Law & the Courts

Judge William Pryor’s ‘Against Living Common Goodism’


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

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

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

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

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

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

Law & the Courts

What Lindsey Graham Actually Said


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

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

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

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

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

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

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

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‘Why Edmund Burke Would Overrule Roe


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

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

Law & the Courts

This Day in Liberal Judicial Activism—April 5


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

Law & the Courts

This Day In Liberal Judicial Activism—April 4


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

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

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

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

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This Day in Liberal Judicial Activism—April 3

(aaron007/Getty Images)

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

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

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

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

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This Day In Liberal Judicial Activism—April 2


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

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

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

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

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

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

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

Law & the Courts

KBJ Won’t Embrace Declaration of Independence on Natural Rights


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

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

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

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

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

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

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

Law & the Courts

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


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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—April 1


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

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

April Fool’s! Just kidding. 

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

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Kagan (Plus Seven) Versus Breyer on Statutory Interpretation


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

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

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

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

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

Here is how Breyer begins his dissent:

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

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

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

Law & the Courts

Where Is Judge Jackson’s ‘Demonstrated Commitment’?

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

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

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

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

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

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 31


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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This Day in Liberal Judicial Activism—March 30


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

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

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

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

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

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This Day in Liberal Judicial Activism—March 29


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

Law & the Courts

Making Sense of Clarence Thomas’s Lone Dissent in a Recent Death-Penalty Case

Supreme Court Associate Justice Clarence Thomas attends the ceremonial swearing-in ceremony for Amy Coney Barrett to be the U.S. Supreme Court Associate Justice on the South Lawn of the White House October 26, 2020 in Washington, DC. (Tasos Katopodis/Getty Images)

In 2004, Pablo Castro, a father of nine, was working the night shift at a convenience store in Corpus Christi, Texas. Shortly before the store was due to close, Castro went to empty the garbage. He was confronted by John Ramirez, who then stabbed him 29 times, stole $1.25 from Castro’s pockets, and left him to bleed to death in the parking lot. Before the murder, Ramirez had spent three days drinking and using drugs. When he and two female companions ran out of drugs and money, they went driving in search of someone to rob so they could buy more drugs. Ramirez was on probation for a gun charge, and a warrant was out for his arrest at the time.

After murdering Castro, Ramirez went on to rob two other victims using the same knife. One of the victims was a young mother with her two-year-old son in the back seat of her car. Ramirez fled to Mexico and evaded capture for three years before being caught, tried, convicted, and sentenced to death for Castro’s murder in 2008.

Ramirez has returned to court repeatedly over the past twelve years. His execution has been stayed three times. The most recent stay was issued last summer by the Supreme Court in response to Texas’s refusal to grant Ramirez’s emergency request that his pastor be allowed to lay hands on him and pray out loud during the execution.

Last week, in an 8–1 vote, the Supreme Court ruled against Texas and sent Ramirez’s case back to the lower court. Chief Justice John Roberts, writing for the majority, ruled that a categorical ban on the laying of hands and audible prayer violated Ramirez’s rights under the Religious Land Use and Institutionalized Persons Act (RLUIPA), a federal law that protects the religious rights of inmates. RLUIPA bars government authorities from imposing “a substantial burden on the religious exercise of a person residing in or confined to an institution” unless it can show that burden is the least-restrictive means of furthering a “compelling government interest.”

The lone dissenter in the case was Justice Clarence Thomas. Thomas has been on the bench for over 30 years and is alarmed by the prevalence of what he calls “vexatious death penalty litigation.” He did not mince his words on this occasion: “Today, this Court should have denied equitable relief to a prisoner who has acted inequitably — as both the District Court and Court of Appeals did before us.” Thomas added: “The evidence that demonstrates Ramirez is bringing abusive litigation to delay his execution also strongly suggests that he does not sincerely believe that his pastor needs to touch him in the execution chamber.”

Justice Thomas also argued that continued delay in this execution harms both the state and Ramirez’s victims. An emotional amicus brief filed on behalf of some of Castro’s children begs for the enforcement of Ramirez’s sentence to end “an ordeal that has denied peace and closure to Pablo Castro’s children for seventeen years.” Thomas predicts that inmates in the future will “put the State to a stark choice: capitulate to the court-ordered accommodation that it thinks is dangerous, or litigate and delay the execution, knowing that the delay will count against it in the equitable balance.”

Religious-freedom advocates are celebrating Ramirez’s victory. I honestly hate to rain on their parade, but I worry that Ramirez v. Collier will come back to haunt us in cases that have nothing to do with methods of execution.

This terrifying murderer may or may not have sincerely converted to Christianity. Either way, the effect of his elaborate religious demands has been to delay his execution for many years — and that surely is the whole point of them.

And we must not forget that as Mr. Castro lay on the pavement bleeding to death, he didn’t have the luxury of clergy laying hands on him and praying aloud. Most people in this world die unexpectedly, and asleep or alone. It is hard to fathom how declining a request for clergy to lay hands and pray aloud is a substantial burden, especially considering that Texas allows death-row inmates the opportunity to see clergy before execution and to have clergy present at the execution itself.

What we likely have here, as Justice Thomas cogently points out, is gamesmanship disguised as sincerely held religious beliefs. As a tactic that can be applied in all sorts of cases, it may win victories in court. But in the long run it will undermine the cause of religious freedom in a different tribunal: the court of public opinion.

Law & the Courts

Coke No Longer So Woke, Lest It Go Broke


A year ago, I highlighted, and contested the legality of, the diversity quotas for outside counsel that Coca-Cola’s new general counsel Bradley Gayton had announced. Two months later, in a bizarre postscript, Gayton left his position as GC after only eight months on the job in exchange for a massive payout.

I am pleased to pass along that the American Civil Rights Project reports that Gayton’s successor as Coke’s general counsel has disclaimed Gayton’s illegal quotas, stating that they “have not been and are not policy of the company.”

