Law & the Courts

Nancy Abudu, Another Concession to the Far Left and to One of Its Most Disreputable Organizations

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President Biden’s judicial gifts to dark-money groups do not end with Ketanji Brown Jackson or other far-left nominees he picked for lower courts. Eleventh Circuit nominee Nancy Abudu made her career in the dark-money realm since 2005, when she joined the American Civil Liberties Union. She worked for several years for the group’s Voting Rights Project, leaving just as another future Biden nominee—Dale Ho—became its director. From there, Abudu assumed the post of legal director of the ACLU of Florida.

In 2019, after over a decade with the ACLU, Abudu joined the Southern Poverty Law Center (SPLC), a once admirable group that in recent years has been mired in scandal and recognized as a racket that betrays its stated principles—not least by vilifying those it disagrees with as “hate groups.” A number of liberals have acknowledged this, with Nathan J. Robinson, founder of the left-wing Current Affairs, calling the group’s signature “Hate Map” an “outright fraud.”

Abudu is the group’s director for strategic litigation. A wide-ranging coalition of over 50 organizations and individuals protested her nomination in a letter to Senate Judiciary Committee Chairman Richard Durbin and Ranking Member Chuck Grassley. They stated bluntly: “Ms. Abudu works for a disreputable organization that has no business being a feeder for positions to any judicial office—not even of a traffic court—let alone the second highest court system in the United States. She is a political activist not a jurist and is unfit to serve at the federal appellate level.”

The Family Research Council (FRC) circulated the letter. They have good reason to have sounded the alarm. They know the real danger of being labeled a “hate group” by the SPLC. As their letter to Durbin and Grassley explains:

These destructive accusations have done real harm to many people. In the first conviction under the post-9/11 District of Columbia terrorism statute, the convicted terrorist was shown to have been motivated by the SPLC’s “hate group” designation and related identifying information.

In that case, SPLC materials facilitated a troubled young man’s delusional, and thankfully unsuccessful, plan to commit mass murder. Using the SPLC “hate map,” this native of northern Virginia targeted the Family Research Council (FRC) and two other nearby groups in August 2012 for having beliefs supporting traditional marriage. Fortunately, no one was killed, although he did shoot and critically wound FRC’s unarmed building manager who subdued him while wounded.

To make matters worse, the SPLC’s leadership—Abudu included—apparently haven’t learned their lesson. “[O]ver the past decade the SPLC has targeted an increasing number of policy groups with whom it has policy disagreements. Any group that disagrees with the SPLC about positions it advocates is deemed to be evil and worthy of destruction,” laments the coalition letter.

In addition to its inflammatory designations, the SPLC has amassed a war chest to fund its left-wing activism totaling $570 million as of October 2020. Its holdings are, to put it mildly, highly unusual for an American non-profit company. Among investments listed in its 2020 financial statements are $162 million in non-U.S. equity funds, $23 million in “arbitrage funds,” $89 million in private equity funds, and $7 million in long-short funds. The coalition letter observed, “The SPLC looks more like a hedge fund than a public interest legal and political activist group.”

Amy Sterling Casil, the CEO of the consulting firm Pacific Human Capital, remarked regarding its transfer of millions of dollars to foreign bank accounts that “I’ve never known a US-based nonprofit dealing in human rights or social services to have any foreign bank accounts.” She added, “I know of no legitimate reason for any US-based nonprofit to put money in overseas, unregulated bank accounts” and called the SPLC’s practice “unethical.” The watchdog group CharityWatch gave the SPLC a grade of “F.”

In addition to Abudu’s shady professional associations, she consistently has taken far-left positions in litigation. Perhaps the most prominent were cases Abudu argued while at the ACLU’s Voting Rights Center, for example, making unsuccessful challenges to felon voting provisions in MississippiArizona, and Tennessee. As legal director of the ACLU of Florida, Abudu unsuccessfully challenged the state’s requirement that a felon’s voting rights could be restored only after all fines, fees, and restitution imposed as part of the felon’s sentence had been paid. The Eleventh Circuit, sitting en banc, found no evidence to support Abudu’s claim of intentional racial discrimination. Undeterred, Abudu joined several other groups to submit Florida’s law to the United Nations Committee on Human Rights for review of human rights violations.

Since joining the SPLC, Abudu has maintained her ties with the ACLU of Florida and continued her losing track record in court with an unsuccessful Eighth Amendment claim against Florida’s Department of Corrections for not fully accommodating a transgender inmate’s “social-transitioning” requests.

The Biden administration and congressional Democrats continue to make scurrilous allegations of suppression of voting rights in Republican-led states, cherry-picking them over Democrat-led states with more stringent election rules and brazenly trying to weaponize the courts to do their partisan bidding. And Biden’s Department of Justice has specifically targeted Georgia, where Abudu would sit if confirmed, alleging the state’s recent election law violated the Voting Rights Act and engaged in racial discrimination. If you believe a Judge Abudu would fairly evaluate Georgia’s voting integrity laws according to the rule of law rather than her own agenda, I have a bridge to sell you.

Law & the Courts

This Day in Liberal Judicial Activism—April 19

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(Jonathan Drake/Reuters)

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  

Under Douglas’s rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.   

2016—Rarely if ever has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception. 

In G.G. v. Gloucester County School Board, a divided panel of the Fourth Circuit defers to the Obama administration’s radical claim that federal law requires any school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.” Never mind that the Obama administration never actually interpreted the particular 1975 regulation in the manner that the panel majority imagined it owed deference to. Never mind that assigning facilities and programs on the basis of biological sex disregards—and thus clearly does not discriminate on the basis of—gender identity.  

In August the Supreme Court will block the Fourth Circuit’s ruling from taking effect, and in late October it will grant the school board’s certiorari petition. In March 2017—after the incoming Trump administration repudiates the Obama’s reading of federal law—the Court will vacate the Fourth Circuit’s ruling and remand the case for further consideration. But in 2020 the Fourth Circuit will again rule in the plaintiff’s favor, and after the Supreme Court denies review of that decision, the plaintiff will extract a lucrative settlement from the school district. 

Law & the Courts

OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 2

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There are also several important matters that the OLC opinion fails to address. Given the evident rush in which the opinion was issued, this is perhaps understandable. But the gaps present some troubling questions about how the OLC advice might operate in practice.

Numbering serially from my Part 1 post:

3. In observing (correctly, in my view) that the president may make “prospective nominations” for “anticipated vacancies on the Supreme Court,” OLC does not clarify the bounds of an anticipated vacancy, nor does it address whether the president may make prospective nominations for vacancies that fall outside the bounds of what is “anticipated.”

In its 1968 opinion, OLC stated:

It should be noted that anticipated vacancies [for judicial or executive-branch positions] may be grouped into two categories: First, those that will take effect on a day certain; e.g., when a resignation is submitted as of a specific date, or a statutory term is about to expire. Second, those that will take effect upon fulfillment of a condition; e.g., when the removal or elevation of the incumbent takes effect, or the appointment and qualification of his successor. Nothing in the Constitution prevents advance nomination and confirmation to fill either category of anticipated vacancies.

This statement might well be read to imply that the Constitution prevents “advance nomination” for a future vacancy that falls outside of these two categories. But, alternatively, it might simply be that the settled practice of a president’s making advance nominations only for these two categories of anticipated vacancies reflects a sensible accommodation of the institutional interests of the president and the Senate—an accommodation that a president and a compliant Senate might choose to depart from.

4. In advising that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office,” OLC does not explicitly state that prospective appointments are not permissible for vacancies that are anticipated to occur after the president’s current term of office. Is that in fact OLC’s position? And, if so, what are the constraints on anticipating a vacancy?

These questions interact in important ways with the question whether a president may make an advance nomination to a vacancy that falls outside the two categories of anticipated vacancies in item 3. Might a president, for example, assess that a particular justice seems to be in poor health, nominate a successor to that justice’s position, and, upon the Senate’s confirmation of that nomination, prospectively appoint the successor?

5. What happens if the president makes a prospective appointment to a vacancy but the vacancy does not actually occur during the president’s current term of office? Assume, for example, that Justice Breyer changes his mind and decides not to retire. Does Breyer’s prospective appointment of Jackson to the Breyer vacancy expire on January 20, 2025? Or does it remain potent, ready to spring into full operation whenever Breyer does vacate his seat?

On the one hand, the OLC opinion’s core conclusion that Biden, by making a prospective appointment of Jackson, would complete his role in the appointment process makes it puzzling to think that his appointment would somehow expire when his term ends. If that were the case, the Supreme Court could have dismissed Marbury v. Madison on the ground that Marbury’s failure to accept President Adams’s appointment while Adams was still president meant that the appointment expired when Thomas Jefferson took office. I am not aware of any precedent that an unaccepted appointment expires when the appointing president’s term expires.

On the other hand, the OLC opinion embraces the proposition that the president “could not ‘forestall the rights and prerogatives of [his] own successors by appointing successors to offices expiring after [his] power to appoint has itself expired.’” So this proposition would seem to mean that Biden’s prospective appointment of Jackson would expire on January 20, 2025 (at least if Biden is not elected to a second term). Or does it mean that Biden would “forestall the rights and prerogatives” only if he made a prospective appointment to a vacancy that he did not anticipate would occur during his term?

