Law & the Courts

Today’s Opinion on Deference to Agency Interpretations of Agency Rules

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By a 5-4 vote in Kisor v. Wilkie, the Supreme Court today declined to reject so-called Auer deference,* the judicial practice of deferring to a federal agency’s reasonable reading of its own regulations.

Stated at this very general level, the ruling might sound like a significant defeat for those seeking to rein in the administrative state. But in revisiting what Auer deference means, Justice Kagan’s majority opinion goes so far to cabin it that there may be little or no operational difference between her reconception of Auer deference and Justice Gorsuch’s flat-out rejection of it. In short, if this is a loss, I wish that many other losses over the years had been so minor.

1. Let’s take a look at the positions of the various justices:

a. Kagan’s lead opinion garnered a majority—herself, her three liberal colleagues, and the Chief Justice—for most of its parts, but lost the Chief Justice on two parts.

In one majority portion (Part II-B) of her opinion, Kagan set forth several limits on the application of Auer deference. First, “the possibility of deference can arise only if a regulation is genuinely ambiguous, … even after a court has resorted to all the standard tools of interpretation.”

Second, even where a rule is genuinely ambiguous, a court, in deciding whether to accord Auer deference to the agency reading, “must make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.” (Emphasis added.) “The inquiry on this dimension does not reduce to any exhaustive test.” But some essential ingredients include whether the agency reading is actually the agency’s authoritative position; whether the reading “implicate[s] [the agency’s] substantive expertise”; and whether the reading reflects the agency’s “fair and considered judgment.”

In a plurality portion of her opinion (Part III-A, joined only by her three liberal colleagues), Kagan argued that Auer deference is consistent with the Administrative Procedure Act’s mandate that courts “determine the meaning” of an agency rule.

In another majority portion (Part III-B), Kagan concluded that stare decisis considerations cut strongly against rejecting Auer deference.

b. Chief Justice Roberts wrote a brief concurring opinion “to suggest that the distance between the majority and Justice Gorsuch is not as great as it may initially appear.” As he pointed out, Kagan’s account of “the prerequisites for, and limitations on, Auer deference” are very similar to Gorsuch’s list of “the reasons that a court might be persuaded to adopt an agency’s interpretation of its own regulation.”

c. In his own opinion for himself and Justices Thomas, Alito (in large part), and Kavanaugh, Justice Gorsuch argued (in Part II) that Auer deference violates the Administrative Procedure Act. At the same time, he agreed with the Chief that there may be little practical difference between Kagan’s confining of Auer deference and outright rejection of it: As he put it, the “silver lining” is that the “majority leaves Auer so riddled with holes that, when all is said and done, courts may find that it does not constrain their independent judgment any more than” the Skidmore doctrine he favors (under which courts follow the agency’s view only to the extent that it is persuasive).

In his Part V (not joined by Alito), Gorsuch has an interesting discussion whether stare decisis should apply at all to “an interpretive methodology” (as opposed, say, to a statutory decision). Among other things, he also pondered how stare decisis allows the majority “so freely to remodel Auer.”

2. The Chief’s position in this case is something of a puzzle. Of the nine justices, he is the only one who does not take a position, one way or the other, on whether Auer deference is consistent with the APA. One obvious possible answer to that puzzle is that the Chief saw it unnecessary to form a position on that question: even if Auer deference did violate the APA, the difference between Kagan’s reformulation of Auer and Gorsuch’s position was too minor to matter. And, he might have thought, why bother formally overruling Auer if you can achieve largely the same result without doing so?

* Not to be confused with Chevron deference, the judicial practice of deferring to a federal agency’s reasonable reading of a statute that it is charged with administering.

Law & the Courts

This Day in Liberal Judicial Activism—June 26

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(Chip Somodevilla/Getty)

1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade. 

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.

2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.”

It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”

Law & the Courts

Democrats Should Practice What They Once Preached

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Senator Dianne Feinstein (D, Calif.) and Senator Patrick Leahy (D, Vt.) chat during Dr. Christine Blasey Ford’s testimony on Capitol Hill in Washington, D.C., September 27, 2018. (Michael Reynolds/Reuters )

When it comes to judicial confirmation obstruction, blame flies over which party did what first, or more often, or with more negative consequences. Our fellow citizens still need to know, and have a reliable way to evaluate, what their government is doing. One way to approach this is to apply criteria or standards of the other party to the confirmation process. Democrats have frequently said how the process should work, at least with a Democrat in the White House. How does it measure up today?

On September 18, 2014, for example, then–Judiciary Committee Chairman Patrick Leahy (D., Vt.) complained that judicial vacancies “remain high.” Vacancies are 97 percent higher today.

On March 27, 2014, Leahy observed that “we are once again spending unnecessary floor time overcoming a procedural obstacle so we can move to an up-or-down vote on a judicial nomination.” That procedural obstacle was a time-consuming separate vote to end debate, a step that typically was accomplished easily by informal agreement between the party leaders.

At that point, 62 months into the Barack Obama administration, the Senate had taken 38 such votes. The Heritage Foundation’s Judicial Appointment Tracker shows that today, 29 months into the Donald Trump administration, the Senate has taken 87 votes to end debate on judicial nominations. Leahy voted against ending debate and to block a final up-or-down votes for almost all of them.

On January 9, 2014, Leahy charged that “Republicans, for the first time ever, refused to allow any currently pending judicial nominees to be held over so that they would be ready for immediate action this year. . . . Senate Republicans are forcing us to duplicate work this year that already completed [last year].” With Leahy’s support, Democrats did exactly that between 2017 and 2018, forcing Trump to renominate dozens of judicial picks and the Senate to start all over again.

On June 13, 2013, Leahy noted that “we are not even keeping up with attrition.” Today, despite a Senate controlled by the president’s party, judicial vacancies are still 11 percent higher than when Trump took office.

On March 13, 2012, Leahy charged that Obama’s nominees to the U.S. District Court “have already received more than five times as many ‘no’ votes in three years as President Bush’s district nominees did in his eight years.” At that point, 18 percent of Obama’s confirmed district court nominees had received at least one negative vote. Today, 55 percent of Trump’s confirmed district court nominees have received negative votes.

On March 4, 2013, Leahy criticized Republicans for “depart[ing] dramatically from well-established Senate practices . . . in their efforts to delay and obstruct [President Obama’s] judicial nominations.” At this point, 84 percent of Obama’s judges were confirmed without opposition, compared to 31 percent since Trump took office.