In the words of the ACR Project’s Dan Morenoff, “Coke’s officers and directors recognized that their fiduciary obligations to shareholders made ‘go woke, go broke’ a problem not just for the company, but for each of them.” The ACR Project has also notified several other large companies that the similar discriminatory policies that they “merrily proclaim[]” violate federal and state laws.

Law & the Courts

This Day in Liberal Judicial Activism—March 28


2018—So much for Congress’s restriction, enacted in 1996, providing that a federal prisoner may file a second habeas petition under 28 U.S.C. 2255 only upon a showing of new evidence of innocence or a new rule of constitutional law from the Supreme Court. In United States v. Wheeler, a Fourth Circuit panel holds that a new rule of law, whether constitutional or statutory, from the court of appeals can enable a federal prisoner to bypass Congress’s restriction. 

Law & the Courts

Another Abortion Distortion

Pro-life marchers rally at the Supreme Court during the 46th annual March for Life in Washington, D.C., January 18, 2019. (Joshua Roberts/Reuters )

Thirty-six years ago, Justice Sandra Day O’Connor noted that “no legal rule or doctrine is safe from ad hoc nullification . . . when an occasion for its application arises in a case involving state regulation of abortion.” Many Justices — Rehnquist, Scalia, Kennedy, Thomas, and Gorsuch among them — have since recognized this abortion distortion. Even Justice Stevens said that abortion “motivates ad hoc decisionmaking.” And Justice Alito noted that abortion is often “used like a bulldozer to flatten legal rules that stand in the way.”

A recent decision from the U.S. Court of Appeals for the Fourth Circuit shows that this abortion distortion continues. Last month, the appellate court affirmed a district court’s preliminary injunction against enforcement of any provision of the South Carolina Fetal Heartbeat and Protection from Abortion Act. To do so, the court disregarded both longstanding precedents and arguments from South Carolina and 20 other states.

South Carolina’s law is a package of abortion regulations, including provisions requiring the abortionist to give the mother the opportunity to see a sonogram and hear the heartbeat of her child, if the child has one. As Alabama and 19 other states noted in an amicus brief we filed with the court, such laws are common and commonly upheld by courts. South Carolina’s law added an additional element. To ensure the abortionist provides this important information to the mother, he can be sued by the mother for at least $10,000 if he fails to provide her the information. The law also limits abortions after a heartbeat is detected, with various exceptions. And it has a robust severability clause saying that the legislature would have passed every “word” independently, even if enforcement of any other provision of the law is enjoined. Though abortion providers challenged only the provision of the law limiting abortions after a heartbeat is detected, the district court enjoined enforcement of every one of the law’s provisions, and the appellate court affirmed.

In doing so, the Fourth Circuit breezed past nearly every significant argument pressed by South Carolina. For instance, the abortion providers purported to have standing to challenge the law on behalf of pregnant mothers. But, as South Carolina argued, the abortion providers should not be allowed to use their lawsuit to take away a cause of action against them from the very women whose interests they purported to represent. Such a conflict had never been sanctioned in any case — not even an abortion case, where other third-party standing rules have been bent. That was South Carolina’s central argument: if taking away the first party’s statutory rights against the plaintiff is not a conflict of interest, then what is? The court ignored the point.

South Carolina also made a compelling argument that even if the abortion providers had constitutional standing, they could not state a cause of action under 42 U.S.C. § 1983. That federal statute allows persons whose rights have been violated by state officials to sue those officials. The statute’s text and hundreds of precedents limit such claims to the party personally deprived of constitutional rights. Abortionists are not such a party, for they have no constitutional right to abort unborn children. But, in a brief footnote, the court said that constitutional standing suffices to state a cause of action — ignoring the distinction between standing and causes of action, to say nothing of the hundreds of decisions rejecting third-party § 1983 claims. Again, no rule is safe from the abortion distortion, and the disruptions from this unprecedented conclusion will be especially far-reaching.

Finally, in perhaps its worst error, the Fourth Circuit disregarded the law’s severability clause and broadly asserted that requiring an ultrasound and letting the mother see it is “plainly intended to facilitate the Act’s ‘fetal heartbeat’ abortion ban” and “make[s] little sense without the ban.” The court did not explain how letting a mother see her unborn child relates in any way to the post-heartbeat abortion regulation, much less how its holding squares with the law’s clear severability clause requiring severance of any “word” invalidated. Nor did the court account for South Carolina law, which governs severability and requires that courts both follow severability clauses and enjoin enforcement of only those provisions that cannot operate independently. The court also failed to address the fact, raised by Alabama, that numerous states have concluded that laws providing this information to mothers make sense as standalone laws because numerous states have enacted such laws.

All that seemed to matter to the Fourth Circuit panel was the result: giving abortion providers maximum latitude, even if that means taking away important information from mothers when making one of the hardest decisions imaginable. As the Supreme Court explained in Gonzales v. Carhart, “The State has an interest in ensuring so grave a choice is well informed. It is self-evident that a mother who comes to regret her choice to abort must struggle with grief more anguished and sorrow more profound when she learns, only after the event, what she once did not know” about her unborn child.

Perhaps the en banc Fourth Circuit will step in and correct this latest Roe-induced departure from the rule of law. We have encouraged the court to do so in an amicus brief we filed on behalf of Alabama and 20 other states. But better still would be for the Supreme Court to take the opportunity presented it in Dobbs v. Jackson Women’s Health to address the root of these jurisprudential aberrations by overturning Roe v. Wade and allowing states to protect unborn life.