Depending on how this and the preceding questions are answered, a president might be able to make a batch of nominations to, say, the next ten or twenty associate-justice vacancies that will occur, have a compliant Senate confirm those nominations, and then make prospective appointments that will spring into operation over a course of many years, with the appointed individuals filling new vacancies as associated justices whenever such vacancies arise.

6. If the OLC opinion is correct and Biden could make a prospective appointment of Jackson, how must such an appointment be worded?

As I have noted, when the president uses the conventional language of the judicial commission, he states that he thereby “authorize[s] and empower[]” the appointed judge “to execute and fulfil the duties” of the judicial office. Without some amendment, such language in a commission making a prospective appointment would seem to be lie and thus a nullity.

According to the 1968 OLC opinion, President Grant’s commission of Edwin M. Stanton on December 20, 1869, specified that it would “take effect on or after February 1 [1870],” the date on which Justice Grier’s resignation would take effect, and President Harding’s commission on September 5, 1922, of George Sutherland to replace Justice Clarke likewise stated “commencing September 18, 1922,” the date on which Clarke’s resignation would take effect.

What does the commission that Biden has apparently issued Jackson actually say? And if it doesn’t similarly specify that it takes effect only upon Breyer’s retirement (or on a specific date that ends up being after Breyer’s retirement), is it nonetheless somehow valid?

*  *  *

As I have previously explained, it appears that Biden resorted to a prospective appointment of Jackson in order to try to foreclose the farfetched possibility that the Senate might somehow adopt a motion to reconsider its confirmation of Jackson. When Breyer does retire, Biden should issue Jackson a second commission in order to eliminate any question over the legitimacy of her appointment as an associate justice.

Law & the Courts

OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 1

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Judge Ketanji Brown Jackson attends her confirmation hearing on Capitol Hill in Washington, D.C., March 22, 2022. (Elizabeth Frantz/Reuters)

On further review, the Office of Legal Counsel’s opinion on President Biden’s purported authority to “prospectively appoint” Judge Ketanji Brown Jackson to the Supreme Court is much worse than I first thought.

In a post on Friday evening, I offered some initial doubts about the soundness of OLC’s advice that Biden could, in the immediate aftermath of the Senate’s confirmation of Jackson’s nomination, complete his role in the appointment process by issuing a commission to Jackson that would take effect when Justice Breyer retires. In this post and a follow-on, I will expand my critique of the OLC opinion. (I won’t reiterate here my argument that the OLC opinion contradicts a passage in Marbury v. Madison, and I instead refer interested readers to point 2 of that previous post.)

To be clear, while I am very skeptical of OLC’s bottom line, I am not contending here that it is clearly wrong. I am instead maintaining that the reasoning in the OLC opinion is deeply defective and unpersuasive.

1. The OLC opinion prominently asserts:

Our Office has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office. See Memorandum for Harlington Wood, Jr., Associate Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delay in Induction of Judge into Office Following His Confirmation by the Senate (Nov. 27, 1970) (“Rehnquist Memorandum”).

To my surprise, it turns out that that assertion is blatantly wrong.

The Rehnquist Memorandum that OLC cites was made public on Friday evening. As its title indicates, it addresses whether two United States Attorneys who had been “recently confirmed by the Senate to be district judges” could have “their ascension to the bench … delayed” so that they could complete their “work[] on important criminal prosecutions.” President Nixon had issued a judicial commission to one of the two confirmed nominees but not to the other. Both nominations involved newly created seats, not seats still occupied by an incumbent.

The Rehnquist Memorandum not only does not advise on the matter of prospective appointments. It does not even offer a word in passing on the matter. So I do not see how OLC can defend citing the Rehnquist Memorandum (and only the Rehnquist Memorandum) as support for the proposition that OLC “has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” (I also don’t see how anything in the Rehnquist Memorandum provides even implicit support for that position.)

A cynic might suspect that OLC is trying to hide behind Rehnquist’s conservative bona fides to deflect scrutiny of its position.

2. The OLC opinion also asserts:

The Office [OLC] has previously noted that historical practice supports the President’s authority to make prospective appointments of judicial officers, including an Associate Justice of the Supreme Court.

This assertion is also false. The opinion cites two previous opinions in support of this assertion. Let’s start with the second one, the Rehnquist Memorandum. Again, there is not a sentence in the Rehnquist Memorandum that “noted that historical practice supports the President’s authority to make prospective appointments of judicial officers” or that even had anything remotely to do with the matter. The new opinion claims that the Rehnquist Memorandum “discussed” one instance of such an appointment, but as its own account reveals, the instance instead involved “a judicial officer [who] ha[d] been appointed many months before taking the oath and entering on the duties of the office.” In other words, rather than involving a prospective appointment, it involved an ordinary immediate act of appointment by the president and the confirmed nominee’s delay in accepting the appointment.

The other previous OLC opinion that the new opinion cites is a 1968 opinion on the power of President Johnson to nominate Abe Fortas to be chief justice (which is available as an attachment, pp. 154-169, to a 1979 opinion). Here too, the subject matter of the opinion has nothing to do with prospective appointments. It instead concerns the president’s power to make a nomination to a seat that is not yet vacant. It therefore bears instead on the (to my mind, uncontroversial) point that Biden had the power to nominate Jackson to Breyer’s seat.

OLC states that the 1968 opinion “provided several examples of judges who were appointed by the President prior to the effective date of the outgoing official’s resignation.” That statement is correct, as several can mean three. And those examples do appear to provide support for the proposition that presidents have made prospective appointments before, including to the position of associate justice.

But I do not think that it is correct to contend that the 1968 opinion “noted that historical practice supports the President’s authority to make prospective appointments.” Rather, the 1968 opinion compiled the data on these and other judicial appointments and lumped them all together as examples of nominations “in advance of the effective date of the resignation or retirement of the incumbent.” The 1968 opinion seems to take no particular note of, and certainly does not offer any comment on the issues raised by, the three instances that also happen to involve prospective appointments.

It’s also worth noting that each of those three instances involved the incumbent’s commitment to retire upon a specific date (that’s true of both of the associate-justice instances) or condition. By contrast, Breyer stated in January only that he “intend[ed]” his retirement decision to take effect at the end of the Court’s term, and he hedged even that mere statement of intention on the “assum[ption] that by then my successor has been nominated and confirmed.”

And of course there is the broader question whether previous actions by presidents provide meaningful evidence that a practice is constitutionally permissible or show instead that presidents sometimes acted unconstitutionally.

(I will note that the OLC opinion also cites a 1960 OLC opinion that apparently deals with “prospective appointments” to some fixed-term executive-branch offices. That opinion does not appear to be publicly available, and if it in fact provides meaningful support for the new OLC opinion, it would be odd that the new OLC opinion so badly misuses the Rehnquist Memorandum and the 1968 opinion.)

Law & the Courts

This Day in Liberal Judicial Activism—April 18

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1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents. 

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. 

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:  

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.  

2018—A Sixth Circuit panel rules (in Planned Parenthood v. Himes) that an Ohio law that bars the state department of health from funding organizations that perform or promote nontherapeutic abortions violates a Planned Parenthood affiliate’s constitutional rights.  

In March 2019, the en banc Sixth Circuit, by a vote of 11 to 6, will repudiate the panel’s reasoning.  

Law & the Courts

This Day in Liberal Judicial Activism—April 17

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2009Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Association—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:  

“The power of working together was, this past November, resoundingly proven.”  

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”  

“On November 4, we saw past our ethnic, religious and gender differences.”  

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”  

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.” 

 Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat. 

Law & the Courts

This Day in Liberal Judicial Activism—April 16

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(Matt Anderson/Getty Images)

2008Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.  

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.” 

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”  

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.” 

2020—In a case challenging the Connecticut Interscholastic Athletic Conference’s policy of allowing biological males who identify as females to compete against girls, federal district judge Robert Chatigny chastises the girls’ attorneys for referring to the male athletes as “males.” 

Law & the Courts

No, Not An End to KBJ Appointment Follies

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Judge Ketanji Brown Jackson listens to questions during her confirmation hearing on Capitol Hill in Washington, D.C., March 22, 2022. (Elizabeth Frantz/Reuters)

The Office of Legal Counsel in the Justice Department made public today an opinion dated April 6, 2022—the day before the Senate’s confirmation of Judge Ketanji Brown Jackson’s nomination to replace Justice Breyer—that advises President Biden that he may, upon her confirmation, “prospectively appoint” her as an associate justice, “even though the actual vacancy in the office of Associate Justice is not expected to occur until the Court rises for the summer recess this year.”

I offer some initial thoughts on (1) what the OLC opinion says and means, (2) whether it is sound, (3) what Biden has in fact done, and (4) why Biden would have any interest in prospectively appointing Jackson.

(1) What does the OLC opinion say and mean?

Let me make clear at the outset that OLC has not opined that a prospective appointment of Jackson by Biden would make her an associate justice before Breyer retires from (or otherwise vacates) his office. On the contrary, OLC is speaking only to how a president might complete his role in the appointment process. What OLC is saying is that the president may complete that role by making a “prospective appointment”—an appointment, as I understand it, that does not take effect, in the essential sense of enabling the appointed person to occupy the office, until some future date or event (in Jackson’s case, a vacancy arising in Breyer’s seat).