On February 27, 2012, Leahy claimed that Obama’s nominees “are being treated differently than those of any President, Democratic or Republican, before him.” Leahy’s evidence was that five of the six nominees to the U.S. District Court reported from the Judiciary Committee “by party-line vote” since 1945 had been Obama nominees.

Let’s accept as true Leahy’s claim that only six nominees in 66 years were reported by the Judiciary Committee on a straight party-line vote. This Congress alone, in less than 18 months and with Leahy’s participation, the Judiciary Committee has done that more than two dozen times.

There’s more where these came from, but no matter which way you cut it, Senate Democrats have done an about-face from the way they demanded that Democratic judicial nominee be handled.

Law & the Courts

This Day in Liberal Judicial Activism—June 25

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(Wikimedia Commons)

1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”

2008— By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.

Law & the Courts

Judicial-Nominations Update

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Last week, the Senate voted to confirm four more judicial nominees, bringing the total number confirmed during this Congress to 40. Thanks to the steady stream of confirmations since Senate majority leader Mitch McConnell limited the amount of post-cloture debate time for district court and sub-cabinet level nominees to two hours, the number of vacancies continues to drop from historic highs — as does the number of nominees waiting more than a year for confirmation.

Also last week, Senate Judiciary Committee voted to advance Dan Bress, President Trump’s pending nominee to the Ninth Circuit, to the Senate Floor. The Committee will be holding a nominations hearing on Wednesday with the nominees still to be announced. On Thursday, the Committee will hold an executive business meeting to consider the nominations of several judicial nominees, including Peter Phipps, President Trump’s nominee to the Third Circuit.

Next week the Senate will be on recess for the July 4th holiday.

Here is a full update on the status of President Trump’s federal-judicial nominations:

Current and known future vacancies:  142

Courts of Appeals:  7

District/Specialty Courts*: 135

Pending nominees for current and known future vacancies:  56

Courts of Appeals: 2

District/Specialty Courts*: 54

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Peter Phipps (3rd) 5/13/2019 42 6/5/2019

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Dan Bress (9th) 2/6/2019 138 6/20/2019

 Nominees Awaiting Floor Votes:28

Courts of Appeals: 0

District/Specialty Courts: 28

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 0
  • # of pending nominees originally nominated > 500 days ago: 0
  • # of pending nominees originally nominated > 400 days ago: 10
  • # of pending nominees originally nominated > 300 days ago: 10

Nominees Confirmed by the Senate during the 116th Congress: 40

Supreme Court: 0

Courts of Appeals: 11

District/Specialty Courts: 29

Nominees Confirmed by the Senate since Inauguration Day: 125

Supreme Court: 2

Courts of Appeals: 41

District/Specialty Courts: 82

Law & the Courts

This Day in Liberal Judicial Activism—June 24

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(Pixabay)

1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court! 

Law & the Courts

This Day in Liberal Judicial Activism—June 23

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(Pixabay)

2005—In an act of judicial passivism, a five-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.

It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.

Law & the Courts

The Fragmented Gundy Court Suggests the Nondelegation Doctrine Might Have a Future

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The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

Yesterday a fragmented Supreme Court announced its judgment in Gundy v. United States, which upheld a provision of the Sex Offender Registration and Notification Act (SORNA) that allows the attorney general to decide whether and how sex offenders convicted prior to passage of the Act need to register under the comprehensive national system of registration established by the statute. That delegation of authority to the attorney general was challenged under the nondelegation doctrine, under which Congress, the branch vested by the Constitution with legislative power under the Constitution, may not transfer such power to another branch.

The Court added a gloss to this doctrine in 1928, when it stated that Congress may delegate authority provided that the statute lays down an “intelligible principle” to which the body exercising such authority is required to conform. That remains the law to this day, but since the New Deal, when it struck down delegations in two cases decided in 1935, the Court has upheld every other delegation it has faced. That has contributed to the unprecedented proliferation of a vast administrative state over the last eight and a half decades, prompting many observers to wonder whether the nondelegation doctrine is a virtual dead letter.

Gundy did not yield an opinion by a majority of the Court, but a plurality opinion written by Justice Kagan and joined by Justices Ginsburg, Breyer, and Sotomayor. That opinion did not take issue with precedent or the nondelegation doctrine, but tried to argue around it by putting an interpretive gloss on the statute: SORNA, Kagan maintained, requires the attorney general to register pre-Act offenders as soon as feasible, and the only discretion granted to the attorney general is to address feasibility issues based on technical challenges presented by the prior patchwork of sex offender registration systems.

Justice Gorsuch’s dissent, on the other hand, noted the statutory text, which mentions nothing about feasibility and expressly gives the attorney general “the authority to specify the applicability” of the statute to pre-Act offenders. This amounts to “vast” discretion for a category that consists of more than 500,000 people, and a succession of attorneys general exercised their discretion in a variety of different directions.

The dissent continued with a discussion of the pedigree of the nondelegation doctrine going back to James Madison and John Marshall and why it is necessary to take the separation of powers seriously. Proceeding into the twentieth century, Gorsuch also explained how the Court’s “‘intelligible principle’ remark eventually began to take on a life of its own,” one with “no basis in the original meaning of the Constitution,” which brought us to where we are today. Instead, a correctly rooted “intelligible principle” test must ask:

Does the statute assign to the executive only the responsibility to make factual findings? Does it set forth the facts that the executive must consider and the criteria against which to measure them? And most importantly, did Congress, and not the Executive Branch, make the policy judgments?

Gorsuch’s dissent was joined by Chief Justice Roberts and Justice Thomas. Justice Kavanaugh did not participate in the case, which was argued before his confirmation.

The fifth vote for the Court’s judgment came from Justice Alito, but he wrote his own separate concurrence without joining the plurality opinion. Sounding more like the dissenters, he criticized the Court’s blanket rejection of nondelegation challenges since 1935, which meant it “upheld provisions that authorized agencies to adopt important rules pursuant to extraordinarily capacious standards.” Alito expressed his “willing[ness] to reconsider the approach we have taken for the past 84 years” if a majority of justices were willing to do so, but absent that majority, he found the statute to be in line with precedent.

That leaves four justices on record as willing to breathe new life into the nondelegation doctrine, with the possible fifth vote in Justice Kavanaugh when the issue comes before him.