Law & the Courts

This Day in Liberal Judicial Activism—March 27

Judge Stephen R. Reinhardt listens to arguments during a hearing on California’s Proposition 8 at the 9th District Court of Appeals in San Francisco, Calif., December 6, 2010. (Eric Risberg/Reuters)

1931—Stephen Reinhardt is born in New York City. Appointed to the Ninth Circuit by Jimmy Carter in 1980 and serving in active status on that court until his death in March 2018, Judge Reinhardt will earn notoriety as the “liberal badboy of the federal judiciary.” In his overtly political view of judging, “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.” 

2014Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.” But that clear bar somehow doesn’t stop Second Circuit judge Guido Calabresi from collaborating in the publication of an extended interview about the pending Supreme Court case of Town of Greece v. Galloway. That case, in which Calabresi wrote the opinion under review, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.  

Among other things, Calabresi seeks to defend his ruling, says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.” 

Barely a month later, the Supreme Court, by a vote of 5 to 4, will reverse Calabresi’s ruling. 

2020—Despite the fact that a federal statute bars barred lower federal courts from issuing injunctions against enforcement of a class of immigration statutes except as to “an individual alien,” a Ninth Circuit panel majority, in an opinion by Chief Judge Sidney Thomas, rules (in Padilla v. ICE) that the district court had jurisdiction to issue injunctive relief as to a class of noncitizens. In dissent, Judge Bridget Bade objects that the majority’s ruling “does not square with the plain text of [the statute], is inconsistent with multiple Supreme Court cases, and needlessly creates a circuit split.” In other words, just another day in the chambers for Sidney Thomas. 

Law & the Courts

This Day in Liberal Judicial Activism—March 26


1997After two decades of school-desegregation litigation in Jenkins v. Missouri, federal district judge Russell G. Clark issues his final order in the case. Clark’s desegregation plan for the Kansas City, Missouri, School District has been (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” As this report summarizes it, Clark has ordered 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, however, have proven dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.” 

2009—In an academic paper titled “Bias and the Bar: Evaluating the ABA Ratings of Federal Judicial Nominees,” political scientists Richard L. Vining, Jr., Amy Steigerwalt, and Susan Navarro Smelcer present their statistical findings that “suggest the presence of some systematic bias towards Democratic nominees in the ABA’s ratings.” Among their findings: “In sum, when we isolate the effect of ideology, we find that, all else being equal, liberal nominees are more likely to receive the highest possible rating than their conservative counterparts.” 

Law & the Courts

Guamanians Against KBJ?


A Supreme Court confirmation hearing can be very exhausting for the nominee, so perhaps some lapses should be expected. That said, Judge Ketanji Brown Jackson’s response to a question that Senator Amy Klobuchar asked about her ruling in Guam v. United States struck me as extraordinary:

It was a CERCLA case, which is a Superfund cleanup kind of case, where the country of Guam, which had — which has a — a dump site on it that was used by both the citizens of Guam and the United States before the 1950s when the United States was stationed there, military operations happened out of Guam, and there was a lot of dumping into this site.

And over time, the site got contaminated, and Guam was charged with having to clean it up, which is millions and millions of dollars. And there are statutes — very complicated statutes about the circumstances under which you can seek contribution, under which a country like that can ask for the United States to pay some of that cost or other countries to pay some of that cost.

I can of course understand that lots of folks might not know that Guam, far from being a “country” of its own, is a territory of the United States. But Jackson wrote at least two opinions in the case, and in at least one of them she (or one of her law clerks) accurately explained Guam’s status. So how does she now think that Guam is a separate country?

What’s more, does Jackson really believe that the CERCLA statute enables the EPA to charge “other countries” for clean-up costs and then enables those countries to ask the United States to pay for those clean-up costs? And to sue the United States in federal district court to recover such costs?

(Klobuchar contended that by reversing the D.C. Circuit, which had reversed Jackson, the Supreme Court in Guam v. United States “aligned with” KBJ. The Court in fact ruled on a different ground than Jackson did, so any alignment was coincidental.)

Law & the Courts

KBJ’s Implausible Claim to Be an Originalist


In today’s Wall Street Journal, both the editorial board and law professor Randy Barnett have fine pieces highlighting how remarkable it is that Judge Ketanji Brown Jackson saw fit to offer various bows and curtsies to the interpretive methodology of originalism. Of course, neither WSJ nor Barnett is gulled by Jackson’s testimony. As Barnett points out, it’s one thing to sound like an originalist—in an evident attempt to smooth one’s path to confirmation—and it’s quite another to actually be an originalist. I like this line from the house editorial: “If originalism is only one tool in Judge Jackson’s toolbox, she might also have a buzz saw in there.”

Have in mind that it was less than a year ago, at her confirmation hearing for her D.C. Circuit nomination, that Jackson testified:

I have not had any cases [during eight years as a district judge] that have re­quired me to develop a view on con­stitutional interpretation of text in the way that the Supreme Court has to do and has to have thought about the tools of interpretation. I am aware that the Supreme Court, at least with respect to certain provisions of the Constitution that it already interpreted, has looked at history and is focused on the original meaning of the text, say, in the Second Amendment . . . context in the Heller case. I just have not had any opportunity to do that.

As a D.C. Circuit judge, Jackson has issued a grand total of two opinions, neither of which involved constitutional interpretation. So there is no indication that anything since her D.C. Circuit confirmation hearing would have led her to “develop a view on constitutional interpretation.”

There are of course various claimants to the mantle of originalism, some more plausible than others. For present purposes, I will simply note that just as no liberal supporter of Jackson believes that she is an acolyte of Justice Scalia, no Republican senator should be expected to believe that either.

Law & the Courts

KBJ Didn’t Know VMI Case?!?