OLC specifically states:

The completion of the appointment, however, does not mean that Judge Jackson assumes the office of Associate Justice. Rather, her entry on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective.

I find the word “assumes” in the first sentence to be vague. In the context of the opinion, I understand the first sentence to mean: “The completion of the [president’s act of] appointment, however, would not mean that Judge Jackson is then entitled to the office of Associate Justice.”

OLC also limits its advice on prospective-appointment authority by reciting its previously articulated position that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” It does not actually say that prospective appointments would be impermissible for vacancies that are not anticipated to occur during the appointing official’s own term of office, but that would seem to be the clear implication of its analysis.

OLC also does not address the question of what a commission must say in order to constitute a prospective appointment. As I have pointed out, the standard language for a judicial commission purports to confer immediate authority. So it would seem odd to use the same language for a prospective appointment.

(2) Is the OLC opinion sound?

As a former principal deputy in (and at times acting head of) OLC, I will attest to the widely recognized reality that OLC has a strong institutional bias in favor of presidential power.

That said, I hadn’t recalled the opinion by then-Assistant Attorney General William H. Rehnquist that the new OLC opinion invokes as precedent. Nor had I been aware of the three previous instances of prospective appointments of justices and judges (in 1869, 1922, and 1962) that the OLC opinion cites (pp. 4-5). These seem weighty. But I haven’t been able to locate the Rehnquist opinion and thus haven’t reviewed it, and OLC says in its opinion that it has not had the time needed to be “able to verify the accuracy of all the dates” for those instances. [Update: The now-public Rehnquist memo has nothing to do with the matter of prospective appointments. It is very strange that the new OLC opinion prominently miscites it as OLC precedent on the matter.]

More broadly, I wonder whether the OLC position contradicts Marbury v. Madison (1803). In that landmark opinion, Chief Justice Marshall states that once the president has made the appointment, “[t]he right to the office is then in the person appointed.” (Emphasis in original.) By OLC’s account, a prospective appointment by Biden would not confer on Jackson an immediate “right to the office.” Rather, her right to future “entry on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective.”

It’s possible, to be sure, that Marshall in Marbury could be said to have just been addressing the ordinary case in which a president appoints a judge to an existing vacancy. It’s also possible that he was wrong. But OLC’s failure to address the point leaves the question unresolved.

(3) What has Biden done?

We don’t know for certain whether Biden has issued a commission to Jackson. The Federal Judicial Center’s confused account of Jackson’s status would suggest that the Department of Justice’s Office of Legal Policy informed it that Biden issued a commission to her on April 8.

If Biden did issue a commission, we don’t know what it says. We don’t know in particular whether it purports to confer immediate authority on Jackson (in which case it might well be a nullity even if OLC’s advice about his ability to make a prospective appointment is correct).

It would be good for the White House to make a copy of the commission public.

(4) Why would Biden prospectively appoint Jackson?

Why Biden would have any interest in prospectively appointing Jackson, rather than in issuing her a commission once Breyer retires, is puzzling. What is gained by doing so? Why create a situation that would cast aspersions on the validity of her appointment?

It would seem an easy matter to coordinate with Breyer so that Biden’s issuance of the commission occurred immediately after Breyer’s retirement. It is in any event unlikely that any important matter at the Court would be decided in the short interval between his retirement and Jackson’s filling his seat.

The OLC opinion oddly asserts that a prospective appointment would “bring[] to an end the President’s and the Senate’s role in the process” and “would render the Senate’s consent final.” But was the White House really concerned that the Senate might have any “role in the process” after it confirmed Jackson’s nomination or that the Senate’s consent didn’t then become “final”? I don’t understand the basis for any such concerns. I don’t understand the basis for any such concerns. [Update (7:30 p.m.): The Rehnquist memo has just been made public, and it discusses the concern that that a motion for reconsideration in the Senate might lead to the rejection of a previously confirmed nomination. It further states: “It is well-established that the Senate loses its power to reconsider a nomination, if the President issues a commission to the appointee before the Senate acts on the motion.” So I now believe that Biden issued a commission to Jackson on April 8 in order to prevent any possibility of a successful motion for reconsideration, including in the event that Republicans regained control of the Senate any time before Breyer’s retirement.]

Law & the Courts

An End to KBJ Appointment Follies?

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I’m pleased to take note that the Federal Judicial Center’s bio page for Judge Ketanji Brown Jackson no longer mistakenly identifies her as already being an “Associate Justice, Supreme Court of the United States” and no longer states that she “received commission on April 8, 2022.” (In case the bio page changes yet again before Justice Breyer retires, here’s a preserved image of how it now reads.)

I hope that this means that President Biden hasn’t actually purported to issue her a commission. As I’ve explained, any such commission would be a nullity, as Biden needs to wait until the seat to which Jackson has been nominated—Breyer’s seat—is vacant before he can appoint Jackson to it. (And even if a commission before then were somehow possible on some sort of theory of a delayed effective date, Jackson obviously couldn’t become an associate justice in place of Breyer while Breyer continues to occupy his position.)

Law & the Courts

More on KBJ Appointment Follies

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Here is what I understand would be the conventional language of the commission by which President Biden would appoint Judge Ketanji Brown Jackson as a Supreme Court justice when Justice Breyer vacates his seat:

Know Ye That reposing special trust and confidence in the Wisdom, Uprightness, and Learning of Ketanji Brown Jackson, of the District of Columbia, I have nominated and, by and with the advice and consent of the Senate, do appoint her an Associate Justice of the Supreme Court of the United States and do authorize and empower her to execute and fulfil the duties of that Office according to the Constitution and laws of the said United States and to Have and to Hold the said Office, with all the powers, privileges, and emoluments to the same of right appertaining, unto her the said Ketanji Brown Jackson during her good behavior. [Underlining added.]

If Biden has actually purported to issue a commission to Jackson that contains this language, he is making a mockery of its solemn language. For until such time as Breyer vacates his seat, Biden has no power to “authorize and empower [Jackson] to execute and fulfil the duties” of the office of associate justice or to confer “all the powers, privileges, and emoluments” that come with it. His commission would therefore be a nullity.

If Biden has purported to issue a commission to Jackson with substantially different language, I’d be eager to see it. (It would also be a nullity.)

I continue to hold out hope that this White House has not been so incompetent as to allow Biden to issue a commission to Jackson before Breyer vacates his seat.

I’ll note further that the Supreme Court, unlike the badly confused Federal Judicial Center, does not list Jackson among its current members.

Law & the Courts

KBJ Appointment Follies

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Judge Ketanji Brown Jackson holds her notes at the end of her testimony on the third day of Senate Judiciary Committee confirmation hearings on her nomination to the Supreme Court on Capitol Hill in Washington, D.C., March 23, 2022. (Elizabeth Frantz/Reuters)

As I spelled out yesterday, President Biden nominated Judge Ketanji Brown Jackson “to be an Associate Justice of the Supreme Court of the United States, vice Stephen G. Breyer, retiring.” The term vice means “in place of.” The Senate acted on, and confirmed, that nomination. Therefore, Biden may appoint Jackson to Breyer’s seat once that seat is vacant—which according to Breyer’s stated plans will be at the end of the Court’s term in late June or early July. Any purported act of appointment made before the seat is vacant would be null.

So I was very surprised to discover yesterday that the Federal Judicial Center’s bio page for Judge Ketanji Brown Jackson identified her as “Associate Justice, Supreme Court of the United States” and stated that she “received commission on April 8, 2022” (the day after her Senate confirmation). How, I wondered, could the Federal Judicial Center, “the education and research agency for the federal courts,” mess up something so simple?

Things got even worse when the Federal Judicial Center added this explanatory note yesterday evening:

Judge Jackson has been appointed to the Supreme Court of the United States as an Associate Justice but will not begin to exercise the duties of the office until the seat to which she has been appointed is vacant.

The FJC apparently believes that both Jackson and Breyer are now associate justices, despite the fact that Jackson was nominated to replace Breyer. It also apparently believes that the Court now has nine associate justices, as well as the Chief Justice, in violation of 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices….”) At the same time, it continues to list Jackson as a D.C. Circuit judge.

It’s no answer to say, as the FJC does, that Jackson “will not begin to exercise the duties of the office until the seat to which she has been appointed is vacant.” She can’t be appointed to that seat until it is vacant. (And if she already occupies it, then it won’t become vacant until she resigns—which just illustrates the absurdity of the FJC’s gobbledygook.)

I had assumed that someone at the FJC somehow confused the White House ceremony for Jackson on April 8 with an actual commissioning. But it turns out that it might be even worse than that. I’m reliably informed that the FJC says that its misinformation on Jackson reflects what the Department of Justice’s Office of Legal Policy is telling it.

Set aside why an agency of the judicial branch would mindlessly regurgitate what someone in the executive branch tells it. Is it really the case that DOJ’s Office of Legal Policy has told the FJC that Jackson has received her commission? Does that mean that Biden has actually purported to execute a commission for Jackson—a commission that would be a nullity? Absent further evidence, I refuse to accept that the White House has been so incompetent on such an elementary matter.

