by looking to its original public meaning — asking what “traditional protections against unreasonable searches and seizures” were afforded “by the common law at the time of the framing.”
—United States v. Krueger, 809 F.3d 1109, 1123 (10th Cir. 2015) (concurring in the judgment) (citation omitted)
Statutes and rules are the product of many competing interests and compromised objectives and the best guide to the “policy” they seek to vindicate is their terms and structure, not our supplemental conjuring. If Congress wants to withdraw district court jurisdiction in this or any other area of course it may, but it is not our business to substitute its judgment for ours based on our own views of optimal policy.
—United States v. Spaulding, 802 F.3d 1110, 1133 (10th Cir. 2015) (dissenting) (citation omitted)
Whatever our policy views on the question of protecting reports of prospective violations, it is Congress’s plain directions, not our personal policy preferences, that control.
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. Carter had nominated Ginsburg only two months earlier.