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

There has properly been a lot of attention paid to Judge Ketanji Brown Jackson’s avowal of her inability to state what a woman is. But equally remarkable is the immediately preceding colloquy that Senator Marsha Blackburn had with Jackson:

Blackburn: Let me — let me ask you this then. United States versus Virginia, the Supreme Court struck down VMI’s male-only admission policy. Writing for the majority, Justice Ginsburg stated: “Supposed inherent differences are no longer accepted as a ground for race or national origin classifications. Physical differences between men and women, however, are enduring. The two sexes are not fungible. A community made up exclusively of one sex is different from a community composed of both.” Do you agree with Justice Ginsburg that there are physical differences between men and women that are enduring?

Jackson: Senator, respectfully, I — I’m not familiar with that particular quote or case, so it’s hard for me to comment as to whether —

Blackburn: All right, I’d love to get your — your opinion on — on that. And you can submit that. Do you interpret Justice Ginsburg’s meaning of men and women as male and female?

Jackson: Again, because I don’t know the case, I don’t know how I interpret it. I need to read the whole thing.

If Jackson really was “not familiar” with the VMI case, that would be astonishing and deeply discrediting. Whatever one thinks of the merits of the VMI ruling, it was perhaps Justice Ginsburg’s most celebrated opinion and a landmark Equal Protection ruling on sex discrimination. What’s more, the VMI case was especially prominent when Jackson was in her third year of law school: It was argued on January 17, 1996, and decided on June 26, 1996.

Given that Blackburn spelled out the holding of the case (“the Supreme Court struck down VMI’s male-only admission policy”), it’s implausible to contend that the case’s generic caption (United States v. Virginia) might have confused her.

Law & the Courts

This Day in Liberal Judicial Activism—March 25

(Matt Anderson/Getty Images)

1987—So much for the express ban on employment discrimination set forth in Title VII of the Civil Rights Act of 1964. Justice Brennan’s majority opinion in Johnson v. Transportation Agency holds that a Santa Clara County agency “appropriately took into account as one factor the sex of Diane Joyce in determining that she should be promoted.”  

Never mind that the county’s affirmative-action program explicitly embraced the goal of racial and sex quotas (“attainment of a County work force whose composition … includes women, disabled persons and ethnic minorities in a ratio in all job categories that reflects their distribution in the Santa Clara County area work force”). And never mind that, according to the undisturbed findings of the district court, the county had never discriminated against women in employment and that Joyce’s sex was the “determining factor” in her selection.  

As Justice Scalia points out in his dissent, Title VII speaks with “a clarity which, had it not proven so unavailing, one might well recommend as a model of statutory draftsmanship.” But the Supreme Court “completes the process of converting [Title VII] from a guarantee that race or sex will not be the basis for employment determinations, to a guarantee that it often will, and it thus “replace[s] the goal of a discrimination-free society with the quite incompatible goal of proportionate representation by race and sex in the workplace.” In sum: “A statute designed to establish a color-blind and gender-blind workplace has thus been converted into a powerful engine of racism and sexism, not merely permitting intentional race- and sex-based discrimination, but often making it, through operation of the legal system, practically compelled.” 

1993—In her plurality opinion in Wyche v. State, Florida chief justice (and, thanks to President Clinton, later Eleventh Circuit judge) Rosemary Barkett strikes down as facially unconstitutional an ordinance that prohibits loitering for the purpose of prostitution. Barkett strains to misread the ordinance as not requiring, as an element of the crime, a specific intent to engage in prostitution. Further, she asserts that even if specific intent were required, the ordinance would still be unconstitutional because of the hypothetical possibility that it could be applied in a manner that would chill First Amendment speech. Never mind that it’s difficult to see how the ordinance would reach any constitutionally protected activity, much less the substantial quantum needed for First Amendment overbreadth doctrine to apply to a facial challenge.

In two other cases that same day (E.L. v. State and Holliday v. City of Tampa), Barkett similarly strikes down as facially unconstitutional ordinances prohibiting loitering for the purpose of engaging in drug-related activity. So much for the ability of crime-ridden communities to combat the scourges of prostitution and drugs. 

2020—Michael Andrew Gary pled guilty to two counts of being a felon in possession of a firearm. In the aftermath of the Supreme Court’s 2019 ruling in Rehaif v. United States that felon-in-possession cases require the government to prove that the defendant knew he was a felon when he possessed the firearm, Gary argued that his guilty plea should be vacated because the court had failed to advise him that, if he went to trial, a jury would have to find that he knew he was a felon. In a unanimous panel opinion in United States v. Gary, Fourth Circuit chief judge Roger Gregory holds that a Rehaif error is “structural” and cannot be waived.  

On petition for rehearing en banc, Judge J. Harvie Wilkinson observes that the panel decision “creates a circuit split of yawning proportions” and “an equally profound schism with the Supreme Court’s whole approach to error review and remediation.” But he concurs in the denial of en banc review on the ground that the “panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly.”  

In June 2021 (under the caption of Greer v. United States), the Supreme Court will reject the Fourth Circuit’s holding, with only Justice Sotomayor in dissent.

Law & the Courts

This Day in Liberal Judicial Activism—March 24


1997—By a vote of 4 to 3, the Ohio supreme court rules in DeRolph v. State that Ohio’s existing system of financing its public-school system violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state.” The court orders the General Assembly to “create an entirely new school financing system.” (How a school system can ever be “thorough and efficient” so long as self-serving teachers unions have clout is a mystery that the court did not explore.) 

2009—Reviewing yet another Ninth Circuit grant of habeas relief on a claim of ineffective assistance of counsel, the Supreme Court (in Knowles v. Mirzayance) again unanimously reverses the Ninth Circuit. Perhaps it is not surprising that a court laden with so many incompetent judges is inept at determining what constitutes incompetent legal advice. 

