Law & the Courts

This Day in Liberal Judicial Activism—March 13

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(LightFieldStudios/iStock/Getty Images)

1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”   

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violates the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.” 

 

Law & the Courts

Merrick Garland’s Justice Department One Year Later

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Today marks the one-year anniversary of the start of Merrick Garland’s tenure as attorney general, so it is an occasion to consider how the Department of Justice has changed from what preceded it. When Jeff Sessions became attorney general in 2017 following a Democratic administration, he made his mark with a number of measures that reflected his commitment to the rule of law. Today, the Department offers us a reminder that elections have consequences. Garland has used his platform to undo much of the prior policy he inherited and to please the Left on every conceivable issue before him.

Barely over a month into his new job, Garland rescinded a 2018 Sessions memorandum that reformed the process of obtaining consent decrees and settlement agreements with state and local governments so that they would be narrowly tailored to remedying alleged violations instead of seeking to achieve broad policy objectives that would not normally be obtainable through litigation. Garland’s Justice Department instead pursued broad-ranging pattern-or-practice probes in cities including Minneapolis and Phoenix precisely with a view toward obtaining police department overhauls through consent decrees. That went well beyond the justice that was already being sought through separate federal criminal investigations of police misconduct in cases like the police killing of George Floyd.

On immigration, Garland vacated several decisions made by Sessions and his successor, William Barr, abandoning limitations on asylum eligibility claims based on fear of private criminal activity absent a government’s inability or refusal to curtail it and restoring wide discretion for immigration judges to administratively close cases.

On July 1, Garland imposed a federal moratorium on the death penalty. The rationale he advanced for doing so was a review of federal execution protocols and practices. But of course this comports with a longstanding priority among liberals to do away with the death penalty, a goal they are glad to seek by judicial fiat if that is what it takes.

Another Sessions policy had been to rein in administrative agencies, which imposed under the guise of issuing guidance documents virtual regulations that bound parties outside the executive branch. Sessions’ 2017 memorandum on the subject established that guidance documents were simply to restate existing legal requirements, not to impose new, coercive rules upon parties outside the government. Garland rescinded the memorandum on the same day he issued his death penalty moratorium.

Also last summer, the Justice Department filed suit in an attempt to invalidate the Republican-run State of Georgia’s new election law as an attempt by the legislature “to deny or abridge the right of Black Georgians to vote on account of race or color.” The lawsuit was part of the exercise in demagoguery that President Biden and numerous congressional Democrats engaged in when they compared Georgia’s law to Jim Crow. Biden specifically asserted that the law “makes Jim Crow look like Jim Eagle.”

What nonsense. State election officials had sent every active voter unsolicited applications for a mail ballot under a temporary pandemic emergency authorization in 2020. After confusion resulted, Georgia’s new law barred the unsolicited mailing, but it actually expanded voting access from the law that had governed before the pandemic. Its no-excuse absentee voting contrasted with sixteen states, including Biden’s home state of Delaware and deep-blue New York, that imposed stricter voting requirements. The Georgia law authorized and set standards and security measures for drop boxes to deposit ballots, and drop boxes had been illegal in 2019. The law also expanded early voting days and hours. Of course, the politicized Biden/Garland Justice Department has been glad to leave blue states with stricter election laws alone.

In October, parents angry at school boards for mask and vaccine mandates, school closures, and the woke indoctrination that plagues so many classrooms found themselves in the crosshairs of the Garland Justice Department. The attorney general issued a memorandum directing the FBI to work with law enforcement to develop “strategies for addressing threats against school administrators, board members, teachers, and staff.” Of course, many of the referenced threats consisted of the basic exercise of First Amendment rights, and much of the parental anger that captured recent headlines was grounded in legitimate grievances against an educational establishment that was disregarding the best interests of students.

To be sure, some incidents involved threats of violence that were legitimate subjects for law enforcement—but on the state and local level. There was no federal interest implicated by the underlying conduct, and the Justice Department revealed its own warped priorities by treating parents the way it would potential terrorists. Perhaps that is why the Justice Department’s announcement of a domestic terrorism unit in January raised the question of how soberly it would define who constitutes a threat.