Law & the Courts

Ninth Circuit Victory for Trump Administration’s Defunding of Planned Parenthood

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Amidst the downpour of Supreme Court rulings, I just wanted to highlight an excellent ruling yesterday from the Ninth Circuit. In California v. Azar, a Ninth Circuit panel granted the motion by the U.S. Department of Health and Human Services for a stay of orders of three separate district courts that preliminarily enjoined HHS from implementing its revised regulations imposing restrictions on funding of pre-pregnancy family planning services. The plaintiffs in the underlying actions included some two dozen states and various Planned Parenthood affiliates.

In its per curiam order, the panel (which consisted of three Republican appointees) explained that the HHS regulations are substantially similar to—indeed, in one respect less restrictive than—the 1988 regulations that the Supreme Court found permissible in its 1991 ruling in Rust v. Sullivan. Further, the panel explained, the district courts were wrong to contend that two provisions of law adopted since Rust impliedly repealed or amended the underlying statutory provision or otherwise disallowed the HHS regulations.

Thus, in addition to allowing the HHS regulations to go into effect, the panel decision promises HHS a victory on the merits in the underlying litigation.

I understand that a similar case is pending in the Fourth Circuit, arising from a preliminary injunction imposed by a district court in Maryland. If the Fourth Circuit doesn’t likewise promptly overturn that injunction, look for HHS to seek and obtain relief from the Supreme Court.

Law & the Courts

This Day in Liberal Judicial Activism—June 21

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The Bill of Rights (Wikimedia Commons )

1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”

Law & the Courts

Huge Win for Religious Liberty Today

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Supporters of the memorial cross in Bladensburg, Md., gather outside the Supreme Court in Washington, D.C., February 27, 2019. (Lawrence Hurley/Reuters)

Today the Supreme Court handed down its decision in American Legion v. American Humanist Association, the long-awaited case regarding the World War I memorial in Bladensburg, MD. The Court’s decision to stop militant atheists from tearing down the historic ‘Peace Cross’ memorial is a major win for religious liberty. Unfortunately, while Justice Alito’s majority opinion harshly criticized the Lemon test, he apparently did not have the votes to overrule it completely. Even as written, Justice Kagan refused to join the sections of the opinion most critical of Lemon.

Several conservative justices wrote separately, further pointing out Lemon’s shortcomings. Justice Kavanaugh surveyed the types of Establishment Clause cases and showed that Lemon didn’t explain the Court’s jurisprudence in any of them, calling it “bad law.” Justice Gorsuch savaged the practice of allowing Establishment Clause challenges to proceed on the basis of mere offense to an observer while other First Amendment challengers have much harder standing requirements.  And Justice Thomas suggested taking a step even further back and reconsidering whether incorporating the First Amendment religion clauses against the states could be squared with the original understanding of the Constitution and its amendments. He also encouraged the Court to explicitly overrule Lemon, writing, “It is our job to say what the law is, and because the Lemon test is not good law, we ought to say so.”

What is even more concerning than leaving bad precedents on the books is that Justices Ginsburg and Sotomayor would have required the cross to be torn down, arguing that every cross displayed on public property presumptively amounts to an unconstitutional endorsement of religion. As liberal groups are at work compiling secret lists of potential Supreme Court nominees in hopes that a Democrat will win in 2020, Americans should ask whether those secret judges would be equally extreme in coopting the Constitution for an aggressively secularist agenda.

Law & the Courts

Ruling in Bladensburg Cross Case

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By a vote of 7 to 2, the Supreme Court ruled today in American Legion v. American Humanist Ass’n that the state of Maryland does not violate the Establishment Clause by having the Bladensburg Peace Cross on public land and by expending public funds to maintain it. The 32-foot-tall monument, in the form of a Latin cross, was erected in 1925 as a tribute to 49 area soldiers who lost their lives in World War I.

Here is a quick summary, with some commentary:

1. Justice Alito’s lead opinion garnered a five-justice majority for most of its parts. That majority included Chief Justice Roberts, Justice Breyer, Justice Kagan, and Justice Kavanaugh. (As discussed in point 3, Kagan peeled off on two subparts.)

Two other justices, Justice Gorsuch and Justice Thomas, concurred in the judgment. In his opinion (joined by Thomas), Gorsuch rejects the “offended observer” theory of standing and therefore would order the case dismissed for lack of standing.

In dissent, Justice Ginsburg, joined by Justice Sotomayor, would rule that the maintenance of the Peace Cross violates the Establishment Clause.

2. Alito’s majority opinion offers four considerations why there should be a “strong presumption of constitutionality” in favor of “retaining established, religiously expressive monuments, symbols and practices.” (Slip op. at 16-21.)

First, it may be “especially difficult” to identify the “original purpose or purposes” of monuments, symbols, or practices that “were first established long ago.”

Second, “as time goes by, the purposes associated with an established monument, symbol, or practice often multiply”: a community may preserve such monuments, symbols, and practices “for the sake of their historical significance or their place in a common cultural heritage.”

Third, the message they convey might also change over time. Consider, for example, the messages now conveyed by the Statue of Liberty, Notre Dame Cathedral, or the many cities that bear religious names.

Fourth, “when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral” but might instead “strike many as aggressively hostile to religion.”

Alito then explains how these four considerations apply to the “role of the cross in World War I memorials.” (Slip op. at 21-24.) Of particular note is his account of how the cross became a “symbol closely linked to the war”—in part because of the “solemn image of endless rows of white crosses” at “the fallen soldiers’ final resting places abroad” and the enormous popularity of the poem “In Flanders Fields.” (See also slip op. at 4-6.) He then applies the same considerations directly to the Bladensburg Cross. (Slip op. at 28-31.)

(These are all from parts of the opinion that garnered a majority.)

3. The seven justices who rejected the Establishment Clause challenge differed somewhat in their assessments of the so-called Lemon test (from the Court’s 1971 ruling in Lemon v. Kurtzman).

In Part II-A of his opinion, Alito documents the shortcomings of the Lemon test and says that the test “presents particularly daunting problems in cases … that involve the use, for ceremonial, celebratory, or commemorative purposes, of words or symbols with religious associations.” But Kagan declined to join this subpart (as well as, “out of perhaps an excess of caution,” the discussion in Part II-D of the guidance that history provides). In her own brief, she states that she agrees that “rigid application of the Lemon test does not solve every Establishment Clause problem” but that she finds its “focus on purposes and effects” in cases like this one to be “crucial.” (I might be wrong, but I don’t think that her use of crucial is playing on that word’s original meaning of cross-shaped.)