Law & the Courts

This Day in Liberal Judicial Activism—April 14

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1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”   

2021—Fringe Democrats in the House and Senate announce their proposed bill to pack the Supreme Court by increasing the number of justices from nine to thirteen.  

Law & the Courts

Judge Jeffrey Sutton Against Universal Injunctions

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In a ruling yesterday in Arizona v. Biden, Sixth Circuit chief judge Jeffrey Sutton penned a unanimous opinion that granted a stay of a district court’s nationwide preliminary injunction that would have barred the Department of Homeland Security from implementing enforcement priorities and policies that the HHS Secretary set forth in a memorandum. Sutton also issued a concurring opinion that expressed his “considerable skepticism” about so-called “nationwide” or “universal” injunctions. Some excerpts (citations omitted):

I do not take issue with the court’s decision to extend the remedy beyond the Southern District of Ohio as to the three state claimants. When “exercising its equity powers,” a district court “may command persons properly before it to cease or perform acts outside its territorial jurisdiction.” But it is one thing to honor a federal court judgment issued in favor of, say, Arizona by the Southern District of Ohio anywhere in the country. It is quite another to do so for the 47 States that did not participate in the lawsuit….

A valid Article III remedy “operate[s] with respect to specific parties,” not with respect to a law “in the abstract.” That is why courts generally grant relief in a party-specific and injury-focused manner. In this same way, we do not remove—“erase”—from legislative codes unconstitutional provisions. Jonathan Mitchell, The Writ–of–Erasure Fallacy, 104 Va. L. Rev. 933, 1016–17 (2018). We merely refuse to enforce them in a case, thereby exercising “the negative power to disregard an unconstitutional enactment.” After a court has remedied a claimant’s injury, it is fair to ask what controversy remains for a court to adjudicate or remedy.

Call them what you will—nationwide injunctions or universal remedies—they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case. The law already has a mechanism for applying a judgment to third parties. That is the role of class actions, and Civil Rule 23 carefully lays out the procedures for permitting a district court to bind nonparties to an action. Nationwide injunctions sometimes give States victories they did not earn and sometimes give States victories they do not want. They always sidestep Rule 23’s requirements.

Such injunctions create practical problems too. The effect of them is to prevent the National Government from enforcing a rule or executive order without (potentially) having to prevail in all 94 district courts and all 12 regional courts of appeals. They incentivize forum shopping. They short-circuit the decisionmaking benefits of having different courts weigh in on vexing questions of law and allowing the best ideas to percolate to the top. They lead to rushes to judgment. And all of this loads more and more carriage on the emergency dockets of the federal courts, a necessary feature of any hierarchical court system but one designed for occasional, not incessant, demands for relief.

Law & the Courts

Philip Hamburger on Parental Free Speech in Education

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In a very interesting new paper titled “Education Is Speech: Parental Free Speech in Education,” law professor Philip Hamburger argues that recognition of education as speech has significant consequences for the speech rights of parents in the education of their minor children. From his introduction:

This Article makes two doctrinal arguments about speech.

One argument involves direct constraint. States simultaneously require parents to educate their minor children and offer state education free of charge. The combination means that states are forcing parents to choose between state education at no additional cost and their own choice of education at their own expense.

Being forced to educate their children, parents are not acting entirely voluntarily when they pay considerable sums to educate their children outside state schools. The combination of mandatory education and tuition-free state education is a direct constraint, compelling them to submit their children to government educational speech or pay to avoid it. For all but the most affluent, there is not even the opportunity to pay to opt out. Of course, the requirement that parents must educate their children is not formally a requirement that they subject their children to government educational speech. But there is little doubt about the reality for most Americans when compulsory education is accompanied with the offer of tuition-free state education.

A second argument, concerning an unconstitutional condition, has a clearer foundation in Supreme Court doctrine. Public education is a government benefit, and so cannot come with a condition that abridges the freedom of speech. All the same, states offer this subsidy on the condition that parents accept government educational speech in place of their own. In other words, parents are being pressured in a way that abridges their own educational speech and compels them to adopt the government’s.

The condition argument here can be summed up in terms of Brown v. Board of Education. The court in Brown held that public education was a government opportunity or benefit that could not be offered in violation of the Fourteenth Amendment—to which this Article merely adds: nor in violation of the First. This most central of cases thus reveals the doctrinal force of the speech condition argument. At the same time, it will be seen that both of the speech arguments give life to Brown’s unfulfilled promise of equality.

Hamburger’s analysis might well provide the foundation for an enterprising state attorney general to issue an opinion that the current funding system in the state for state schools is an unconstitutional condition on the freedom of educational speech. Such an opinion might well force the state legislature to open up funding to all parents or adopt some other remedy.

Law & the Courts

Can Biden Appoint KBJ to a Seat Other than Breyer’s? No

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Now that Judge Ketanji Brown Jackson’s nomination to the Supreme Court has been confirmed, the question whether Justice Breyer has actually announced a decision to retire is only of academic interest. Perhaps the only respect in which it theoretically matters at this point is that if Breyer has not made such an announcement, then it’s clear that he could reverse his mere stated intention. (Whether he could retract an actual announcement is arguably more complicated.)

But the theoretical question whether Breyer could decide not to retire has sparked some discussion of what would happen to Judge Jackson’s nomination in that event. I think that the answer is clear: Jackson having been confirmed to replace Breyer, President Biden (or any subsequent president) could appoint her to replace Breyer when Breyer does vacate the seat.

But a law professor or two on Twitter have contended (even if tentatively) that Biden could appoint Jackson to any other vacancy that arises in a seat of an associate justice. The argument, as I understand it, is that because each of the associate justices occupies the same statutory office, the Senate’s confirmation of Jackson to be an associate justice enables Biden to appoint her to any associate-justice seat.

Let me briefly explain why I believe this argument is clearly wrong:

1. Biden specifically nominated Jackson to fill Breyer’s seat: “I nominate Ketanji Brown Jackson, of the District of Columbia, to be an Associate Justice of the Supreme Court of the United States, vice Stephen G. Breyer, retiring.” (The term vice means “in place of.”) The Senate acted on, and confirmed, that nomination. That is therefore the only appointment that Biden could make of Jackson (without, that is, going through the whole nomination and confirmation process again).

2. It’s no accident that the president and the Senate have worked out a practice in which the president typically makes vice judicial nominations. That practice strikes an important balance of power between the president and the Senate.

To illustrate the point: Federal appellate judgeships are the same statutory office in the same way that associate-justice positions are. Or, if you’re disposed to dispute that point, federal appellate judgeships on the same court of appeals surely are.

If a vice nomination did not specify the seat to which a president could appoint a confirmed nominee, a president could nominate someone to a judgeship on, say, the Tenth Circuit and then, after Senate confirmation, appoint that same person to a judgeship on the D.C. Circuit. Or a president could nominate someone to replace a Ninth Circuit judge in Oregon and then, after Senate confirmation, appoint that same person to replace a Ninth Circuit judge in California.

3. To be clear: I am not contending here that the Constitution itself would bar the president from making a generic nomination to an associate-justice position or to a federal appellate judgeship. I am arguing, rather, that (a) the Constitution allows the president and the Senate to adopt a practice in which the president nominates someone only for a specific position and the Senate confirms that nomination only for that specific position, and (b) vice nominations embody that practice.

I will add that I have consulted with several people who are very experienced in the appointment process, some of whom have a strong disposition in favor of executive authority, and all agree with me on this matter. If there is anyone experienced in the appointment process who takes a different view, I’ve missed it.

The issue, I’ll note, would be of particular salience if, say, a vacancy were to arise before the Court’s argument session later this month. (There is no reason that I am aware of that anyone would anticipate such a vacancy.)

Law & the Courts

Has Justice Breyer Announced a Decision to Retire?

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The question of how exactly a Supreme Court justice or lower-court judge puts into effect a decision to retire is a surprisingly complicated one, and all the more so when the date of the retirement is at some point in the future. There is no federal statute that addresses the matter. For justices, the traditional practice, as I understand it, has been to send a letter to the president setting forth a decision to retire. But I don’t believe that lower-court judges have generally taken that approach. So while a letter to the president might well be sufficient, there is no reason to think that it is necessary. And why would it be, given that the justice is not the president’s subordinate?

In this post, I will address the question whether Justice Breyer has actually announced a decision to retire at a designated time. Specifically, will Breyer’s January 27 letter to President Biden suffice to effect Breyer’s retirement “when the Court rises for the summer recess this year”? Or will Breyer need to take some further action?

Two clarifications at the outset: (1) I am not addressing the distinct question whether Breyer could retract an announced decision to retire at a date, or upon an occurrence, in the future. I am addressing only whether he has in fact announced such a decision. (2) This is a purely academic inquiry. By engaging in it, I do not mean to suggest that there is any prospect at all that Breyer won’t in fact retire at the end of the Court’s term.

Let’s focus on the two key sentences in Breyer’s letter:

I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court of the United States, and to serve under the provisions of 28 U. S. C. § 371(b). I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.