Not to leave any stone in the culture wars unturned, the Justice Department filed a lawsuit in September that made scurrilous claims straining to establish the Biden administration’s ability to block Texas’ “heartbeat” law. The Fifth Circuit stayed a district court injunction against Texas, and after the Supreme Court heard the administration’s appeal attempting to vacate the stay, it dismissed certiorari as improvidently granted, with only Justice Sotomayor in dissent.

In other Supreme Court cases, Garland’s Justice Department took positions against religious freedom claims. It joined powerful teachers’ unions in support of Maine’s ban on families from using education vouchers at private schools with a “sectarian” curriculum. It asked the Court to lift a preliminary injunction protecting Navy Seals with religious objections to a vaccine requirement from “adverse action.”

The Department also staunchly defended Harvard University’s racially discriminatory admissions policies in what will likely be the Court’s most important affirmative action case in a generation. The discrimination facing Asian American college applicants is so stark that, according to a Princeton study, students of that background must score 140 points higher than whites on the SAT to have the same chance of admission to private colleges—a disadvantage sometimes called “the Asian tax.”

In short, whether the issue has been policing, immigration, the death penalty, overreaching federal agencies, election law, education, abortion, religious freedom, or affirmative action, the Garland Justice Department has veered well to the left of most law-abiding citizens.

Of course, this record reflects a Biden administration that already demonstrated it had been captured by the Left from day one. Radicals appointed to top Justice Department positions, such as Associate Attorney General Vanita Gupta and Assistant Attorney General for Civil Rights Kristen Clarke, additionally illustrated this trend. But no official in the Justice Department bears as much blame for its ideological compass as the man who runs it. Just as Garland was misbranded as a moderate by his boosters back in 2016, when President Obama nominated him to the Supreme Court, Joe Biden was misbranded as a moderate when he ran for president in 2020. If either man can now be described as moderate, I would be afraid to see who meets the definition of extreme.

Law & the Courts

Texas Supreme Court: Licensing Officials Have No Authority to Enforce Heartbeat Act

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Three months ago, the Supreme Court ruled (in Whole Woman’s Health v. Jackson) that a challenge brought by abortion providers against various defendants over enforcement of the Texas Heartbeat Act (aka S.B. 8) could proceed against state licensing officials. Justice Gorsuch’s plurality opinion on this point tentatively concluded that “at least based on the limited arguments put to us at this stage of the litigation, it appears that the licensing defendants do have authority to enforce S.B. 8.” At the same time, he acknowledged the elementary point that Texas courts are the “final arbiters” of the meaning of Texas law.

On remand, the Fifth Circuit sensibly certified to the Texas Supreme Court the question whether state licensing officials actually have authority to enforce the Heartbeat Act. In a unanimous ruling today, the Texas Supreme Court explained that the licensing officials have no such authority, direct or indirect.

The Texas Supreme Court’s ruling should lead to the dismissal of the abortion providers’ lawsuit.

The Texas Supreme Court’s ruling provides clarity on who can, and who cannot, enforce the Heartbeat Act. But, as I have explained, it is unlikely to have any real-world consequences. Texas abortion providers have been deterred from violating the Heartbeat Act by the massive monetary liability they face, especially if Roe and Casey are overturned. Relief against the licensing officials would have done nothing to alter that exposure.

Law & the Courts

This Day in Liberal Judicial Activism—March 11

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2020—“I think it needed to be said,” asserts octogenarian federal district judge Lynn S. Adelman in defense of his 35-page political screed titled “The Roberts Court’s Assault on Democracy.”  

In fact, Adelman says nothing that hasn’t already been said, over and over, in the fever swamps of the Left. He condemns Chief Justice Roberts’s metaphor of a judge as umpire as a “masterpiece of disingenuousness,” charges that “the Court’s hard right majority is actively participating in undermining American democracy,” alleges that the Court’s rulings “constitute a direct assault on the right of poor people and minorities to vote,” and complains that the “Republican Party has been particularly afflicted by the concentration of wealth at the top,” “has also become more partisan, more ideological and more uncompromising,” and has displayed a “zealous partisanship” on judicial appointments that “reminds one of nothing so much as … those fervent defenders of slavery who pushed the South into the Civil War.” (And that’s all just in his screed’s first eight pages. How could anyone read further?)  