Law & the Courts

This Day in Liberal Judicial Activism—March 23

Harold Hongju Koh speaks with Madeleine Albright at an event in Boston, April 6, 2000. (Reuters)

1970—By a vote of 5 to 3, the Supreme Court, in an opinion by Justice Brennan, rules in Goldberg v. Kelly that the Constitution requires that the government provide an evidentiary hearing before terminating welfare payments to an individual whom it has determined is not eligible to receive such payments. Justice Black objects in dissent: 

I would have little, if any, objection to the majority’s decision in this case if it were written as the report of the House Committee on Education and Labor, but, as an opinion ostensibly resting on the language of the Constitution, I find it woefully deficient.… [I]t is obvious that today’s result does not depend on the language of the Constitution itself or the principles of other decisions, but solely on the collective judgment of the majority as to what would be a fair and humane procedure in this case. 

1988—So much for the president’s duty to uphold the Constitution. Writing for a unanimous Ninth Circuit panel in Lear Siegler v. Lehman, Judge Betty Fletcher acknowledges that the federal government had “credible” grounds for believing that the federal Competition in Contracting Act of 1984 unconstitutionally required protests over the awards of certain contracts to be referred to a legislative-branch official (the Comptroller General). She further acknowledges that that legal question was not governed by clear judicial precedent. But, she rules, the government’s “position … that the President’s duty to uphold the Constitution and faithfully execute the laws empowers the President to interpret the Constitution and disregard laws he deems unconstitutional” (emphasis in original) is supposedly “utterly at odds with the texture and plain language of the Constitution, and with nearly two centuries of judicial precedent.” 

2004—The Left is adept at what Abraham Lincoln labeled “lullaby arguments”—false claims designed to lull the listener into a sense of complacency. In testimony at a Senate hearing, law professor Cass Sunstein argues that a constitutional amendment on marriage is unnecessary because the prospect that the Supreme Court would invent a constitutional right to same-sex marriage is utterly fanciful: 

It is possible that the Chicago White Sox and the Chicago Cubs will meet in the World Series and play to a seventh game tie. That is unlikely, but that scenario is more likely than it is that the Supreme Court of the United States, as currently constituted, will hold that there is a constitutional right to same-sex marriage. This is a reckless conception of what is on the horizon and it is indefensible by reference to anything any Supreme Court Justice has said, at least on the bench, and I believe even off the bench.

Sunstein was testifying less than one year after the Supreme Court’s 6-3 decision in Lawrence v. Texas. In his majority opinion for five justices in that case, Justice Kennedy combined his usual gauzy rhetoric with the specific assertions that “our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child reading, and education” (emphasis added) and that “[p]ersons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do.” So much for Sunstein’s claim that any concern that the Court might “hold that there is a constitutional right to same-sex marriage” was “a reckless conception of what is on the horizon” and “indefensible by reference to anything any Supreme Court Justice has said.” 

2009—President Obama nominates radical transnationalist Harold Koh to be State Department legal adviser, a position that would give Koh a cornucopia of opportunities to advance his agenda of having American courts import international law to override the policies that American citizens adopt through the processes of representative government. (See here for more detail.) Three months later, the Senate confirms Koh by a 62-35 vote.

Law & the Courts

This Day in Liberal Judicial Activism—March 22


1972—Who knew that contraception had such generative power? A mere seven years after Justice Douglas’s majority opinion in Griswold v. Connecticut (see This Day for June 7, 1965) holds that married persons have a right to contraception hidden in the “penumbras” and “emanations” surrounding a right to marital privacy, Justice Brennan’s majority opinion in Eisenstadt v. Baird extends that right to unmarried persons. Dismissing as immaterial the marital relationship that Douglas had posited to be pivotal, Brennan, in a wondrous bit of bootstrapping, uses the Griswold holding as the basis for an equal-protection ruling (“whatever the rights of the individual to access to contraceptives may be, the rights must be the same for the unmarried and the married alike”) that undermines the very foundation of Griswold.  
Brennan’s hijinx don’t end there. With Roe v. Wade already pending (it was first argued in December 1971), Brennan smuggles into his Eisenstadt opinion this assertion: “If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.” One year later, Justice Blackmun’s majority opinion in Roe quotes this passage immediately before declaring that “[t]hat right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy.” 

Law & the Courts

KBJ Offers Formalist Account of Judicial Role


From Judge Ketanji Brown Jackson’s opening statement today:

I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath.

If the nominee of a Republican president uttered those words, lefty law professors would be racing to condemn them as hopelessly naïve or outright deceptive. There is no such thing as a “neutral posture,” they would tell us, and the pretense of adopting such a posture disguises the policy choices that inhere in judging. The Left would heap scorn on a conservative nominee who summarized the judicial role as impartially applying the law to the facts—as being an umpire calling balls and strikes, if you will.

Lest you take false hope from KBJ’s statement, have in mind that even Sonia Sotomayor adopted formalist-sounding rhetoric at her confirmation hearing. As I wrote back then:

Judge Sotomayor deserves an A+ for brazen doublespeak.  She emphatically rejected the lawless “empathy” standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality.  She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice.  She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.

Law & the Courts

This Day in Liberal Judicial Activism—March 21

(Carlos Jasso/Reuters)

 2011—In  Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.” 

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.” 

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds: 

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.” 

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement. 

 2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury. 

 The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there is no real constitutional violation here anyway.” 

2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.)  

Law & the Courts

This Day in Liberal Judicial Activism—March 20


 Mar. 20, 1981—By a vote of 4 to 2, the California supreme court rules (in Committee to Defend Reproductive Rights v. Myers) that the state constitution forbids California from placing restrictions on the Medicaid funding of abortions when it fully funds the childbirth expenses of indigent women. 

Law & the Courts

This Day in Liberal Judicial Activism—March 19


1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college. 
In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution. 

Law & the Courts

This Day in Liberal Judicial Activism—March 18


1963— As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day.  

In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected. 

Law & the Courts

This Day in Liberal Judicial Activism—March 17

President Barack Obama gestures during his first news conference as president in the East Room of the White House, February 9, 2009. (Jim Bourg/Reuters)

1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.”  