In his first sentence, Breyer straightforwardly announces a decision to retire, but he doesn’t set forth the critical ingredient of when. In his second sentence, Breyer, I would argue, doesn’t in fact specify a time on which his decision will take effect. Rather, he merely states what he “intend[s]” as of January 27. His phrasing of “I intend this decision to take effect ….” falls well short of “This decision will take effect ….” Indeed, Breyer makes explicit that his then-current intention rests on his “assuming that by then my successor has been nominated and confirmed.”

Breyer might instead have written: “My decision will take effect when the Court rises for the summer recess this year if my successor has been nominated and confirmed by then, and, if not, then upon the subsequent confirmation of my successor.” But as law professor Richard Re points out in a very recent paper (“The Peril and Promise of SCOTUS Resignations”), Breyer might well have worded his letter as he did in order to give him “wiggle-room” in case “Breyer’s would-be replacement became stalled” and he wanted to prevent a Republican president elected in 2024 from being able to appoint his successor.

Let’s also compare Breyer’s January 27 letter to the retirement letters of Justices O’Connor, Souter, Stevens, and Kennedy. The letters from O’Connor, Stevens, and Kennedy all clearly announce decisions to retire.

O’Connor: “This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.”

(Longtime readers with excellent memories might recall that way back in 2010 I raised the separate question whether O’Connor had fully retired from judicial service (under 28 U.S.C. § 371(a)) or had chosen to remain eligible to serve on the lower courts (under 28 U.S.C. § 371(b)).)

Stevens: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.”

Kennedy: “This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b).”

By contrast, Souter, much like Breyer, merely states what he “intend[s]” to do: “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l).”

So the question becomes whether and how Souter later effected a firm decision to retire. A sufficient answer, it would seem, is provided by the touching exchange of letters between Justice Souter and the other justices on June 29, 2009. In their letter thanking Souter for his service to the Court and for “the privilege of your sturdy friendship,” the other eight justices refer (imprecisely, in my view) to the earlier “announcement of your decision to retire.” As part of his response, Souter states, “I will not sit with you at our bench again after the Court rises for the Summer this time.”

It’s reasonable to expect that Breyer and the other justices will have a similar exchange of letters at the end of this term in which Breyer can make crystal clear that he is actually retiring. But until he does so through that or some other means, I do not believe that he has taken the action necessary to effectuate his retirement at the end of the Court’s term.

Law & the Courts

This Day in Liberal Judicial Activism—April 13

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2001—Judge Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman. The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.” Barkett asserts that the district court injunction properly barred “public student prayer.” 

Law & the Courts

This Day in Liberal Judicial Activism—April 12

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1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers. 
 
2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.  

Law & the Courts

This Day in Liberal Judicial Activism—April 11

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Judicial Nominee Wendy Vitter (Screengrab via Politico Watch)

2018—“Progressive fury” (as CNN puts it) is unleashed on federal district nominee Wendy Vitter for declining to opine at her confirmation hearing whether she believes that Brown v. Board of Education was correctly decided. Malicious charges spread that Vitter supports racial segregation. 

Never mind that, like many other nominees, Vitter took the position that it was improper for her to comment on the rightness or wrongness of any Supreme Court ruling. Never mind that she committed to apply all existing precedents. Never mind that she testified that racial segregation is immoral. Never mind that no one identified anything in her life or career to suggest that she is racially biased. Never mind that she has earned the support of Democrats like New Orleans mayor Mitch Landrieu (who, among other things, called for the removal of city monuments honoring leaders of the Confederacy). 

What many on the Left really object to—or so it would seem from the questions posed at the hearing by Senate Democrats—is that Vitter is openly pro-life.  

2018—Federal district judge Manuel L. Real rules (in City of Los Angeles v. Sessions) that the Department of Justice, in administering a federal program to give grants to local governments to hire officers, cannot favor applicants who commit to address illegal immigration, and he enters a nationwide injunction against DOJ. Some fifteen months later, a Ninth Circuit panel will reverse Real’s ruling. 

2019—Accepting the Thomas Jefferson Foundation Medal in Law from his alma mater, the University of Virginia law school, federal district judge Carlton W. Reeves addresses what he calls the three “great assaults” on the federal judiciary. Reeves powerfully describes the first two assaults, in the Reconstruction Era and in the resistance to Brown v. Board of Education. But he then descends into rank partisanship as he decries the “third great assault on our judiciary,” which consists above all of tweets and comments by Donald Trump slamming various judges and rulings. There is plenty of room to deplore Trump’s comments without seeing in them anything remotely like the return of the Klan. 

Law & the Courts

This Day in Liberal Judicial Activism—April 10

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The U.S. Supreme Court building in Washington, D.C. (Molly Riley/Reuters)

2017—Livid that Senate Democrats’ historically idiotic filibuster of Neil Gorsuch’s nomination has led Republicans to abolish the 60-vote cloture threshold for Supreme Court nominations, Democratic senator Ed Markey vows that Senate Democrats will restore the filibuster for Supreme Court nominations as soon as they regain control of the Senate. But after Senate Democrats do take control of the Senate in 2021, neither Markey nor Senate Democrats will make any such effort. Instead, Markey will launch an effort to pack the Supreme Court. 

Law & the Courts

This Day in Liberal Judicial Activism—April 9

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The Supreme Court of the United States in Washington, D.C. (Andrew Kelly/Reuters)

2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments. The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public. The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent). The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive. In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.  

2018—The Ninth Circuit issues a 6-5 en banc ruling in Rizo v. Yovino, with Judge Stephen Reinhardt listed as the author of the six-judge majority holding that an employer’s consideration of prior pay is impermissible under the Equal Pay Act. Never mind that Reinhardt died eleven days earlier and that his putative vote was essential to the outcome. 

In February 2019, a unanimous Supreme Court will summarily reverse the Ninth Circuit on the ground that Reinhardt could not take part in the case after his death: “Federal judges are appointed for life, not for eternity.” 

2018—Taking what it calls “an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders,” a Third Circuit panel rules (in United States v. Grant) that a man sentenced to a term of 65 years without parole for brutal crimes (including murder) that he committed when he was 16 years old has a presumptive right to be released from prison before he turns 65. 

Law & the Courts

This Day in Liberal Judicial Activism—April 8

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2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. (The panel will later substitute in a slightly different version of its opinion.)  

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit. 

2015—Shirley, you can’t be serious! 

The day after Wisconsin voters amend the state constitution to alter the method for determining who is chief justice of the Wisconsin supreme court, Wisconsin chief justice Shirley S. Abrahamson files a federal lawsuit contending that the amendment violates her constitutional rights. The legal reasoning in Abrahamson’s complaint reflects just the sort of activist nonsense that Abrahamson has been notorious for during her decades on the court.

Less than three months later, the federal judge handling the case—an Obama appointee, no less—will grant summary judgment against Abrahamson.  

Law & the Courts

This Day in Liberal Judicial Activism—April 7

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(Zolnierek/Getty Images)

1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.) 

 1969—In majority opinions by Justice Brennan in Kirkpatrick v. Preisler and Wells v. Rockefeller, the Supreme Court, building on its 1964 ruling in Wesberry v. Sanders (see This Day for February 17), rules that the states, in crafting their congressional redistricting plans, must aim to “achieve precise mathematical equality” in the populations of congressional districts. It rejects the argument that there is any “fixed numerical or percentage population variance small enough to be considered de minimis.”  

In dissent, Justice Harlan laments that the Court “transforms a political slogan [‘one man, one vote’] into a constitutional absolute”: 

Strait indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote…. 

[I]nsistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State.  

Harlan also presciently observes that “the Court’s exclusive concentration upon arithmetic blinds it to the realities of the political process…. The fact of the matter is that the rule of absolute equality is perfectly compatible with ‘gerrymandering’ of the worst sort.”  

1994—In a divided Ninth Circuit panel decision in Hartooni v. INS, Judge Harry Pregerson invents a rule that a reviewing court must treat an asylum applicant’s testimony as credible and true unless the immigration judge made “an explicit finding that any specific statement … was not credible.”  

Pregerson’s invention will taint Ninth Circuit immigration rules for nearly three decades, until the Supreme Court unanimously rules in 2021 (in Garland v. Dai) that the Ninth Circuit’s “special rule” is an “embellishment” that “mistakenly flips [the proper] standard on its head.” 

Law & the Courts

This Day in Liberal Judicial Activism—April 6

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1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.  

As one of Blackmun’s former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the [decades] since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)   

2016—In an Atlantic essay, lefty law professor Erwin Chemerinsky salivates over the prospect that President Obama’s hoped-for appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust). 

And all of that is before Chemerinsky even begins briefly sketching his “dream” agenda. 

Alas for Chemerinsky’s dreams, Senate Republicans will succeed in blocking action on Garland’s nomination, and Donald Trump will defeat Hillary Clinton in the presidential election seven months later. 