Adelman, a longtime liberal state senator who was appointed to the federal bench by Bill Clinton in 1997, might be said to epitomize the judge as politician in a robe—except that he is known to appear frequently in his courtroom without even bothering with the pretense of a robe.   

Law & the Courts

‘The Moral Authority of Original Meaning’

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That’s the title of an excellent new law-review article by Catholic University law professor Joel Alicea, whose outstanding scholarship on originalism I have highlighted before. Responding primarily to Adrian Vermeule’s critique of originalism, Alicea presents an affirmative argument for originalism from within the same natural-law tradition that Vermeule invokes. As he puts it, he aims to “demonstrate that, far from being a ‘morally empty jurisprudence,’ originalism rests on a robust moral argument drawn from the natural law.”

Alicea grounds originalism in the legitimate authority of the people as sovereign. But, as he emphasizes, that grounding does not require direct democracy or “any particular form of government or allocation of authority among constitutional actors.” What it does require is that constitutional actors “respect the limits of legitimate authority,” which, he argues, “entails obeying the original meaning” of constitutional provisions. Judges therefore have no authority to “displace the original meaning with the natural law.”

I have no interest in intervening in the debate between Alicea and Vermeule, but I will observe that Alicea’s article strikes me as a Thomistic elaboration of my own observation that separation of powers and federalism are part of the moral ground of the Constitution, as is the duty of judges not to indulge their own moral beliefs in discerning and applying the meaning of constitutional provisions.

Law & the Courts

KBJ’s Duty to Recuse from Harvard Racial-Preferences Case

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I’m having difficulty understanding why there is any doubt that Ketanji Brown Jackson, as a Supreme Court justice, would be required to recuse herself from taking part in the Court’s consideration of the challenge brought by Students for Fair Admissions to Harvard’s use of racial preferences in admissions.

Judge Jackson has been a member of Harvard’s Board of Overseers since 2016. As Harvard itself explains, its Board of Overseers is one of Harvard’s two “governing boards.” Together with the Harvard Corporation (also known as the President and Fellows of Harvard College), the Board of Overseers “help[s] to shape the University’s agenda, inquire into the quality and progress of its activities, and assure that Harvard remains true to its mission.” It “provides counsel to the University’s leadership on priorities, plans, and strategic initiatives.”

The federal statute on judicial recusal states: “Any justice … shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” In many instances, it might be unclear whether that provision governs. But in other instances it is clear.

Assume that a person served on the board of directors of Coca-Cola at a time when a lawsuit against Coca-Cola was pending. That person, after stepping down from Coke’s board, gets appointed to the Supreme Court, and that very lawsuit ends up in the Court for decision. Would anyone argue that the justice could take part in deciding the case?

I don’t see how Judge Jackson’s situation is any different. Surely, given the scope of the Board of Overseers’ responsibilities, Harvard’s odd structure of two governing boards doesn’t matter. (I would think that even service on a purely advisory board would warrant recusal.) Nor do I see how it would matter whether Judge Jackson took part in any discussions regarding the case or Harvard’s admissions policies, just as I don’t think it would matter whether the Coke director ever discussed the lawsuit against Coke.

Members of the Board of Overseers are in any event “expected to honor the strict confidentiality of meetings and discussions” and are required to sign a statement in which they commit to do so, so reliable information on any discussions should be impossible to obtain. It would be bizarre and self-defeating if Harvard were to release them from this obligation in an effort to enable Jackson to take part in the Harvard case.

Nor do I think that the Coke board and the Harvard board can be distinguished on the ground that Coke directors receive substantial compensation and members of Harvard’s Board of Overseers presumably don’t. Set aside whether various perquisites accompany service on Harvard’s Board. What matters under the federal statute is that it is entirely reasonable to question the impartiality of someone who served on the board of an entity that is a party to a case that was pending during that person’s service.

One factor that intensifies the case for recusal (and that isn’t necessarily present in my Coke example) is that Students for Fair Admissions’ lawsuit, while filed before Jackson joined Harvard’s board, challenges policies and practices that have remained in effect during her tenure.

Law & the Courts

This Day in Liberal Judicial Activism—March 9

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1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan 

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.  

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas). 