2009President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”! 

 2020—In a divided panel ruling (in Pakdel v. City of San Francisco), the majority opinion of Ninth Circuit judge Michelle T. Friedland holds that a takings challenge is “unripe” because plaintiffs failed to avail themselves of a previously existing opportunity to apply for an exemption. But as Judge Carlos T. Bea argues in dissent, the government’s action is final and therefore ripe for review, and the majority is instead importing into the takings context a requirement that plaintiffs exhaust state remedies—a requirement that the Supreme Court had rejected just the previous year.  

 Some months later, nine judges will dissent from the Ninth Circuit’s denial of en banc review. 


The Military and Vaccine Mandates: Let the Religious Freedom Restoration Act Work

A U.S. Navy officer from the amphibious ship USS San Diego (LPD 22) receives a vaccine at the navy port in Manama, Bahrain, on February 26. This image was released by the U.S. Navy on February 27, 2021. (Brandon Woods/U.S. Navy/Handout via Reuters)

It has been said that the only law that works is the law of unintended consequences. The Navy is certain to reinforce that impression if it gets its way in the emergency proceeding it filed last week at the U.S. Supreme Court.

For decades, government lawyers have claimed that respecting religious liberty in the military will cause the sky to fall. In their most recent filing, they’re back at it, asking for a blanket exemption from the Religious Freedom Restoration Act on national-security grounds. But the truth is that courts have extensive experience applying RFRA to the military in ways that have permitted hundreds of religious minorities and other believers to serve their country without having to abandon their religious beliefs — all without compromising the military’s weighty national-security interests. That is just what Congress intended. Rather than jumping in to change the standard set by Congress — which could upend decades of progress in protecting service members’ religious freedom — the Court should follow the proven track and let RFRA balancing do its work, as is already happening in the district court.

In last week’s emergency filing, the solicitor general asked the Supreme Court to parachute into a dispute over the Navy’s Covid-vaccine mandate. In United States Navy SEALS 1-26 v. Austin, members of the Navy’s special-ops team sought protection from the mandate because of their religious objections to the vaccine. A federal district court issued a preliminary injunction barring the Navy from discharging the plaintiffs or from taking adverse action against them because of their objection. Three judges on the Fifth Circuit unanimously affirmed, noting that the Navy already allows medical exemptions to the same mandate. Now the Navy wants the Supreme Court to step in.

The Navy wisely is not asking the Court to overrule the full injunction. But the relief it seeks is not much narrower. It seeks unfettered discretion in making all deployment decisions of every kind — emergency or not, short-notice or not, dangerous circumstances or not — without having to meet RFRA’s standard. The Constitution, however, gives Congressthe power to “make rules” governing “the land and naval Forces,” and Congress has directed the Navy to respect sailors’ religious liberty absent a compelling interest that can’t be met any other way. Rather than consider the plaintiffs’ religious objections under that standard, the Navy claims that applying the congressionally imposed RFRA standard to military assignments can never be appropriate, because it could interfere with national security.

RFRA and the Military

The solicitor general’s argument misunderstands RFRA. The law allows important national-security interests to trump religious liberty in certain circumstances, namely where the government can show a true compelling interest that cannot be met another way. But the government needs to offer proof in the trial court about particular cases and circumstances, rather than claiming that all decisions are always exempt. Adopting the Navy’s theory would blow a military-sized hole through RFRA. All four branches of the military could assert national security as a justification for any of their decisions. And they frequently do — in ways adverse to religious liberty. In 1997, for example, the Navy issued a letter forbidding military chaplains from supporting the Partial Birth Abortion Ban Act over the pulpit. It argued that permitting chaplains to speak on the issue could “severely undermine military discipline, cohesion, and readiness to the detriment of the National Security.” Rigdon v. Perry, 962 F. Supp. 150, 161-62 (D.D.C. 1997). The Army repeated the same error in 2012, when it told Catholic chaplains to disobey their archbishop’s directive to read from the pulpit a pastoral letter about the church’s position on the federal contraception mandate. The Army backed down only when reminded about RFRA. And just over a year ago, the Navy banned sailors from attending off-base houses of worship, arguing this was “essential” to “ensuring the Navy’s operational readiness.” But just two weeks later, after members of Congress pointed to RFRA, the Navy issued a “clarification” that beat a hasty retreat.

Rather than give the Navy a free pass, the Court should look to these and other historical applications to see how RFRA has worked in the military context. As in prisons, this prior experience shows that RFRA works as Congress anticipated — significantly protecting service members’ religious exercise without hindering the government’s weighty institutional interests.

The experiences of service members with religious beards are particularly instructive. Consider Edmund Di Liscia, a Hasidic Jew serving in the Navy. After he received a temporary accommodation for his religious beard, he deployed in 2021 on an aircraft carrier to the South China Sea at a time of heightened tension with China. While there, the Navy denied his request for a permanent accommodation on grounds it would “present an unacceptable risk to the Navy’s compelling interest in mission accomplishment.” He was ordered to shave within 24 hours. But after we raced overnight to file an RFRA complaint on his behalf and the D.C. federal district court temporarily prevented the forced shaving, the Navy backed down — perhaps because it quickly came to light that the ship’s captain, to boost morale, had granted a ship-wide shaving reprieve for the course of the deployment, allowing all sailors to regularly skip shaving for weeks at a time.