Thomas and Gorsuch would reject the Lemon test altogether. So would Kavanaugh, if I’m reading his concurring opinion correctly: he states with approval that “this Court no longer applies” the Lemon test, and he explains how that test “is not good law” in any of the five broad categories of Establishment Clause cases that Alito identifies. So these three justices would join the four in the Alito plurality in supporting Alito’s conclusion that the Lemon test does not apply to the ceremonial, celebratory, or commemorative use of words or symbols with religious associations.

More broadly, while the Court didn’t declare the Lemon ghoul to be dead, there is little if any reason for any lower-court judge to assume that it continues to operate in any realm. (Ginsburg and Sotomayor did not offer a word of support for the Lemon test.)

4. There is an interesting back and forth among some of the justices over how new monuments would fare under the Establishment Clause.

In a concurring opinion, Breyer states that a “newer memorial, erected under different circumstances, would not necessarily be permissible under Alito’s “history and tradition” test.

Kavanaugh, by contrast, concludes that the “practice of displaying religious memorials, particularly religious memorials, on public land, is not coercive and is rooted in history and tradition.” That would seem to create a presumption in favor of the constitutionality of a new memorial. And Gorsuch, joined by Thomas, affirmatively states that “what matters when it comes to assessing a monument, symbol, or practice isn’t its age but its compliance with ageless principles.”

Law & the Courts

R.I.P., Charles Reich, Justice Alito’s Con Law Prof

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The Washington Post’s obituary of onetime Yale law professor, and 1960s counterculture guru, Charles Reich reminded me that Reich was assigned to teach Samuel Alito constitutional law at Yale. Not that he actually did. It would seem that Reich was eager to put the con in con law.

Here’s Alito’s memorable account (from an interview with Bill Kristol):

My Constitutional Law course was taught by someone you may, whose name you may remember, most people today may not remember, Charles Reich….

By the time, he taught me he was experiencing, I think, some personal turmoil and it was a most bizarre course…. I had him for Constitutional Law, and I kept notes of any Supreme Court or any other case that was even mentioned during the course of the term, and at the end of the term, there was exactly one that had been mentioned….

[H]e began by saying that his thesis was there were no livable lives to be lived in the law. That was his phrase. So he went around the room and he’d say, “Why did you come to law school?” And in those days nobody would say, “I came to law school because I want to become a partner at a Wall Street firm and make a million dollars,” so everyone would say, “I came to law school because I think it’s a way of achieving social reform or helping society” or something like that. And then he would engage in a long debate with each student to try to prove that this was not a good reason for going to law school. Basically, he was telling us you really shouldn’t be here. And this went on for weeks. And then he went on to other subjects. That was my ConLaw course.

The professor who taught the big section that term on Constitutional Law was somebody who wasn’t that well-known at the time, Robert Bork. And I went to – as soon as I saw that I had been assigned to Charlie Reich’s class – I had read The Greening of America, and I really was not interested in being in this class. I went to the Assistant Dean and said, “Can’t you possibly switch me so I can be in the regular Constitutional Law class?” Never in the history of Yale Law School has anyone ever switched a class….

I was consigned to this experience. It was bizarre, and he told us that he could never tell when he would have to go to San Francisco, but he always had a ticket to San Francisco in his desk and at some point in his term, it was possible that there would be a note on the bulletin board that he had gone to San Francisco and the course would then be over. And I came back to school after Thanksgiving and I looked at the bulletin board and there was a note that said, “I’ve gone to San Francisco, that’s the end of classes.” And that was the end of the classes.

Law & the Courts

This Day in Liberal Judicial Activism—June 20

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(Photo Illustration: NRO)

2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”

Law & the Courts

En Banc Eleventh Circuit to Address Challenge to State Minimum-Wage Law

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In an amazing opinion last July, an Eleventh Circuit panel ruled (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act had “stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.” I outlined my criticisms of that ruling in this post and won’t repeat them here.

I’d instead like to pass along some encouraging news that I had missed. Back in January, the Eleventh Circuit granted rehearing en banc of the case and vacated the panel’s ruling. The court has instructed counsel “to focus their briefs on the following issues”:

(1) Whether the plaintiffs have standing under Article III of the Constitution.

(2) Whether the Attorney of Alabama is a proper defendant under Ex Parte Young, 209 U.S. 123 (1908).

(3) Whether the complaint states a claim of racial discrimination, in violation of the Equal Protection Clause, that is plausible under the pleading standard established in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Iqbal v. Ashcroft, 556 U.S. 662 (2009).

Oral argument will take place next Tuesday, June 25.

Law & the Courts

This Day in Liberal Judicial Activism—June 19

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(Shutterstock)

2004—A mere audience member at an American Constitution Society panel discussion on the forthcoming presidential election, Second Circuit judge Guido Calabresi can’t restrain himself. Calabresi begins his comments from the floor by acknowledging that he is “not allowed to talk politics,” but he quickly descends into a thinly disguised diatribe: “What the Supreme Court did in Bush v. Gore” was “exactly what happened when Mussolini was put in by the King of Italy” and “what happened when Hindenburg put Hitler in.” Of course, Calabresi is “not suggesting for a moment that Bush is Hitler.” But, “like Mussolini, he has exercised extraordinary power.” And “when that has happened it is important to put that person out [of office].”

A week later, Calabresi will apologize that his comments could reasonably have been understood to be partisan. In April 2005, the Judicial Council of the Second Circuit will confirm that Calabresi violated the canon of judicial ethics that provides that a judge “should not … publicly endorse or oppose a candidate for public office.”

[This was initially mistakenly included in the This Day post for June 18.]

Law & the Courts

Justice Thomas Lays Out an Originalist’s Perspective on Stare Decisis

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Today the Supreme Court announced its decision in Gamble v. United States, in which it declined to overturn its longstanding view that the Double Jeopardy Clause does not prevent an individual from being prosecuted by both the state and the federal government — under each jurisdiction’s respective criminal laws — regardless of whether the state and federal offenses stem from the same conduct. In its decision, the Court found “the historical evidence assembled by” the defendant to be “feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent.”

Justice Clarence Thomas joined the Court’s decision and wrote a concurrence so he could separately address “the proper role of the doctrine of stare decisis.” He spelled out as explicitly as he has in his nearly 28 years of service why the current Court is wrong to “view[] stare decisis as a ‘principle of policy’ that balances several factors to decide whether the scales tip in favor of overruling precedent,” requiring (in the words of Planned Parenthood v. Casey (1992)) “a ‘special reason over and above the belief that a prior case was wrongly decided’ to overrule a precedent.” That approach “might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law. But our federal system is different.”