Law & the Courts

Judge William Pryor’s ‘Against Living Common Goodism’

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Eleventh Circuit chief judge William Pryor has just published a critique of law professor Adrian Vermeule’s “common good constitutionalism,” an approach to constitutional interpretation that Vermeule has set forth both in some articles and in a recent book with that title. I can’t succinctly summarize Pryor’s critique, so I will instead offer some excerpts:

I want … to address a kind of results-oriented jurisprudence that is indistinguishable in everything but name from Justice Brennan’s living constitutionalism: Harvard Law Professor Adrian Vermeule’s so-called common-good constitutionalism—a variant of what I call living common goodism. Vermeule’s approach, in his words, “take[s] as its starting point substantive moral principles that conduce to the common good, principles that [judges] . . . should read into the majestic generalities and ambiguities of the written Constitution.” [Pryor’s italics.] Replace “common good” with “human dignity” and Vermeule’s living common goodism sounds a lot like Brennan’s living constitutionalism. Indeed, the difference between Brennan’s living constitutionalism and Vermeule’s living common goodism consists mainly in their differing substantive moral beliefs; in practice, the methodologies are the same….

The Constitution does not give judges the power to “read into” the text of the Constitution “substantive moral principles that conduce to the common good.” And fashioning that kind of jurisprudence would conflict with natural law. As Professor Robert George has explained, when courts exceed their jurisdiction and usurp “legislative authority,” whether for good or bad causes, “they violate the rule of law by seizing power authoritatively allocated by the framers and ratifiers of the Constitution to other branches of government.”…

A major theme of Vermeule’s recent popular-level polemic defending living common goodism is that it supposedly prevailed at the Founding. He contends that living common goodism “is the original understanding” of the Constitution. In his revisionist historical account, “the classical legal tradition structured and suffused our law” “[r]ight from the beginning, long before the Constitution of 1789.” And living common goodism “has since been displaced . . . by originalism,” which he labels as a creature of the late 20th century. Rubbish!…

Vermeule’s argument for that historical revisionism does not withstand scrutiny. He argues that three opinions—the first Justice Harlan’s dissent in Lochner v. New York, the decision of the Supreme Court in United States v. Curtiss-Wright, and the decision of a New York court in Riggs v. Palmer— “illustrate how deeply the classical legal tradition has always infused our law.” Setting aside whether these decisions support Vermeule’s methodology, it strains credulity to suppose that a dissenting opinion from 1905, a Supreme Court decision from 1936, and a state-court decision from 1889 could establish that living common goodism is deeply rooted in the American tradition: that it “structured and suffused our law” “[r]ight from the beginning, long before the Constitution of 1789 was written.” Vermeule’s argument is about as persuasive as using Roe v. Wade as evidence that living constitutionalism is deeply rooted in our legal tradition.

Pryor goes on to argue that both Harlan’s dissent in Lochner and the Court’s ruling in Curtiss-Wright were originalist and that “most American courts … rejected Riggs in favor of the textualist approach [Vermuele] says was invented after the Second World War. He argues more broadly that Vermeule’s revisionism “flouts a mountain of historical evidence” dating back to the Founding era.

Law & the Courts

What Lindsey Graham Actually Said

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Yesterday a Politico reporter covering the Senate Judiciary Committee deliberations on the nomination of Ketanji Brown Jackson tweeted out: “Graham says if Republicans were in charge of the committee and control of the Senate, Jackson would not have gotten a hearing.” Only more than an hour later, after her initial tweet had gone viral, did she follow up (without any clarifying commentary) with Senator Lindsey Graham’s “full quote”:

If we get back the Senate and we’re in charge of this body and there’s judicial openings, we will talk to our colleagues on the other side, but if we were in charge she would not be before the committee. You would have had someone more moderate than this. [Emphasis added.]

The Politico reporter’s article yesterday somehow saw fit to exclude the last sentence from her quote of Graham.

In context, it ought to be obvious that Graham was stating that if Republicans had been in the Senate, they would have exercised their leverage to make sure that President Biden nominated “someone more moderate” than Jackson to the Breyer vacancy. In other words, Jackson “would not be before the committee” (“would not have gotten a hearing,” per the initial paraphrase) because, in Graham’s view, Biden would not have nominated her. (Of course, there is also ample reason to question whether Breyer would even have announced his retirement, and created a future vacancy, if Republicans controlled the Senate.)

There is, of course, no news in the elementary proposition that someone who has not been nominated would not have a confirmation hearing. Nor is there any news in the fact that a Senate Republican majority would try to moderate Biden’s picks, just as a Senate Democratic majority would try to moderate a Republican president’s picks.

The reporter’s initial tweet and her full article have (understandably) been misread to mean that Graham was saying that if the Republicans were in control of the Senate and if Biden had nominated Jackson, the Republicans would not have given Jackson a Judiciary Committee hearing. That misreading appears to have metastasized into the broader assertion that Graham was saying that no Biden nominee would have received a hearing. Given Graham’s ardent support for the candidacy of Michelle Childs, that is a very bizarre assertion to impute to him.

But it gets even worse. One reporter goes so far as to contend that Graham, in her mistaken account of his position, was “overtly acknowledg[ing] his party’s strategy.” So she imputes to Senate Republicans generally the position that she mistakenly attributes to Graham.

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‘Why Edmund Burke Would Overrule Roe

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That’s the title of an excellent new law-review article by Erin Hawley. In his concurring opinion two years ago in June Medical Services v. Russo. Chief Justice Roberts invoked Edmund Burke in support of his decision to adhere to a four-year-old precedent that he (in his words) “continue[d] to believe … was wrongly decided.” Taking a much deeper dive into Burke’s views, Hawley explores how those views bear on the decision whether to overturn Roe v. Wade. Here is her concluding paragraph:

Adherence to precedent, even wrong precedent, may sometimes be necessary to “avoid an arbitrary discretion in the courts.” But the Court’s abortion cases are not entitled to traditional stare decisis: they are egregiously wrong, hopelessly unworkable, and remove from democratic debate a divisive social issue. To adhere to a precedent that is so clearly wrong and so obviously harmful does nothing to promote the rule of law. Edmund Burke believed in the persuasiveness of historical wisdom, but he would caution that the precedent must first possess certain qualities to be accorded the “force of law.” Roe does not possess these qualities. It was not a humble decision but a breathtaking break from tradition. It has no part in the bank and capital of the nations and ages but is an abrupt historical aberration. The Court’s abortion jurisprudence fails Burke’s test because it is contradictory, disagreeable to general legal principles, and decided in a time when the Supreme Court was willing to extrapolate relying on emanations from the text of the Constitution. To say that one must stick with Roe and its progeny is to suggest that the judicial branch cannot err. But humility is best shown in the ability to admit that one was wrong. The humble approach is to reverse Roe v. Wade.

Law & the Courts

This Day in Liberal Judicial Activism—April 5

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2018—If the transnationalists have their way, look for a ruling like this to come our way soon: The Colombia Supreme Court rules that the Amazon river is a rights-bearing entity and that environmental activists can sue on its behalf to enforce its rights. The court orders Colombian governmental authorities to formulate a series of action plans to combat deforestation and climate change. 

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This Day In Liberal Judicial Activism—April 4

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1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas will become the longest-misserving justice in history. 

2017—“The goalposts have been moving over the years,” asserts the en banc Seventh Circuit majority in Hively v. Ivy Tech Community College. Overriding its own precedent and contradicting nine other circuits, the majority holds that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII. 

In a separate concurring opinion, Judge Richard A. Posner, advocating a “form of [statutory] interpretation” that he labels “judicial interpretive updating,” states that he “would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” 

In her dissent, Judge Diane S. Sykes, joined by two colleagues, explains that “we do not sit as a common-law court free to engage in ‘judicial interpretive updating,’ as Judge Posner calls it, or to do the same thing by pressing hard on tenuously related Supreme Court opinions, as the majority does.” 

Law & the Courts

This Day in Liberal Judicial Activism—April 3

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(aaron007/Getty Images)

2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing. 

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”  

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook: 

“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.” 

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This Day In Liberal Judicial Activism—April 2

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1998—In an oral-history interview, liberal California supreme court justice Stanley Mosk explains that one big difference between him and former California supreme court justice Rose Bird, whom voters removed from office in 1986, is that he took his judicial oath seriously: 

 Rose Bird was pilloried because she generally voted to find some defect in death penalty convictions and to reverse them. I probably don’t like the death penalty any more than she does. As a matter of fact, I think the death penalty is wrong, that a person has no right to kill, and the state has no right to kill. But the difference is that I took an oath to support the law as it is and not as I might prefer it to be, and therefore, I’ve written my share of opinions upholding capital judgments.  

2007—In Massachusetts v. EPA, the Supreme Court rules by a 5-4 vote, that the state of Massachusetts has standing to challenge the Environmental Protection Agency’s denial of a petition to begin regulating “greenhouse gases.” Justice John Paul Stevens’s majority opinion further rules that the EPA unlawfully declined to exercise regulatory authority over such gases. 

Chief Justice Roberts and Justice Scalia each write for the four dissenters. Roberts observes that the majority has no support for its claim that Massachusetts is “entitled to special solicitude” in the analysis of standing. Its status as a state, he explains, “cannot compensate for [its] failure to demonstrate injury in fact, causation, and redressability.” The majority having decided otherwise, Scalia disagrees with its assessment of the EPA’s action: 

“The Court’s alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency.” 

2015“Judicial-identity disorder” is a condition that afflicts judges who experience significant discontent with the role they were assigned when they took office. JID typically manifests itself in judicial decisions that are inconsistent with the judicial role and in behavior that reflects a severe and pervasive discomfort with neutrally applying the law. Unfortunately, no effective treatment for the condition is currently available. 