Although Di Liscia’s lawsuit is still pending, RFRA claims by other service members show how RFRA can protect religious liberty while appropriately respecting military interests. In 2014, the ACLU represented Sikh-American Iknoor Singh in an RFRA challenge to the Army’s barring him from the ROTC because of his articles of faith, including his turban, unshorn hair, and beard. Singh v. McHugh, 109 F. Supp. 3d 72 (D.D.C. 2015), amended at 185 F. Supp. 3d 201 (D.D.C. 2016). Like the Navy is now, the Army claimed that compelling interests in military readiness justified the ban. But after the court permitted extensive discovery into the Army’s alleged interest, the claim fell flat. There, the evidence revealed that the Army “tolerate[d] so many idiosyncratic deviations from its grooming regulations” that it could not credibly contend a religious beard exemption would hinder its ability “to perform effectively.” 185 F. Supp. at 226 (cleaned up). In fact, the Army had granted over 100,000 beard exemptions for medical reasons. Id. at 207-08.

The court in that case also relied heavily on investigations into three observant Sikhs who had been accommodated in 2013 for their unique language skills and medical training, which the Army needed at the time. The court found that each of these soldiers had “earned commendations and outstanding reviews,” without “any of the negative consequences that [the Army] predicted would flow from granting a similar exception” to the ROTC candidate. Id. at 229. Although the court acknowledged “the doctrine that cautions judges to afford substantial deference to the judgment of military commanders” in certain matters, id. at 204, that discretion was subject to the “congressional determination — enshrined in RFRA — to tip the scale in favor of individual religions rights.” Id.

A later lawsuit by Captain Simratpal Singh ultimately led the Army to change its policy to accommodate Sikhs and other religious minorities with unique religious requirements. Captain Singh was a graduate of West Point and Ranger School, earned the Bronze Star medal for his service in Afghanistan, and earned a master’s degree in engineering management. It was around that time that he attended a Vaisakhi celebration at the Pentagon and met the three Sikhs accommodated for their language and medical skills. Inspired to return to fully observing his faith, which required him to maintain a full beard, he brought an RFRA claim that ultimately led to the Army’s adopting a new accommodation policy.

The Army’s admirable policy is an excellent example of how RFRA protects religious exercise while respecting national security and other similar concerns. The policy recognizes that, in the vast majority of situations, a beard poses no threat to military interests. Thus, it restricts religious beards in only rare situations, such as where there is an actual threat of exposure to dangerous biological, chemical, or nuclear agents. And even then, the policy permits appeal at an appropriate time, which would allow the soldier to show that there is no real threat or that there are other means to provide adequate protection.

RFRA’s Application Here

That’s a far cry from the blank check that the Navy is trying to get the Supreme Court to write here. To be sure, on close calls, courts often defer to military decisions. But that deference comes within the RFRA balancing test and is no justification to simply throw out RFRA’s analysis altogether. When Arkansas prisons pushed this “unquestioning deference” approach not long ago, they rightly lost 9-0 at the Supreme Court. And the Army’s experience with beards shows that such broad deference isn’t necessary: RFRA can protect the religious rights of America’s service members without interfering with the military’s compelling interests. Indeed, after just a few years with the new Army policy, there are believed to be more than 100 Sikhs now honorably serving throughout the military with their articles of faith in place.

As with the Army and beards, there is no reason the Navy could not develop policies for addressing religious objections to vaccines that recognize the broad range of roles where being unvaccinated would pose no risk to military readiness or mission, while still reserving discretion for emergency situations. Certainly the risk would inarguably be less for Navy SEALs assigned to the more common training, logistics, and other such roles.

Indeed, the Navy already has a system in place for making case-by-case determinations through its accommodation request process. But rather than applying RFRA as its own policy requires it to do, it denied literally every request for a religious accommodation request, even while the military overall has granted thousands of nonreligious exemptions. It is no surprise then that lower courts faced with the resulting lawsuits have consistently characterized the Navy’s accommodation process as “illusory and insincere” and mere “theater.” Before blowing up RFRA in the military context, the Court should first require the Navy to give it a try.

RFRA is not a “religion always wins” rule. It simply requires that government — before suppressing religion — think carefully through the options. If there is a way to avoid crushing the sincere religious beliefs of our men and women in uniform, then those beliefs must be accommodated. But in truly compelling circumstances, and where really necessary, the government will prevail.

Rather than letting the Navy bypass that process, the Court should allow the district court to review the specific risks of Covid-19 for individuals of the age, health, and fitness of Navy SEALs, the unique circumstances that arise in special operations, how the Navy historically has responded to other contagious diseases with a similar risk profile, and how these factors would apply to the work of the individual plaintiffs. The Navy can of course offer evidence as to situations in which an unvaccinated SEAL would pose a heightened risk. But simply asserting that every deployment decision is always a compelling interest will not do. Moreover, embracing that position would undermine RFRA’s application in all other military contexts, including in protecting the right of religious minorities to serve without having to abandon their faith. In short, the Court should simply let RFRA work and allow the government to make its arguments as to particular cases in the district court.

Eric Baxter is senior counsel and vice president of the Becket Fund for Religious Liberty. Daniel Blomberg is senior counsel at the Becket Fund for Religious Liberty.

Law & the Courts

With Friends Like These…—On Conservative Supporters of KBJ


A fundamental respect in which the Senate confirmation process for Supreme Court justices has changed over the past 35 years or so is that it has shifted decisively from a model of deference to the president to a model of assessing nominees based on judicial philosophy. Under the deference model, senators ask only whether the nominee has the supposed “objective qualifications”—some suitable mix of experience, ability, and character—to serve on the Supreme Court, and they vote for a nominee of an opposite-party president who has those qualifications. Under the judicial-philosophy model, the nominee’s (stated or perceived) judicial philosophy is the critical factor—or at least a critical factor—in how senators vote.

There are some reasonable arguments that can be made on behalf of the deference model. For what it’s worth, I strongly favor the judicial-philosophy model, in part because I find it very strange to exclude from the concept of “objective qualifications” the elementary matter of how a nominee approaches the task of interpreting the Constitution and federal statutes, in part because I think that it promotes greater accountability on the part of senators.