Here the Court’s role is set forth in Article III, § 1 of the Constitution, as the exercise of “judicial Power.” Citing two decisions by Chief Justice John Marshall, the Federalist Papers, and James Madison’s correspondence, Thomas explained,

That “Power” is—as Chief Justice Marshall put it—the power “to say what the law is” in the context of a particular “case” or “controversy” before the court. . . . It refers to the duty to exercise “judicial discretion” as distinct from “arbitrary discretion.” . . .

That means two things, the first prohibitory and the second obligatory. First, the Judiciary lacks “force” (the power to execute the law) and “will” (the power to legislate). . . . The Judiciary thus may not “substitute [its] own pleasure to the constitutional intentions of the legislature.” . . .

Second, “judicial discretion” requires the “liquidat[ion]” or “ascertain[ment]” of the meaning of the law. . . . [It] is not the power to “alter” the law; it is the duty to correctly “expound” it.

Thomas recognized the pedigree of stare decisis in English common law but added that judges were long expected to correct erroneous precedent. Moreover, federal courts look to different sources of law than common-law courts: They “need not—and generally cannot—articulate the law in the first instance,” but are primarily bound by “three bodies of federal positive law—the Constitution; federal statutes, rules, and regulations; and treaties. That removes most (if not all) of the force that stare decisis held in the English common-law system, where judicial precedents were among the only documents identifying the governing ‘customs’ or ‘rules and maxims.’”

Since “the primary role of federal courts today is to interpret legal texts with ascertainable meanings,” Thomas summarized the weight of judicial precedent as follows:

[I]f the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent. Federal courts may (but need not) adhere to an incorrect decision as precedent, but only when traditional tools of legal interpretation show that the earlier decision adopted a textually permissible interpretation of the law. A demonstrably incorrect judicial decision, by contrast, is tantamount to making law, and adhering to it both disregards the supremacy of the Constitution and perpetuates a usurpation of the legislative power.

Thus, “[w]hen faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” After all, judicial officers take an oath to support the Constitution, and “the Constitution . . . requires us to privilege its text over our own precedents when the two are in conflict.”

Still, precedent “may remain relevant when it is not demonstrably erroneous,” as when the indeterminacy of written law may lead reasonable jurists to arrive at different conclusions regarding a legal text’s original meaning. This case provided such an example. Thomas praised the “admirable job” done by Justice Neil Gorsuch, who dissented with an analysis of the double jeopardy question that explored among other things postratification legal treatises. Ultimately, however, he found those sources inconclusive about the understanding of the Fifth Amendment when it was ratified, leaving him unpersuaded “that our precedent is incorrect as an original matter, much less demonstrably erroneous.”

Thomas concluded his commentary on stare decisis by noting how his view would provide more certainty and stability to the law than the current Court’s “malleable balancing test.” For good measure, he added the “true irony . . . that proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible.”

With significance well beyond the immediate issue in Gamble, Thomas’s concurrence is one of the most thoughtful expositions on judicial precedent to come from the bench in modern times. It should be required reading, especially for originalists exploring the doctrine of stare decisis.

Law & the Courts

This Day in Liberal Judicial Activism—June 18

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

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

1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

Law & the Courts

Justice Thomas and Justice Ginsburg on Overruling Precedent

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In its ruling today in Gamble v. United States, the Supreme Court, by a vote of 7 to 2, affirmed 170 years of precedent applying the dual-sovereignty doctrine to the Fifth Amendment’s Double Jeopardy Clause. As Justice Alito’s majority opinion sums up this doctrine, “a crime under one sovereign’s laws is not ‘the same offence’ [under the text of the Double Jeopardy Clause] as a crime under the laws of another sovereign.” In other words, the Double Jeopardy Clause does not bar a state from “prosecut[ing] a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute,” and vice versa.

I’m going to pass over the substantive debate between Justice Alito, on the one hand, and Justice Ginsburg and Justice Gorsuch, on the other. I’d instead first like to highlight Justice Thomas’s 17-page concurring opinion in which he addresses how the doctrine of stare decisis ought to be applied.

Thomas argues that the Court’s manner of viewing stare decisis as a judicial policy that balances several factors “might have made sense in a common-law legal system in which courts systematically developed the law through judicial decisions apart from written law.” But “[w]e operate in a system of written law” in which “the systematic development of the law is accomplished democratically.” In such a system, “Our judicial task is modest: We interpret and apply written law to the facts of particular cases.”

It follows, Thomas argues, that “if the Court encounters a decision that is demonstrably erroneousi.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other facts support overruling the precedent.” (Emphasis added.) By contrast, federal courts “may (but need not) adhere to an incorrect decision” that is a “textually permissible interpretation of the law.” (Emphasis added.) The same principles, he says, should apply to both constitutional questions and statutory questions.

Thomas’s opinion (which my brief summary doesn’t do justice to—read the whole thing) should provoke a lot of discussion. Much criticism is likely to come from folks who think that his approach fails to give enough weight to stare decisis (or at least to the wrong precedents they hope to salvage). But I suspect that there will also be critics who lament that he would allow an incorrect decision to stand merely because it offers a “textually permissible” interpretation.

Meanwhile, Justice Ginsburg, in calling for the dual-sovereignty doctrine to be overruled, again departs from the alarmist tenor of the attention-grabbing dissent she joined last month. In that dissent, she and her fellow liberals warned that “Each time the Court overrules a case, the Court produces increased uncertainty” that could threaten the “necessary stability” of the law, and that the Court should therefore overrule precedent “only when the circumstances demand it.” Today, while acknowledging that the Court has “repeatedly embraced” the dual-sovereignty doctrine, she recites the usual proposition that stare decisis “is not an inexorable command” and offers her reasons why 170 years of precedent should be overturned.

Law & the Courts

Judicial-Nominations Update

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The Senate held nine — yes nine — confirmation votes for judicial nominees last week, including votes for seven district-court nominees and two Court of Federal Claims nominees.  The confirmations are expected to continue this week, as Senate Majority Leader Mitch McConnell has filed for cloture to end debate on four additional district-court nominees. The Senate has confirmed 36 judicial nominees since January, including 25 district-court nominees and eleven circuit court nominees.

Also last week, the White House announced its intent to nominate three more federal judges, including Halil “Sul” Ozerden to the U.S. Court of Appeals for the Fifth Circuit.

Here is a full update on the status of President Trump’s federal judicial nominations:

Current and known future vacancies:  145

Courts of Appeals:  6

District/Specialty Courts*: 139

Pending nominees for current and known future vacancies:  60

Courts of Appeals: 2

District/Specialty Courts*:  58

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

 Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Dan Bress (9th) 2/6/2019 131 5/22/2019
Peter Phipps (3rd) 5/13/2019 35 6/5/2019

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

 Nominees Awaiting Floor Votes: 28

Courts of Appeals: 0

District/Specialty Courts: 28

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 2
  • # of pending nominees originally nominated > 500 days ago: 2
  • # of pending nominees originally nominated > 400 days ago: 8
  • # of pending nominees originally nominated > 300 days ago: 27

Nominees Confirmed by the Senate during the 116th Congress: 36

Supreme Court: 0

Courts of Appeals: 11

District/Specialty Courts: 25

Nominees Confirmed by the Senate since Inauguration Day: 121

Supreme Court: 2

Courts of Appeals: 41

District/Specialty Courts: 78

Law & the Courts

This Day in Liberal Judicial Activism—June 17

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Judge Rosemary Barkett.

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

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

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

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

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

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

Law & the Courts

Machinations and Manipulations in the Census Case

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Naturalization ceremony in Los Angeles, Calif., in 2013. (Mario Anzuoni/Reuters)

Before the Supreme Court wraps up its term this month, it is expected to issue a ruling in Department of Commerce v. New York (otherwise known as the Census case).  The case concerns Commerce Department Secretary Wilbur Ross’s decision to reinstitute a question about citizenship in the 2020 census.  Census authorities have been inquiring about citizenship status in one form or another for nearly all of the last 200 years, whether as a component of the decennial census or since 2005 as part of an annual survey that reaches a fraction of households.  Nonetheless, this latest decision was met by a court challenge.  The plaintiffs in the case (a collection of states, cities, counties, and civil rights groups) sued the Trump administration in federal district court, and Judge Jesse Furman, an Obama appointee, ruled in January that the citizenship question could not be used in the 2020 decennial census.  The Supreme Court took the unusual step of agreeing to hear the case on direct appeal from the district court.

Late last month (after the Supreme Court heard oral arguments), the plaintiffs wrote both the Supreme Court and the district court to claim they have new evidence—specifically, a file from the hard drive of a deceased Republican strategist named Thomas Hofeller that was turned over to the plaintiffs by Hofeller’s estranged daughter.

The plaintiffs claim that, contrary to the sworn testimony of government officials, Acting Assistant Attorney General John Gore relied on an unpublished 2015 study conducted by Hofeller in drafting the Department of Justice’s formal request to the Department of Commerce to reinstitute the citizenship question.  The plaintiffs allege that Hofeller “concluded in a 2015 study that adding a citizenship question to the 2020 census ‘would clearly be a disadvantage to the Democrats’ and ‘advantageous to Republicans and non-Hispanic Whites’ in redistricting,” and that Hofeller “helped ghostwrite a draft DOJ letter to Commerce requesting a citizenship question and providing the Voting Rights Act enforcement rationale for doing so.”

The “Voting Rights Act enforcement rationale” refers to the Commerce Department’s stated justification for adding the citizenship question to the census, which is that the Department of Justice requested citizenship data from the Commerce Department to support the DOJ’s enforcement of the Voting Rights Act—not because of any impermissible racial animus.  Secretary Ross issued a policy letter explaining his rationale and also testified before Congress about it.

Now plaintiffs say they have the equivalent of a smoking gun.  Even though the case is currently pending before the Supreme Court, the plaintiffs have sought sanctions against the DOJ in the district court, arguing that the government “concealed” the study, which the plaintiffs claim “strongly underscores the pretextual basis for the [government’s] decision to add a citizenship question to the 2020 Decennial Census.” Last week Judge Furman postponed ruling on the plaintiffs’ request for sanctions until the Supreme Court issues its decision and set an August deadline for briefs on the sanctions question.

And then on Thursday, the plaintiffs filed a motion with the Supreme Court requesting that the case be remanded to the district court for “inquiry and fact-finding into whether Dr. Hofeller’s partisan and racially discriminatory motives for adding a citizenship question were shared by, or should otherwise be imputed to, relevant Commerce officials, including the Secretary.”

The government has vigorously refuted the plaintiffs’ claim that Acting Assistant Attorney General Gore relied on the Hofeller study.  In its response to the plaintiffs’ motion to the district court, the government argued that the plaintiffs “provide[d] no evidence that Gore ever read, received, or was even aware of the existence of that unpublished study” and that “neither Hofeller nor his unpublished study played any role whatsoever in the drafting of the [] letter” that was the DOJ’s formal request to reinstate the citizenship question on the census.  Rather, the government asserts that the plaintiffs’ effort to reopen the case is nothing more than an “eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”  The government also correctly notes that the Hofeller study is irrelevant to the Supreme Court’s decision in this case, “because the critical issue in this APA case is whether the Secretary provided an objectively rational basis for his decision to reinstate the citizenship question,” and nothing in Hofeller’s personal files can resolve that legal issue (emphasis added). The Secretary provided a rational explanation for the reinstitution of the citizenship question, and the APA provides no justification for looking outside the closed record.

More fundamentally, the plaintiffs’ sideshow is irrelevant to the key question in the case, which is whether the plaintiffs have standing to sue in the first place.  The district court found that the plaintiffs had “associational standing” because some of their members receive funds from federal programs that are distributed based on census data.  But the government argues that the plaintiffs’ “alleged injuries will materialize only if unidentified third parties react to the citizenship question by illegally refusing to fully answer and return the census questionnaire in violation of federal law,” so they wouldn’t have standing.  At oral argument, the justices seemed to agree.  This is the nub: if the plaintiffs do not have standing, the case must be dismissed, making who devised the citizenship question irrelevant.

The plaintiffs’ request for a remand for fact-finding about supposed new evidence is nothing more than a desperate Hail Mary effort to prevent the Court from ruling on the case before the end of the term. With the deadline for printing the Census form fast approaching at the end of the month, this is an apt example of the old phrase, “Justice delayed is justice denied.”  The longer that the plaintiffs can keep litigating, the better, from their perspective.  And the plaintiffs’ specious allegations of misconduct by government officials is just window dressing for their bald-faced delay tactics.

Not surprisingly, the editorial board of the New York Times has joined the plaintiffs in their campaign for a delayed decision with a headline blasting, “Looks Like the Trump Administration Lied About the Census.”  As have myriad other left-wing columnists who are wringing their hands over the Supreme Court’s “legitimacy” were it to go ahead and rule in in the case.

There is no reason for the Supreme Court to remand this case. The facts and arguments that the Court needs to rule are squarely before it now, and it should do so this month.

Law & the Courts

This Day in Liberal Judicial Activism—June 15

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(Shutterstock)

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 14

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

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

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

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

Law & the Courts

The Left’s Secret Judges List

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Law School Graduates Supreme Court
(Erin Schaff/Reuters)

Last weekend, the New York Times ran a story about “Building the Bench,” an initiative led by liberal dark-money groups preparing a secret list of judges in case a Democrat wins in 2020, and in turn the opportunity to pack the federal courts with progressive judges in a post-Trump Era.

Their goal is to copy the wild success of “The List,” President Trump’s novel initiative in 2016 to publicize the specific names of individuals he would nominate to Justice Scalia’s Supreme Court seat following the justice’s death.

The individuals on then-candidate Trump’s list were well-respected federal and state judges.  The list demonstrated to voters that Trump was a presidential candidate who cared deeply about the courts and rule of law, and would in turn nominate justices and judges who were committed to the rule of law. When he supplemented the initial list in September 2016, Trump vowed to “appoint justices who, like Justice Scalia, will protect our liberty with the highest regard for the Constitution.”

The List proved instrumental to President Trump’s eventual victory in 2016.  Exit polls showed that for one in five voters in the 2016 election, the Supreme Court was the top issue. Of that group, 57 percent voted for President Trump. And President Trump made good on his campaign promise, first nominating Justice Neil Gorsuch and later Justice Brett Kavanaugh to seats on the Supreme Court.

But there’s one big difference between President Trump’s List and this new liberal initiative: Trump’s list was public, but this new liberal list is being kept secret.

One of its principal organizers and sponsors is reportedly Alliance for Justice, a progressive group that has fought vigorously against President Trump’s judicial nominees at every turn, often smearing and misrepresenting their records. (Look back at my post about now-D.C. Circuit judge Neomi Rao if you need to refresh your recollection about the AFJ and their antics.)

According to the New York Times, “a number of other liberal advocacy groups and labor unions” are partnering with AFJ to put up Building the Bench. But no one knows who exactly these unnamed “liberal advocacy groups” are, what they want from our courts, or who is funding them. The AFJ has posted on its website a job posting for a counsel to help run Building the Bench. The posting notes that one of the necessary qualifications is “[e]xperience in civil rights, labor, consumer and/or constitutional law,” hinting that the list is probably dominated by lawyers who hold extreme views on everything from racial preferences and unions to the Second Amendment.  Do any of these “liberal advocacy groups” have interests before the Supreme Court? Seems likely.

Recently we have heard quite a bit about the idea of expanding the Supreme Court, with a number of Democratic presidential candidates warmly embracing the idea. Kamala Harris has said that she is “open to increasing the numbers on the Supreme Court,” as have Senators Elizabeth Warren and Kirsten Gillibrand. Pete Buttigieg has floated a proposal to expand the number of justices on the Court from nine to 15, with five Republican-appointed justices, five-Democrat-appointed justices, with those ten selecting the other five (a plan that is very clearly unconstitutional).  Beto O’Rourke has suggested a similar plan to Buttigieg’s. Other lesser-known candidates, such as Governor Jay Inslee, Andrew Yang, and Wayne Messam have also said they would be open to adding justices on the Court.

When a Court-packing plan was last proposed in 1937 by President Franklin D. Roosevelt, it was correctly viewed as an illegitimate attempt by Roosevelt to do an end-run around the Supreme Court and its cool reception to FDR’s New Deal legislation. But history has a way of repeating itself, and now 82 years later, the majority of 2020 Democrat contenders are chiming in to support the very radical idea of packing the court with political agenda-driven justices.  And now there is a new dark money group to aid in the process of identifying and vetting those potential justices.

So the question remains: Who is on the list?  Why are the Democratic candidates, and these groups, so afraid to say exactly who they would want to nominate to the Supreme Court?  What are they hiding?

Law & the Courts

This Day in Liberal Judicial Activism—June 13

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(Shutterstock)

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 12

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 11

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 10

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Former Chief Justice Earl Warren

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

Law & the Courts

This Day in Liberal Judicial Activism—June 9

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(Shutterstock)

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

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

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

And then this killer understatement:

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

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

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

Politics & Policy

A Party Switch that Triggered a Confirmation Landslide

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Senator James Jeffords of Vermont announces that he is leaving the Republican party to become an independant, May 24, 2001. (Jim Bourg/Reuters)

In addition to the anniversary of D-Day, June 6 also marks the date on which Senator Jim Jeffords of Vermont switched parties to hand Senate control to the Democrats.

The year was 2001, and profound changes were already underway for the judicial-appointment process. Only a few weeks after President George W. Bush took office, Senate Democratic Leader Tom Daschle (S.D.) vowed to use “whatever means necessary” to fight his judicial nominations. In early May, Senate Democrats huddled with liberal law professors and strategists at a Florida retreat where, as the New York Times reported, “a principal topic was forging a unified party strategy to combat the White House on judicial nominees.”

And so a new chapter in confirmation obstruction began. The Jeffords switch made the early going a pretty easy lift. All that new Judiciary Committee Chairman Patrick Leahy (D-Vt.) had to do was . . . nothing. No hearing, no confirmation.

Just a month earlier, on May 9, Bush nominated eleven men and women to the U.S. Court of Appeals in circuits across the country. Priscilla Owen, nominated to the Fifth Circuit, received a unanimous well qualified rating from the American Bar Association. HEARING DENIED. John Roberts, nominated to the D.C. Circuit, also received a unanimous well qualified ABA rating. HEARING DENIED. When he was confirmed two years later, after Republicans regained Senate control, not a single senator voted against him.

Even a nationally respected constitutional scholar like Michael McConnell — yes, he also received a unanimous well qualified rating — was kept in limbo for 16 months before Leahy allowed a hearing. Like Roberts, McConnell was confirmed without any opposition.

Democrats also began slowing the confirmation process by forcing the Senate to take time-consuming roll call votes which require the presence of all senators. In Bush’s first term, the Senate took 131 roll call votes on judicial nominations, more than in the previous 212 years combined. The roll calls accomplished nothing; 89 percent of them were unanimous — that’s right, no opposition at all.

When Democrats returned to the minority in the 108th Congress, they began implementing the strategy developed at their May 2001 retreat. For the first time in history, the filibuster was used to defeat judicial nominees who would have been confirmed if allowed a final vote.

Today, under a new Republican president, Democrats are continuing their “whatever means necessary” strategy. At this point during the Barack Obama administration, only 14 percent of his judicial nominees had received even a single vote against confirmation; that figure has jumped to 75 percent for Trump nominees.

The average Senate Republican had voted against eight percent of Obama’s judicial nominees at this point, while the average Senate Democrat has voted against 43 percent of Trump’s judicial nominees.

Jeffords’s switch was more than one senator changing parties. It also triggered a radical change in the norms of the confirmation process.

Law & the Courts

This Day in Liberal Judicial Activism—June 7

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Supreme Court Justice William Douglas

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 5

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Sirhan Sirhan at a parole hearing at Corcoran State Prison in California in 1997. (Pool/via Reuters)

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

Law & the Courts

Judicial-Nominations Update

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The Senate returned from recess yesterday and will return to the task of continuing to confirm judges. The Senate is expected to hold confirmation votes for three judicial nominees this week, including one district nominee and two nominees for the U.S. Court of Federal Claims (one of whom was nominated over 600 days ago).

Senate Judiciary Committee chairman Lindsey Graham continues to process nominees steadily. Tomorrow, the Committee will hold a hearing on the nomination of Peter Phipps, President Trump’s nominee to the U.S. Court of Appeals for the Third Circuit. Phipps is currently a district judge in the Western District of Pennsylvania and was confirmed last October by a voice vote.

Here is a full update on the status of President Trump’s federal judicial nominations:

Current and known future vacancies:  153

Courts of Appeals:  6

District/Specialty Courts*: 147

Pending nominees for current and known future vacancies:  67

Courts of Appeals: 2

District/Specialty Courts*:  65

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
Peter Phipps (3rd) 5/13/2019 22 No 6/5/2019

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes  

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Dan Bress (9th) 2/6/2019 118 5/22/2019

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

 Nominees Awaiting Floor Votes:32

Courts of Appeals: 0

District/Specialty Courts: 32

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 3
  • # of pending nominees originally nominated > 500 days ago: 3
  • # of pending nominees originally nominated > 400 days ago: 9
  • # of pending nominees originally nominated > 300 days ago: 22

Nominees Confirmed by the Senate during the 116th Congress: 27

Supreme Court: 0

Courts of Appeals: 11

District/Specialty Courts: 16

Nominees Confirmed by the Senate since Inauguration Day: 112

Supreme Court: 2

Courts of Appeals: 41

District/Specialty Courts: 69

Law & the Courts

A Democrat Voting for a Republican Nominee Shouldn’t be Big News

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A recent headline read: “Kyrsten Sinema Votes Yes on Two More Trump-Appointed Judges.” You know the confirmation process is a partisan mess when a senator voting for a nominee of the other party is news worth a headline.

These two judges were appointed to the U.S. District Court. Between 1789 and 2016 — from President George Washington to President Barack Obama — the Senate confirmed nearly 3,000 judges to this court and only 4 percent received even a single vote against confirmation. For more than two centuries, no matter which party was in the White House or controlled the Senate, every senator supported nearly every district-court nominee.

By comparison, 49 percent of President Donald Trump’s nominees to the U.S. District Court have received votes against confirmation.

The U.S. District Court judges appointed by Presidents John F. Kennedy to Obama receive an average of less than one negative confirmation vote, compared to 15 for Trump’s district-court nominees. And opposition to Trump’s judicial nominees has been increasing since he took office. His district-court nominees received an average of eight negative votes during his first two years, but that has jumped to an average of 38 negative votes this year.

The point here is that a Democrat like Sinema voting for a Republican judicial nominee, especially to the U.S. District Court, was the almost universal norm until Trump took office barely two years ago. Even then, however, Sinema has voted against six district-court nominees in the five months since she took office. It took the three longest-serving Democrats in Senate history — Robert Byrd (W.Va.), Daniel Inouye (Hawaii), and Edward Kennedy (Mass.) — a total of 148 years in the Senate to do that.

Senate Democrats today are departing radically from how the Senate has handled judicial nominees since America’s founding. They are using Trump’s nominees as proxies for Trump himself, and have turned the confirmation process into simply another front in their war against the president.

Law & the Courts

This Day in Liberal Judicial Activism—June 3

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

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

Law & the Courts

This Day in Liberal Judicial Activism—June 1

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(Shutterstock)

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

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton will appoint Daughtrey to the Sixth Circuit.)

Law & the Courts

‘American Law Institute: Unbiased Analyzer or Agenda Driver’

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That’s the title of a Federalist Society panel that I will be taking part in at the National Press Club next Wednesday, June 5, at noon. My fellow panelists are John Fund, Victor E. Schwartz, and Seth P. Waxman (who, among his many distinctions, is a member of the American Law Institute’s governing Council). Judge Susan Braden, now retired from the Court of Federal Claims, will moderate. Register here.

My recent posts criticizing the thinly disguised abortion advocacy in the ALI’s Restatement of the Law on Children and the Law are here and here.

Law & the Courts

Historians Misread Justice Thomas’s Box Concurrence?

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This Washington Post article presents seven historians of the eugenics movement who criticize Justice Thomas’s account, in his concurring opinion in Box v. Planned Parenthood, of the historical link between abortion and eugenics. But it seems to me that they are mistaking Thomas’s account of that link.

According to the article, the historians say that “leading eugenicists and organizations of the day were largely opposed to abortion and birth control.” (My emphasis.) That proposition is entirely compatible with Thomas’s statement that “some eugenicists believed that abortion should be legal for the very purpose of promoting eugenics.” (My underlining; Thomas’s italics.) Thomas supports his statement with citations. (I quote the passage in full here.) Do any of Thomas’s critics believe that his citations don’t support his statement?

More broadly, Thomas’s argument that “[f]rom the beginning, birth control and abortion were promoted as means of effectuating eugenics” is much more a statement about the role of eugenic thinking among early advocates of abortion and birth-control than it is a statement about the role of abortion and birth control in the eugenics movement. The article doesn’t indicate that the historians who criticize him are paying attention to that distinction.

The article further states that “many of the historians were quick to point out that abortion—a personal choice by an individual—differed significantly from the state-mandated programs foisted involuntarily on others by eugenicists.” But Thomas doesn’t contend otherwise. He argues, rather, that “abortion has proved to be a disturbingly effective tool for implementing the discriminatory preferences that undergird eugenics.” Further, one can recognize that government-enforced eugenics present a special evil and be concerned at the same time about the aggregate eugenic consequences of individual choices. (I discuss the latter more fully in point 2 of this post.)

Law & the Courts

This Day in Liberal Judicial Activism—May 31

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

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

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

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

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