Federal district judge Jon S. Tigar, appointed by President Obama in 2013 to the Northern District of California, quickly joins the ranks of judges manifesting symptoms of JID, as he issues an order ruling that a California prisoner, Jeffrey Norsworthy, is likely to succeed on the merits of his claim that prison officials have violated his Eighth Amendment rights by not providing him sex-reassignment surgery. Tigar orders the state to “take all of the actions reasonably necessary to provide Norsworthy sex reassignment surgery as promptly as possible.”  

Law & the Courts

KBJ Won’t Embrace Declaration of Independence on Natural Rights

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Judge Ketanji Brown Jackson: “I do not hold a position on whether individuals possess natural rights.” (See p. 79 of her response to written questions.)

Jackson’s answer comes immediately after this Q&A:

Please explain, in your own words, the theory prevalent among members of the Founding Fathers’ generation that humans possess natural rights that are inherent or inalienable.

[KBJ] RESPONSE: The theory that humans possess inherent or inalienable rights is reflected in the Declaration of Independence, which states: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.”

Thus, by her own account, Jackson doesn’t embrace the basic American creed set forth in that passage from the Declaration.

As one friend commented to me, since Jackson can’t say what a woman is, it’s not surprising that she doesn’t believe that human beings have natural rights.

(Of course, the question of what role, if any, natural rights should play in constitutional decisionmaking is distinct from the question whether natural rights exist.)

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Excellent D.C. Conference on Religious Liberty and the Law—Friday, April 8

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I’m very pleased to highlight a conference—“Religious Liberty & Law: In the Courts, In the Public Square, & In Administration”—that the Ethics and Public Policy Center and I are co-hosting with Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State next Friday, April 8, from 9:00 a.m. to 1:30 p.m. at the Mayflower Hotel in the heart of D.C.

The event includes two panels of excellent speakers and a lunchtime conversation featuring former Solicitor General Paul Clement.

The event (including both breakfast and lunch) is free. I hope to see you there. Please register here now.

Law & the Courts

This Day in Liberal Judicial Activism—April 1

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2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place.  

2013—The Supreme Court unanimously affirms a ruling by Ninth Circuit judge Stephen Reinhardt.  

April Fool’s! Just kidding. 

Instead, in a per curiam opinion (in Marshall v. Rodgers), the Supreme Court overturns a Ninth Circuit panel decision joined by Reinhardt and his lefty colleague William A. Fletcher (and authored by a visiting district judge). The Ninth Circuit panel had granted the claim by a habeas petitioner that the state of California had violated his Sixth Amendment right to effective assistance of counsel. But, explains the Supreme Court, the panel’s conclusion that the habeas claim was supported by “clearly established Federal law” rested on its “mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific rule that this Court has not announced.” 

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Kagan (Plus Seven) Versus Breyer on Statutory Interpretation

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Today’s 8-1 ruling in Badgerow v. Walters on an arcane issue under the Federal Arbitration Act displays a sharp divide between the textualism of Justice Kagan’s majority opinion and the pragmatism/purposivism of Justice Breyer’s dissent. It’s almost sad that, near the end of his twenty-eight years on the Court, Breyer finds himself so alone on his hallmark approach. (Almost.)

In her majority opinion, Kagan explains that the “distinctive [statutory] language” on which the Court rested a 2009 ruling on Section 4 of the Federal Arbitration Act is missing from the provisions (Sections 9 and 10) at issue in this case. She faults the lower courts and Justice Breyer for concocting a “uniformity principle” that would require that those provisions be read like Section 4: “We have no warrant to redline the FAA, importing Section 4’s consequential language into provisions containing nothing like it.”

As Kagan puts it, “Walters’s more thought-provoking arguments sound not in text but in policy,” as “Walters—now joined by the dissent—preaches the virtues of adopting look-through as a ‘single, easy-to-apply jurisdictional test’ that will produce ‘sensible’ results.” But the “topline answer” to “Walters’s (and the dissent’s) what-makes-best-sense assertions” is the “obvious[]” proposition that “Even the most formidable policy arguments cannot overcome a clear statutory directive.” More:

“It is not for this Court to employ untethered notions of what might be good public policy to expand our jurisdiction.” Whitmore v. Arkansas, 495 U. S. 149, 161 (1990). However the pros and cons shake out, Congress has made its call. We will not impose uniformity on the statute’s non-uniform jurisdictional rules.

As Kagan notes, the position she adopts is the position of “fidelity to text” that conservative Fifth Circuit judge James Ho took in dissent in the “just-issued Circuit precedent” that the panel below was bound to follow.

Here is how Breyer begins his dissent:

When interpreting a statute, it is often helpful to consider not simply the statute’s literal words, but also the statute’s purposes and the likely consequences of our interpretation. Otherwise, we risk adopting an interpretation that, even if consistent with text, creates unnecessary complexity and confusion. That, I fear, is what the majority’s interpretation here will do.

Breyer acknowledges that the majority’s reading “may be consistent with the statute’s text,” but he objects that it “creates what I fear will be consequences that are overly complex and impractical.” His own reading, he maintains, is not foreclosed by the statutory text and promotes “simplicity, comprehension, workability, and fairness.” Plus, he argues, it’s reinforced by the FAA’s legislative history. And here is how he ends his dissent:

I suggest that by considering not only the text, but context, structure, history, purpose, and common sense, we would read the statute here in a different way. That way would connect the statute more directly with the area of law, and of human life, that it concerns. And it would allow the statute, and the law, to work better and more simply for those whom it is meant to serve.

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Where Is Judge Jackson’s ‘Demonstrated Commitment’?

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Judge Ketanji Brown Jackson testifies during her Senate Judiciary Committee confirmation hearing on her nomination to the Supreme Court, on Capitol Hill in Washington, D.C., March 22, 2022. (Michael A. McCoy/Reuters)

During the September 2005 hearing on John Roberts’ nomination to be chief justice, then-senator Joe Biden compared such gatherings to a “Kabuki dance,” with nominees bobbing, weaving, and trying not to disclose anything substantive. Last week, during her turn on that Judiciary Committee dance floor, President Biden’s Supreme Court nominee, Ketanji Brown Jackson, actually said quite a bit about the kind of justice she would be. The question this time, however, is whether we should believe her.

The issue was Jackson’s judicial philosophy, one of the most important components of a nominee’s qualifications for judicial service. The phrase “judicial philosophy” is a somewhat clunky label for Jackson’s understanding of what her job would be and how she should do it. It includes her view of the “judicial power” that the Constitution gives the judiciary and her method for exercising that power. Justice Clarence Thomas has defined the “judicial task” as “interpret[ing] and apply[ing] written law to the facts of particular cases.” The oath of judicial office requires judges to perform these tasks “impartially.” A nominee’s judicial philosophy, therefore, tells us what kind of justice he or she would be.

Last year, when Biden nominated Jackson to the U.S. Court of Appeals, she told the Senate Judiciary Committee that “I do not have a judicial philosophy per se.” All she would say was that she applies “the same method of thorough analysis to every case” and follows any “binding precedents.” That, however, is the minimum that we should expect from any judge. Once on the Supreme Court, Jackson will be setting precedents for other courts to follow; hence, the need to get a concrete picture of her judicial philosophy.

On Tuesday, Judiciary Committee chairman Richard Durbin (D., Ill.) opened the questions by asking about her judicial philosophy. This time, she had plenty to say. “I am acutely aware that, as a judge in our system, I have limited power, and I am trying in every case to stay in my lane.” Sounding very much like Thomas, Jackson explained that her focus is on the “interpretation and application of the law to the facts in the case.” This, she said, “is where I’m really observing the constraints on my judicial authority.”

Those constraints include ensuring that she has jurisdiction, “adherence to text,” and “focusing on the original public meaning because I’m constrained to interpret the text.” Interpretation requires “trying to figure out what those words mean as they were intended by the people who wrote them.” These, plus adherence to precedent, are “constraint[s] on judicial authority” and “come into play in terms of my judicial philosophy.”

During her exchange with Senator Charles Grassley (R., Iowa), Jackson rejected the idea “that there is a living Constitution in the sense that it’s changing and it’s infused with . . . the policy perspective of the day.” Later, in response to Senator Mike Lee (R-Utah), she said that “in order to interpret provisions of the Constitution, we look to the time of the founding and ascertain . . . the original public meaning.” Later, she reiterated the claim, telling Senator Ben Sasse (R., Neb.) that “I believe that the Constitution is fixed in its meaning. I believe that it is appropriate to look at the . . . original public meaning of the words . . . because again, that a limitation on my authority.”

Previous Democratic Supreme Court nominees Elena Kagan, Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsburg never used the phrase “original public meaning.” Neither did Republican nominees Roberts or Samuel Alito. But Jackson did multiple times and, with a liberal dose of limits, constraints, and “bound by the text,” the hearing at times almost resembled a Federalist Society event.

In March 2017, Senator Amy Klobuchar (D., Minn.) criticized Supreme Court nominee Neil Gorsuch for believing that “the words and phrases of the Constitution should be interpreted according to their original public meaning or how the Founders and their contemporaries would have understood them.” She and 39 other current Democrats voted to both filibuster and oppose Gorsuch’s nomination.

What is the difference between what Jackson said last week about original public meaning being the basis of interpretation and what Gorsuch said that brought almost complete Democratic opposition? What’s the difference between Jackson saying last week that “the Constitution is fixed in its meaning” and Gorsuch’s writing in September 19 that “the Constitution’s original meaning is fixed”?  The answer comes from the very left-wing groups that today strongly back Jackson’s nomination. After Biden won the 2020 election, more than 70 of them issued a statement urging him to choose judicial nominees with a “demonstrated commitment” to furthering “the administration’s priorities.”

There you have it. Axioms such as “actions speak louder than words” or “talk is cheap” counsel that, even under oath, a judicial nominee’s carefully scripted statements may not be what they seem. The test is whether a nominee has a “demonstrated commitment” to the judicial philosophy they describe. After all, who in their right (or left) mind believes that Biden would nominate, and liberals would support, a Supreme Court nominee they thought would actually use what Jackson described last week as her judicial philosophy?

No, Democrats opposed Gorsuch because they believed what he said and were convinced of his demonstrated commitment to the original public meaning as the basis of interpretation. Democrats will support Jackson because they do not believe what she said and are convinced that her demonstrated commitment lies elsewhere.

In addition to appropriate legal experience, a demonstrated commitment to the judicial philosophy prescribed by America’s Founders is a necessary qualification for service on the Supreme Court. Jackson doesn’t have it.

Law & the Courts

This Day in Liberal Judicial Activism—March 31

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1958—In Trop v. Dulles, the Supreme Court, by a 5 to 4 vote, invalidates the sentence of forfeiture of citizenship imposed on a soldier who deserted during wartime. Illustrating two of the gimmicks of the liberal judicial activist—abstraction far removed from the text of the Constitution and invocation of the Living Constitution—Chief Justice Warren’s plurality opinion declares that the “basic concept underlying the Eighth Amendment[’s bar on cruel and unusual punishments] is nothing less than the dignity of man” and that the Eighth Amendment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” (Somehow those “evolving standards” are seldom broadly reflected in actual legislation.)   

Justice Frankfurter’s dissent for four justices points out that wartime desertion is a capital offense “and has been so from the first year of independence.” Therefore, “to insist that denationalization is ‘cruel and unusual’ punishment is to stretch that concept beyond the breaking point.” Asks Frankfurter rhetorically: “Is constitutional dialectic so empty of reason that it can be seriously urged that loss of citizenship is a fate worse than death?” Even far more in recent decades than in 1958, the answer to Frankfurter’s question is plainly yes.

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Here’s What We Know about Judge Jackson’s Record on Child-Pornography Sentences

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Judge Ketanji Brown Jackson listens to questions during her confirmation hearing on Capitol Hill in Washington, D.C., March 22, 2022. (Elizabeth Frantz/Reuters)

Judge Ketanji Brown Jackson’s sentencing pattern in child-pornography cases was one of the big issues raised in last week’s hearings before the Senate Judiciary Committee. Clarity on this issue is needed before the Committee, and then the full Senate, make their decision regarding her nomination to the U.S. Supreme Court.

Federal law distinguishes among three types of child-pornography cases: production, possession, and distribution. During the hearing, Democrats repeatedly offered two different standards for evaluating Jackson’s sentences for these crimes. First, Democrats said we should compare Jackson’s sentences to those of U.S. District Court judges nationally.

The risk, of course, is that this might expose a broader failure of federal judges to grasp the unique devastation that child pornography wreaks on victims. But let’s do what Democrats said and compare both the length of Jackson’s sentences and their relation to the range recommended by the U.S. Sentencing Commission’s guidelines with the national average.

By either measure, based on the Commission’s most recent data, Jackson’s sentences were significantly more lenient than other federal judges for all three categories of child-pornography crimes. First, her sentences were 35 percent below the national average for production, 57 percent below for possession, and 47 percent below for distribution. Second, Jackson sentenced below what the guidelines recommended in every case in every category. She did so 48 percent more often than the national average for production, 51 percent for possession, and 36 percent for distribution.

Democrats also suggested that Jackson’s sentencing record in child-pornography cases mirrored that of judges appointed by President Donald Trump. When the questioning of the nominee opened on March 22, however, Chairman Richard Durbin (D., Ill.) could come up with only a single case by a single Trump-appointed judge. He returned to the topic that afternoon, but used the same lone example of a Trump-appointed judge imposing a sentence for possession below the sentencing guidelines’ recommendation.

Including what Durbin left out paints quite a different picture. Many of Trump’s appointees to the U.S. Court of Appeals had, like Jackson, previously served on the U.S. District Court. In stark contrast to Jackson, 45 percent of their sentences for child-pornography crimes were within or above the range recommended by the guidelines. Oops.

So one thing that we know is that, using either standard demanded by Judiciary Committee Democrats, Jackson’s sentences in all three categories of child-pornography crimes were significantly more lenient than other federal judges. In fact, in more than half of her child-pornography-distribution cases, Jackson did not add a single day to the mandatory-minimum sentence already imposed by Congress.

The other thing we know is that her record regarding child pornography is larger than her sentences in these cases. For example, while Jackson was serving as vice chairman of the Sentencing Commission, it issued a report criticizing the federal guidelines as “outdated.” She has also speculated that many child-pornography criminals are more interested in technology than in children.

Such a blindspot is especially disturbing since all categories of child-pornography crimes inflict ongoing, often life-long, harm on children. The Sentencing Commission’s reports explain that these crimes are growing “substantially both in total numbers and as a percentage of total [court] caseload.” Citing myriad studies and Senate reports, the Supreme Court stated in New York v. Ferber (1982): “Sexually exploited children are unable to develop healthy affectionate relationships in later life, have sexual dysfunctions, and have a tendency to become sexual abusers as adults.”

The Court continued, “Pornography poses an even greater threat to the child victim than does sexual abuse or prostitution. Because the child’s actions are reduced to a recording, the pornography may haunt him in future years, long after the original misdeed took place. A child who has posed for a camera must go through life knowing that the recording is circulating within the mass distribution system for child pornography.”

And in Paroline v. United States (2014), the Supreme Court acknowledged that “the full extent of this victim’s suffering is hard to grasp.” Ongoing distribution of the images of her rape, the Court said, “meant the wrongs inflicted upon her were in effect repeated.” As she put it in a victim impact statement: “Every day of my life I live in constant fear.” This resulted in depression, drug abuse, the inability to care for herself, and the need for long-term therapy.

As America’s founders designed it, the Senate’s role in the judicial-appointment process is to prevent the appointment of “unfit characters” by identifying “special and strong reasons” why a nominee should not be appointed. Every Senator must determine whether, based on this and other issues, those reasons apply regarding Jackson’s nomination to replace Justice Stephen Breyer. Doing so requires accurate and complete information rather than spin and distraction. When it comes to child-pornography crimes, Jackson’s record includes downplaying their seriousness followed by a consistent pattern of lenient sentences.

Law & the Courts

This Day in Liberal Judicial Activism—March 30

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1989—According to the logbook maintained by the staff of the Morristown public library, squatter Richard R. Kreimer “spent 90 minutes—twice—staring at reference librarians.” In response to this and other highly disruptive behavior, the library crafts written rules that prohibit, among other things, “unnecessary staring”. But, in a wild ruling, federal district judge (and, later, Clinton appointee to the Third Circuit) H. Lee Sarokin declares the rules facially unconstitutional. 

2001After nearly six years in which his preliminary injunction has operated to prevent Indiana from implementing an informed-consent statute for abortion that is materially identical to the provisions that the Supreme Court held to be constitutionally permissible in 1992 in Planned Parenthood v. Casey, federal district judge David F. Hamilton enters a permanent injunction against the statute. In doing so, Hamilton rests heavily on a statistical study, conducted by a sociologist at the Alan Guttmacher Institute, that related entirely to the effects of a waiting-period provision in Mississippi. Never mind that the Seventh Circuit had already determined, in a 1999 case involving Wisconsin’s informed-consent law, that the Mississippi study should not be relied on. A Seventh Circuit panel (with abortion radical Diane Wood in dissent) later reverses Hamilton’s injunction. 

In 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to a federal appellate seat. 

2020—Federal district judge Lee Yeakel issues a temporary restraining order that exempts all abortion procedures from the Texas governor’s emergency coronavirus order that postpones non-essential medical procedures until April 21. 

The very next day, a Fifth Circuit panel will block Yeakel’s TRO from taking effect. In its written ruling a week later granting the state’s request for the “drastic and extraordinary” remedy of a writ of mandamus against the TRO, the panel will explain that Yeakel “ignored the framework governing emergency public health measures,” “wrongly declared the [governor’s order] an ‘outright ban’ on pre-viability abortions,” and “usurped the state’s authority to craft emergency health measures.” 

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This Day in Liberal Judicial Activism—March 29

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2000—In dissent (in City of Erie v. Pap’s A.M.), Justice Stevens, joined by Justice Ginsburg, opines that an ordinance generally barring public nudity violates First Amendment speech protections. Amidst discussion of pasties and G-strings, Stevens complains that the ordinance was adopted in response to a specific concern about nude dancing at strip clubs rather than about public nudity in general. So what? As Justice Scalia responds: “As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.”