But for present purposes I will simply observe that the deference model is long dead and has no chance of being revived so long as the political bases of both parties remain so sharply divided on grounds of judicial philosophy. Joe Biden himself voted against the nominations of John Roberts and Samuel Alito (as well as of Robert Bork and Clarence Thomas) and even supported the effort to filibuster the Alito nomination.

I therefore find it baffling that some conservatives—including folks I like and admire—have urged Senate Republicans to vote for Ketanji Brown Jackson’s nomination on the basis (as one group letter* puts it) of “her breadth of experience, demonstrated ability, and personal attributes of intellect and character” and to set aside their “disagree[ments] with many of Judge Jackson’s legal views.”

Some of these supporters of Jackson might imagine that they can somehow wish a deference model back into existence. But they don’t even acknowledge that they are calling on Senate Republicans to abandon the judicial-philosophy standard that has long prevailed.

* For what it’s worth, the group letter, title aside, does not purport that all of its signatories are conservatives. The title of the letter asserts that it is a “letter from conservatives,” but the text more guardedly states that it is from “lawyers and others who have served in appointed positions in Republican administrations or hold conservative political or legal views” (emphasis added). So that explains how its signatories can include, say, Christine Todd Whitman and Connie Morella.

Law & the Courts

An Unavoidable Decision

A pro-life protestor holds a sign in the shape of the state of Mississippi outside the Supreme Court building, on the day of oral arguments in the Mississippi abortion rights case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021. (Jonathan Ernst/Reuters)

In less than four months, the Supreme Court will issue its ruling in Dobbs v. Jackson Women’s Health Organization and determine whether states may protect unborn children from elective abortions before viability. Because Roe v. Wade and Planned Parenthood v. Casey prevent states from imposing an undue burden on pre-viability elective abortions, the parties in Dobbs focused on whether the Constitution protects a right to elective abortion at all. The abortion providers and the Biden administration both told the Court that “there are no half-measures here”: affirm Roe and Casey or overrule them and return the issue to the states.

At oral argument, however, Chief Justice John Roberts suggested that the Court could uphold Mississippi’s 15-week abortion regulation without overruling Roe and Casey. Under the principle of stare decisis, the Court generally follows its precedents unless there is a good reason to overrule them. But that principle applies only to holdings of the Court, and Chief Justice Roberts suggested that perhaps Roe and Casey’s viability rule was not a holding. He reasoned that no regulation in those cases hinged on viability, so the viability rule could be a nonbinding statement that does not state the law — or “dicta.”

Whether the chief justice’s suggestion is correct is crucial to the Court’s ultimate ruling in Dobbs. If he’s right, the Court could avoid deciding whether the Constitution guarantees a right to elective abortion. That would require the Court to formulate some other standard, which raises its own problems for justices seeking to follow the Constitution’s text in light of our nation’s history and traditions. But if the chief justice’s suggestion is wrong, it is hard to see how the Court can avoid deciding the fundamental question: Does the Constitution guarantee a right to elective abortion?

Recent scholarship, including a new article (which I co-authored) surveying American abortion jurisprudence for the last 50 years, contradicts Chief Justice Roberts’s suggestion. He relied on the personal papers of Justice Blackmun, who wrote the opinion in Roe and privately suggested that the drafts contained some dicta. Of course, a judge’s personal papers are not part of the Court’s opinion and have no bearing on whether a statement is dicta. Regardless, Justice Blackmun never labeled the viability rule dicta and later referred to it as one of Roe’s “critical elements.” Plus, the Court’s internal deliberations focused far more on the viability rule than on any other issue in the case — including the constitutional grounding of a right to abortion — and a “holding” must include the Court’s reasoning in addition to its conclusion.

After Roe, the Court immediately applied both the viability rule and the first-trimester line then applicable to maternal-health regulations. On the day Roe was decided, the Court struck down another law based on the first-trimester line, Roe’s other “critical element.” A few years later, the Court invalidated a law because it could have been read to deviate slightly from Roe’s viability rule. At least a dozen Supreme Court decisions have struck down abortion regulations based on the viability rule. And in its 1992 Casey decision, the Court again affirmed the viability rule on principles of stare decisis, calling it Roe’s “central holding.”

Every federal abortion decision since then has applied the viability rule, with no federal judge doubting its status as the cornerstone of abortion jurisprudence in at least the last three decades. The chief justice’s own opinions have treated the viability rule as a holding. Despite many opportunities, the chief justice has never suggested that the viability rule is not binding. Given the immense legal and practical consequences that his new theory would entail, it is implausible that such a suggestion would have gone unsaid. And given that the chief justice applied stare decisis even to factual questions about applying the viability rule, it is not hard to imagine what sort of reaction a lower court opinion that wrote off viability as dicta would have received at the high court. Unsurprisingly, no court has made the attempt, or even suggested that was an option.

No doubt some believe that a narrow decision in Dobbs could avoid criticism from certain quarters. But as Chief Justice Roberts explained in another case, the Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.” Political controversy is no reason to distort judicial decision-making. To the contrary, it provides even more reason to follow the law. The Supreme Court does not conserve judicial capital or protect its legitimacy by a decision that preserves a prior case in name only. Relabeling the viability rule as dicta would contradict every federal judge and justice to address the issue for at least 30 years. It would imply that states and courts have operated for decades under a rule that was never law at all — wrongly forestalling dozens of democratically enacted statutes that sought to protect unborn life and maternal health. Because the Court’s abortion jurisprudence has rested for decades on Roe and Casey’s viability rule, the Court in Dobbs must confront that rule head-on.

Law & the Courts

This Day in Liberal Judicial Activism—March 15


1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.” 

2016—No plaintiff? So what? 

Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.”  

On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.” 


Law & the Courts

This Day in Liberal Judicial Activism—March 14


2011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism: 

It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia. 

Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas.