In a noteworthy opinion on New Year’s Eve in Doe # 1 v. Trump, a divided panel of the Ninth Circuit ruled that President Trump had the statutory authority to issue a proclamation restricting entry of immigrant visa applicants on the ground that they would burden the American health care system. The panel therefore reversed the district court’s preliminary injunction that had blocked the federal government from implementing the proclamation. (Under the proclamation, the restrictions were to take effect on November 3, 2019. The district judge first issued a temporary restraining order against the proclamation on November 2, 2019, and later that month issued a worldwide injunction.)
Judge Daniel Collins, joined by Judge Jay Bybee, wrote the majority opinion. (Disclosure: I regard both judges as friends of mine.) Judge Wallace Tashima dissented.
The majority opinion straightforwardly applies the framework of the Supreme Court’s 2018 opinion in Trump v. Hawaii to conclude that the proclamation was “well within” the president’s statutory authority. (Pp. 20-26.) It also disposes of various arguments that the proclamation conflicts with other provisions of law. (Pp. 27-35.)
In a rich and interesting essay in the new issue of National Affairs, Jeremy Rozansky disputes “modern legal scholars,” such as David Strauss and Cass Sunstein, who “routinely look to [Edmund] Burke as a kind of theorist of precedent—a conservative who prefers stare decisis to original meaning.” According to Rozansky, that “conventional view”—also recently embraced by Chief Justice Roberts—confuses Burke’s view of statesmanship with his view of judging.
By Rozansky’s account, a “basic mistake the conventional view of Burkean jurisprudence makes is to think of judicial precedent as law” rather only as evidence of what the law is. (The same mistake is routinely made by those who refer to Supreme Court decisions as “constitutional law”—a bad practice reinforced by decades of legal miseducation.) Burke “believed a precedent should be followed only if it can prove itself to be good evidence of the law” (my emphasis), and he “is therefore even less friendly to precedent as such than is Justice Thomas.”
Burkean jurisprudence allows a Supreme Court justice to consider “a whole host of prudential factors” in deciding whether to grant review of a case. But “[w]hen the question of overruling is squarely presented to the Court, Burke offers the justices no justification for upholding an erroneous precedent.”
In this post a year ago, I posed and addressed the “four big questions” on judicial appointments for 2020. Let’s revisit them:
1. “Will another Supreme Court vacancy arise?”
I predicted that if a vacancy arose, whether on the liberal or on the conservative side of the Court, a “strong nominee” would “be confirmed expeditiously by the Senate.” In particular: “The 53-47 Republican margin ought to make confirmation relatively smooth, notwithstanding the ruckus the Left will raise.”
Justice Amy Coney Barrett had a smooth and quick path to Senate confirmation, a mere 39 days after Justice Ginsburg’s death.
2. “Will many new vacancies open up on the federal appellate courts?”
I was skeptical that many new vacancies would arise (“Don’t count on many additional vacancies opening up over the course of the year”) and doubted that the Senate would “reach double figures in 2020” on confirmed appellate nominees.
There were, I believe, only three new vacancies that arose in 2020—two by retirement and one by death. [Correction: Make that *four* new vacancies. A reader reminds me that I neglected to count the vacancy resulting from Barrett’s elevation.] The Senate confirmed only four appellate nominees. (A fifth, to replace First Circuit judge Juan Torruella who died on October 26, could be confirmed by January 20.)
3. “Will the Senate trial of President Trump’s impeachment interfere with judicial confirmations?”
I expressed my “doubt that the impact will be much.”
4. “Will Donald Trump win re-election?”
“If [Trump] loses re-election, the courts could be very much up for grabs.” That is where we now are.
How quickly President-elect Biden will be able to undo President Trump’s improvement of the judiciary depends heavily on whether Republicans will retain control of the Senate after this week’s two run-off elections in Georgia. Given all the crazy Republican infighting in Georgia, I can’t say that I’m optimistic.
2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.
But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”
The Senate has wrapped up the work of the 116th Congress. So it is fitting to review the current numbers on judicial nominations. As I have pointed out on a number of occasions, this administration ranks among the most impactful of any over the span of a four-year term in shaping the judiciary.
And there is still time to confirm additional Trump nominees. Although pending nominations will be automatically returned to the president by the operation of Senate rules, they can be resubmitted during the 117th Congress, which begins on Sunday, at which point those nominees who have had hearings can be processed without having to redo the hearings. Of course, the window to do so will close on January 20 with the end of the presidential term. Note that eight of the twelve nominees who have now been waiting over 300 days since they were first nominated are district court nominees in either California or New York whose nominations have been blocked by at least one Democratic home-state senator who has refused to return a blue slip.
Below is a full update on the status of President Trump’s judicial nominations through the end of the 116th Congress.
Current and known future vacancies: 54
Supreme Court: 0
Courts of Appeals: 2
District/Specialty Courts*: 52
Pending nominees for current and known future vacancies: 27
Courts of Appeals: 1
District/Specialty Courts*: 26
Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings
Days Since Original Nomination
Both Blue Slips Returned?
Judiciary Committee Hearing Date
Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes
Original Nomination Date
Days Since Original Nomination
Judiciary Committee Hearing Date
Raúl M. Arias-Marxuach (1st)
Court of Appeals Nominees Awaiting Senate Floor Votes
Days Since Original Nomination
Date Reported to Senate Floor
Nominees Awaiting Floor Votes: 4
Courts of Appeals: 0
District/Specialty Courts*: 4
# of pending nominees originally nominated > 600 days ago: 1
# of pending nominees originally nominated > 500 days ago: 1
# of pending nominees originally nominated > 400 days ago: 11
# of pending nominees originally nominated > 300 days ago: 12
All Nominees (via Judiciary Committee) Confirmed by the Senate during the 116th Congress: 160
Supreme Court: 1
Courts of Appeals: 24
District/Specialty Courts*: 135
All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day: 245
Supreme Court: 3
Courts of Appeals: 54
District/Specialty Courts*: 188
* Includes the Court of Federal Claims, Territorial Courts, and the International Trade Courts
All Article III Nominees Confirmed by the Senate since Inauguration Day: 234
2021—Happy New Year! Welcome to another year of This Day in Liberal Judicial Activism.
I assure longtime readers that you’ll find plenty of new content this year. Plus, the permanent collection should serve as a useful reminder of how dominant liberal judicial activism is in our legal culture.
Let’s hope against hope that this New Year won’t provide additional material for further This Day posts.
2009—Judge Vaughn Walker, the chief judge of the Northern District of California, issues a notice concerning a proposed revision of the local rule barring public broadcasting of judicial proceedings and calls for public comments to be submitted within five business days.
Why the rush? Walker is presiding over the challenge to California’s Proposition 8, the voter initiative that restored the state’s traditional definition of marriage (in reaction against a lawless state supreme court ruling). His New Year’s Eve surprise is a critical step in his effort to turn the case into a high-profile, culture-transforming, history-making, Scopes-style show trial of Proposition 8’s supporters. Broadcasting the upcoming trial would generate much greater publicity for ringmaster Walker’s circus and would also surely heighten the prospect that witnesses and attorneys supporting Proposition 8 would face harassment, intimidation and abuse.
Two weeks later, the Supreme Court blocks Walker’s kangaroo-court procedures. The per curiam majority opinion issues a stinging rebuke of Walker’s shenanigans:
The District Court attempted to change its rules at the eleventh hour to treat this case differently than other trials in the district. Not only did it ignore the federal statute that establishes the procedures by which its rules may be amended, its express purpose was to broadcast a high-profile trial that would include witness testimony about a contentious issue. If courts are to require that others follow regular procedures, courts must do so as well.
2009—By a vote of 4 to 3, the Montana supreme court rules (in Baxter v. Montana) that a physician who assists a patient in committing suicide cannot be prosecuted for the crime of aiding a person to commit suicide because the patient’s consent to the physician’s assistance provides a complete defense. The majority invokes a general statute that establishes consent as a defense to criminal charges and holds that the exception under that statute for conduct against public policy doesn’t apply. But, as the dissent argues, Montana law has expressly prohibited assisting suicide for over a century, so assisted suicide is plainly against public policy and the defense of consent is therefore not available.
2004—In United States v. Bad Marriage, a divided Ninth Circuit panel rejects the 41-month prison sentence received by the aptly named Mr. Bad Marriage. Released from tribal jail so that he could attend an Alcoholics Anonymous meeting, Bad Marriage instead attacked his girlfriend. His guilty plea to a charge of assault resulting in bodily injury came on top of 35 prior state-court convictions and some 60 convictions in tribal court. Applying the Sentencing Guidelines’ rules for upward departures, the sentencing judge departed from the usual sentencing range based on his judgment that Bad Marriage was likely to commit other crimes.
On review, the majority opinion by Judge Warren Ferguson somehow sees fit to thunder that the case is “a powerful indictment of the criminal justice system” and that the problems of alcohol abuse and crime on Indian reservations “cry out for treatment, not simply more prison time.” Never mind, as dissenting judge Consuelo Callahan points out, that Bad Marriage was released from jail to get treatment when he instead assaulted his girlfriend.
In the end, the panel’s spurious rejection of the upward departure causes Bad Marriage to be subjected to more prison time: Resentencing Bad Marriage after the Supreme Court’s January 2005 ruling (in United States v.Booker) that the Sentencing Guidelines are advisory, not mandatory, the district judge imposes, and a different Ninth Circuit panel affirms, a 49-month sentence.
2008—Poor Stephen Reinhardt. The Ninth Circuit arch-activist who has made a career of defying the Supreme Court—“They can’t catch them all,” he boasts of his wayward rulings—purports to take offense that a dissent from the denial of rehearing en banc in Belmontes v. Ayers (see This Day for June 13, 2008) implies that his rulings in that case have “flouted the will of the Supreme Court.” Some eleven months later, in a per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses Reinhardt—the third time in this same case that the Court has reversed or vacated one of his rulings. Further, the Court states that it finds his reasoning incomprehensible and fanciful, and it notes his manipulative recharacterization of the evidence. (See This Day for November 16, 2009.)
1965—In Scenic Hudson Preservation Conference v. Federal Power Commission, a Second Circuit panel abandons the traditional requirement that a plaintiff, in order to establish standing, must allege a concrete and particularized injury that is actual or imminent. In a ruling authored by Judge Paul R. Hays, the court declares that “those who by their activities and conduct have exhibited a special interest” in “the aesthetic, conservational, and recreational aspects of power development” have standing to challenge the Federal Power Commission’s grant of a license to a company to construct a hydroelectric project on the Hudson River.
2014—Twenty-five years after Eric Owen Mann murdered two men in cold blood, Ninth Circuit judges Sidney R. Thomas and Stephen Reinhardt combine to rule (in Mann v. Ryan) that Mann is entitled to habeas relief on his claim that his counsel’s performance at the sentencing phase of his trial was constitutionally deficient. In dissent, Judge Alex Kozinski observes:
Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.” In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.
In August 2015, the Ninth Circuit will grant en banc review of the panel ruling, and in July 2016, it will repudiate the panel ruling.
2017—You might have thought that Ninth Circuit judge Harry Pregerson’s death in November 2017 would mark the end of his long career of judicial activism. But in a divided panel decision in Hernandez v. Chappell, Judge Stephen Reinhardt adds Pregerson to his opinion to create a majority ruling that vacates, on habeas review, the convictions in 1983 of Francis Hernandez on two counts of first-degree murder, two counts of rape, and two counts of forcible sodomy.
In February 2019, in vacating a ruling issued in Reinhardt’s name eleven days after his death, the Supreme Court (in Yovino v. Rizo) will reject the proposition that judges can exercise judicial power after their death: “Federal judges are appointed for life, not for eternity.”
2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”
In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).
1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis. The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement. (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)
Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.” He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.” “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.” But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.
On review, the Third Circuit disallows the multiplier. In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career: “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.” Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”
2018—“What nonsense!” protests Judge Diarmuid O’Scannlain in his withering critique of the Ninth Circuit panel decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District. In ruling that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, the panel concluded that school-board meetings are not legislative in nature and that the Supreme Court’s rulings on legislative prayer therefore did not apply. But, as O’Scannlain complains, the panel “bizarrely transforms the Board meetings into a ‘school setting’” and implausibly maintains that any students who choose to attend a board meeting are somehow “under the control of public-school authorities.”
O’Scannlain issues his opinion in protest against the Ninth Circuit’s refusal to grant en banc rehearing of the panel ruling. His opinion is joined by seven other judges, including Clinton appointee Johnnie Rawlinson.
1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:
“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”
1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:
“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. 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.” Got that?
1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.
1996—In Coalition for Economic Equity v. Wilson, federal district judge Thelton Henderson issues a preliminary injunction barring California officials “from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.”
Adopted by California voters in the November 1996 election, Proposition 209 provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Among other things, Henderson rules that the challengers to Proposition 209 “have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community.”
But, as a unanimous Ninth Circuit panel (in an opinion by Judge Diarmuid O’Scannlain) will observe months later in reversing Henderson:
“A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.… Impediments to preferential treatment do not deny equal protection.… That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”
2007—At a hearing on a settlement agreement requiring New York City to establish policies that prohibit racial profiling, federal district judge Shira Scheindlin encourages plaintiffs to file a new lawsuit against the NYPD’s stop-and-frisk policies, outlines the basis for such a suit, declares that she would make sure the suit gets assigned to her, and assures the plaintiffs that she would rule in their favor in their effort to obtain documents they sought.
Nearly six years later, after Scheindlin has used similar measures to seize control of nearly all cases challenging the stop-and-frisk policies and has made a series of public statements responding to criticism of her actions, a Second Circuit panel will rule (in Ligon v. City of New York) that she has so badly damaged the appearance of impartiality that she must be removed from any further role in such cases.