1983—In Community for Creative Non-Violence v. Watt, the en banc D.C. Circuit rules, by a 6-5 vote, that the First Amendment bars the National Park Service from applying its anti-camping regulations to demonstrators who, as part of their protests on behalf of the poor and the homeless, sought permission to sleep in Lafayette Park. The six judges in the majority divide among four separate opinions, leading Judge Malcolm Wilkey in dissent to observe that “it seems apparent that [our six colleagues] are quite sure that these appellants should be allowed to sleep in Lafayette Park, but they have had great difficulty in figuring out why.” 

Judge Wilkey, in the principal dissent (for all five dissenters), opines that even on the assumption that sleeping qualifies as speech for First Amendment purposes, the anti-camping regulations may be applied. Judge Antonin Scalia (joined by Judges MacKinnon and Bork) separately dissents “flatly to deny that sleeping is or can ever be speech for First Amendment purposes.” Scalia observes: “That this should seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.” 

One year later, in Clark v. Community for Creative Non-Violence, the Supreme Court will reverse the D.C. Circuit by a 7-2 vote (with—surprise!—Justices Brennan and Marshall in dissent).    

Law & the Courts

This Day in Liberal Judicial Activism—March 8

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The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

 1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version. 

1971—In a striking sign of the intellectual aimlessness that will plague his tenure, Chief Justice Warren E. Burger pens a unanimous opinion in Griggs v. Duke Power Co. that misreads Title VII of the Civil Rights Act of 1964 to bar employment practices that are not discriminatory in intent but that have a racially disparate impact. In order to justify any such practice, Burger holds, the employer has “the burden of showing that any given requirement must have a manifest relationship to the employment in question.”  

 As law professor Gail Heriot will observe, Title VII disparate-impact liability “makes almost everything presumptively illegal.” Employers seeking to avoid disparate-impact claims will henceforth have an incentive to discriminate on the basis of race by adopting quotas or targets that reflect the racial composition of the workforce. 

 2018—In his majority opinion in Dai v. Sessions, Ninth Circuit judge Stephen Reinhardt holds that the court is required to treat an asylum applicant’s testimony as credible in the absence of an explicit finding to the contrary by the immigration courts. Never mind, as Judge Stephen Trott points out in dissent, that the immigration judge “expose[d] the glaring factual deficiencies in Dai’s presentation” and “explain[ed] in specific detail and at length why Dai had not persuasively carried his burden of proving his case.” Over Trott’s objection, Reinhardt also holds that a 2005 federal law, the REAL ID Act, that affords an asylum applicant only a rebuttable presumption of credibility on appeal applies only to the Board of Immigration Appeals, not to petitions for review in the federal courts. 

 More than eighteen months later, in October 2019, ten judges will dissent from the Ninth Circuit’s failure to rehear the case en banc. Judge Consuelo Callahan condemns the panel’s “artful evasion of the REAL ID Act [as] nothing short of an outright arrogation of the agency’s statutory duty as trier of fact.” Judge Daniel P. Collins similarly laments that the panel’s “Simon says” rule means that “even where (as here) the record overwhelmingly confirms that the agency actually disbelieved critical portions of the applicant’s testimony, [the Ninth Circuit] will nonetheless conclusively treat that testimony as credible if the agency did not make an explicit adverse credibility determination.” Collins also explains that the “panel majority’s sharp distinction between a ‘petition for review’ and an ‘appeal’ is refuted by the very statutory provision on which the majority relies.” 

Law & the Courts

This Day in Liberal Judicial Activism—March 7

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2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.  

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy). 

2019—A Ninth Circuit panel, in an opinion by Judge A. Wallace Tashima (in Thuraissigiam v. Department of Homeland Security), rules that statutory restrictions on the ability of asylum seekers to obtain review of their detention under the federal habeas statute unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process. 

One year later, the Supreme Court will reverse the Ninth Circuit ruling (by a vote of 7 to 2). 

Law & the Courts

This Day in Liberal Judicial Activism—March 6

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1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.” 

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent. As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles: “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.” Further: “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” 

 1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process. The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg). But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation. Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit. This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy. 

Law & the Courts

This Day in Liberal Judicial Activism—March 5

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1970—A three-judge district court, consisting of Seventh Circuit judge Otto Kerner Jr. and district judges John W. Reynolds and Myron L. Gordon, rules that a Wisconsin law, dating from 1858, that prohibits abortion before quickening violates the Ninth Amendment.  

Never mind that the Ninth Amendment sets forth a mere rule of construction—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—and cannot plausibly be read as the font of any rights. Never mind, also, that the Wisconsin law merely codified the common-law rule in effect before and after the Ninth Amendment was adopted. 

2012—Despite affirming the district court’s entry of a permanent injunction barring police from imposing content-based restrictions on roadside demonstrations by anti-abortion protesters, a Fourth Circuit panel (in Lefemine v. Wideman) rules that the plaintiff protesters are somehow not “prevailing parties” eligible for an award of attorney’s fees. 

 On a petition for review, the Supreme Court will summarily reverse the Fourth Circuit panel in a per curiam opinion. 

 2020—In Al Otro Lado v. Wolf, a divided Ninth Circuit panel denies the Department of Homeland Security’s motion for a stay pending appeal of federal district judge Cynthia Bashant’s preliminary injunction that bars DHS from enforcing its “Third Party Transit Rule” against a supposed class of some 26,000 asylum seekers. Dissenting judge Daniel A. Bress marvels: 

 “In a case that does not challenge it, the district court below partially enjoined an asylum rule that the Supreme Court just months ago ordered could go into effect pending appeal. How could this even happen?” 

Law & the Courts

This Day in Liberal Judicial Activism—March 4

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Vice President Joe Biden speaks at the Democratic National Convention in Philadelphia, Pa., July 27, 2016. (Mike Segar/Reuters)

 2016—In an op-ed in the New York Times, Vice President Biden argues—or appears to argue (his prose meanders)—that the Senate has a constitutional duty to give a Supreme Court nominee a committee hearing and an up-or-down vote on the Senate floor.  

Such a claim cannot be taken seriously. The Constitution (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.  

Biden’s apparent claim is belied by his own history (as well as by the Senate’s longstanding practices for executive-branch officers and lower-court judges, whose nominations are governed by the same constitutional provision). In 2006, Biden was among the 25 Democrats who tried to filibuster the Supreme Court nomination of Samuel Alito in order to prevent an up-or-down vote on the Senate floor. And in a Senate floor statement in June 1992, Biden, as chairman of the Senate Judiciary Committee, made clear that, if a Supreme Court vacancy were to arise during the presidential campaign, his committee would not move forward on a nomination. (In his op-ed, Biden implausibly spins his 1992 statement.)  

 2020—Speaking at a pro-abortion rally outside the Supreme Court, Senate Democratic leader Chuck Schumer makes thuggish remarks that sure seem to threaten violence against Justice Gorsuch and Justice Kavanaugh if they don’t rule as he likes in abortion cases: 

 “I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.” 

Law & the Courts

This Day in Liberal Judicial Activism—March 3

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1970—“Generalizations about standing to sue are largely worthless as such.” That’s the ominous beginning of Justice William O. Douglas’s unanimous opinion in Association of Data Processing Service Organizations v. Camp, and it gets worse after that.

Douglas takes the Administrative Procedure Act’s grant of standing to a person “adversely affected or aggrieved by agency action within the meaning of a relevant statute” and expands it into a grant of standing to anyone who identifies any interest—whether “aesthetic,” “conservational,” “recreational,” “spiritual,” or economic—that is “arguably within the zone of interests to be protected by the statute … in question.”

As then-D.C. Circuit judge Antonin Scalia will observe in a 1983 law-review article, “It is difficult to exaggerate the effect which this interpretation of the ‘adversely affected or aggrieved’ portion of the APA has had upon the ability of the courts to review administrative action.”

Law & the Courts

What Dark-Money Groups Are Saying About Ketanji Brown Jackson

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From the moment President Biden announced the nomination of Judge Ketanji Brown Jackson to the Supreme Court on Friday, it was clear that the most strident interest groups on the Left, including the dark-money groups that spent over $1 billion to elect Biden and Senate Democrats, had gotten their pick. They wasted no time applauding the nomination with unequivocal endorsements, reflecting what Senate Minority Leader Mitch McConnell called “loyal and intense support for some of the very same dark-money, far-left activists who declared war on the institution of the Court itself.”

Here is a sampling of reactions to the announcement:

Sierra Club

“Send your senators a message now urging them to support and swiftly confirm Ketanji Brown Jackson to the US Supreme Court, so that her unique wisdom and perspective can be included in the important cases currently before the Court, including reproductive rights and the EPA’s ability to regulate greenhouse gasses.”

Ben Jealous, president of People for the American Way

“We are overjoyed by this nomination; now the Senate needs to move quickly to confirm her.”

Russ Feingold, president of the American Constitution Society

“We look forward to heralding Judge Jackson’s impact and contribution to the Court and to our country for years to come.”

Rakim H.D. Brooks, president of the Alliance for Justice

“As we continue to form our more perfect union, we cannot underestimate the significance of entrusting a Black woman with the responsibility of safeguarding the Constitution for all Americans into the future. We look forward to a swift confirmation process so we can soon say the words ‘Justice Ketanji Brown Jackson.’”

Rachel Laser, president and CEO of Americans United for Separation of Church and State

“We look to Judge Jackson to be a bulwark against the Court’s ultra-conservative majority, who seem set on redefining religious freedom as a sword to harm others instead of a shield to protect all of us. We deserve a justice who will defend our country’s foundational principle of separation of religion and government like our democracy depends on it—because it does.”

Wade Henderson, interim president and CEO of The Leadership Conference on Civil and Human Rights

“President Biden’s historic nomination of Judge Ketanji Brown Jackson is cause for celebration.”

Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America

“Now more than ever, we need a Supreme Court justice who understands the impact of the court’s rulings on people—particularly on reproductive and LGBTQ+ rights . . . .”

NAACP

“Her presence and voice on the Court will undoubtedly enrich its perspective and improve its decision-making.” (#BlackWomenAreSupreme announcement)

Gene Karpinski, president of the League of Conservation Voters

“We look forward to the Senate swiftly confirming Jackson while simultaneously addressing massive challenges and transformational opportunities for our environment, democracy, and lower courts.”

Patrick Gaspard, president and CEO of the Center for American Progress

“Her nomination comes at a critical time, as a right-wing majority has hijacked the court to gut federal voting rights protections, undermine labor unions, and very likely overturn abortion rights that have stood for half a century. This extremist majority is also poised to end affirmative action in college admissions, limit what the federal government can do to curb climate change, and further erode the separation between church and state. It’s time to end this conservative judicial activism run amuck.” 

Sarah Lipton-Lubet, executive director of Take Back the Court Action Fund

“With reproductive rights, climate action, and the future of our democracy all on the line, there is no better time for Judge Jackson to make her voice heard on the Court.”

Black Lives Matter

“[F]or decades, we’ve been forced to face the consequences of the decisions made by a mostly all-white, male Supreme Court. . . . White supremacy never shies away—but winning despite a system that is rigged against us is what we’ve always done. We are calling for a swift confirmation process in the Senate.”

Cecile Richards, co-chair of American Bridge

“Bursting with tears of joy! Here’s to soon to be SCOTUS Justice Ketanji Brown Jackson”

Mini Timmaraju, president of NARAL Pro-Choice America

“This is a phenomenal and overdue milestone. . . . Judge Jackson . . . has a demonstrated record of defending and upholding our constitutional rights and fundamental freedoms—including reproductive freedom. We are confident that she will be a voice for justice, equity, and freedom on the Court in the decades to come. We urge the Senate to swiftly confirm Judge Jackson.”

Leah Greenberg, co-executive director of Indivisible

“We’re fired up and ready to see her make history.” 

Priorities USA

“Judge Jackson will be an invaluable voice on our highest court.”

Brian Fallon, executive director of Demand Justice

“Judge Ketanji Brown Jackson is a slam-dunk pick for the Supreme Court.”

Law & the Courts

Utah Events

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I will be in Utah this Friday to speak to the Salt Lake City lawyers chapter of the Federalist Society on President Biden’s nomination of Ketanji Brown Jackson. Next Tuesday, I will address the same topic for the BYU student chapter.

I look forward to some wonderful skiing during the intervening long weekend.

Law & the Courts

KBJ and the “‘Working Mother’ Thing”

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Ketanji Brown Jackson’s professional career took a bumpy direction in the immediate aftermath of her clerkship with Justice Breyer. She spent 18 months at a law firm in Boston before moving to “a tiny firm that specialized in the negotiated resolution of mass tort claims,” and then, 18 months later, took a staff-lawyer position with the U.S. Sentencing Commission. After less than two years in that job, she joined a federal public defender’s office, and two years later—eleven years out of law school—she began a three-year stint “of counsel,” rather than as partner, with a law firm.

Jackson herself (according to this Wall Street Journal article) has lightheartedly referred to her decade as a “professional vagabond,” and her frequent job changes on a flat or even downward trajectory would be seen by many as yellow flags. So I’m especially pleased to discover and highlight Jackson’s admirable commitment to figure out what she called “the ‘working mother’ thing”—how, that is, to find a job that she found rewarding and to “have enough flexibility that I actually get to spend some time with my wonderful husband and girls.” Here’s her full entry from the Harvard Law School Class of 1996’s 10-year report, published in the spring of 2006:

(I’ll add that I think it’s incumbent on husbands/fathers as well as wives/mothers to work to strike a sound work/family balance.)

I find it unfortunate that Jackson’s courage to do “the ‘working mother’ thing” seems to have received little or no attention. Instead, her supporters are much more intent on exaggerating her (ample but hardly overwhelming) qualifications.

Take, for example, Jackson’s two years “as an appellate specialist” in the federal public defender’s office. From most of her supporters, you’d think that these two years were somehow transformational and uniquely qualify her to be a Supreme Court justice. But as criminal-defense lawyer Scott Greenfield, who supports Jackson’s nomination, observes (emphasis added):

[Jackson’s] supporters make much of her having spent a little over two years working as a federal appellate defender. Not since Thurgood Marshall has there been anyone on SCOTUS with any criminal defense background, and there’s never been a former public defender on the Supreme Court. Breadth of experience is good, right? But as experience goes, this is fairly negligible. Indeed, it’s possible that she will be the “criminal defense expert” on the Court like Harry Blackmun was the “medical expert” because he had represented the Mayo Clinic, except he was no medical expert.

I have severe doubts whether Judge Jackson’s extremely brief foray as a federal appellate defender makes her much [of] a criminal defense expert. If she had 20 years in the trenches, that would be one thing. She barely had enough time to make a dent in her desk chair, and there is nothing to suggest she has any clue what it’s like to walk into state court arraignments after three minutes in lockup. Yes, this is experience that’s sorely needed on the Supreme Court, which makes monumental decisions about criminal law while indulging in a theoretical fantasy about how the world functions on the street and in the trenches. It’s unclear (to me, at least) that she’s got the experience to bring reality into the conference room. You know the old saying, “a little knowledge is dangerous”?

Law & the Courts

This Day in Liberal Judicial Activism—March 1

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A police officer walks in front of the United States Supreme Court Building in Washington, D.C., May 13, 2021. (Andrew Kelly/Reuters)

1954—The Senate, by voice vote, confirms President Eisenhower’s nomination of former California governor Earl Warren to serve as Chief Justice. Warren was already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953.

Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. But to be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.

2005—Relying on “international opinion,” the Supreme Court, by a vote of 5 to 4, overturns its own precedent and rules in Roper v. Simmons that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. Roper starkly illustrates how the same justices who bow to the views of foreigners are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country. Here’s a summary:

When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could ‘get away with it’ because they were minors. In the middle of the night, Simmons and a friend broke into a woman’s home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a state park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned an unspeakably cruel death in the waters below.

Simmons confessed to the murder. At the death-penalty phase of his trial, the judge instructed the jurors that they could consider Simmons’s age as a mitigating factor, and the defense relied heavily on that factor. The jury recommended, and the trial judge imposed, the death penalty.

In his majority opinion (joined by Justices Stevens, Souter, Ginsburg, and Breyer), Justice Kennedy aims to discern “the evolving standards of decency that mark the progress of a maturing society.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. In dissent, Scalia counters that it makes no sense to count states that have no death penalty: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”

Kennedy then finds “respected and significant confirmation” for his ruling in “the overwhelming weight of international opinion against the juvenile death penalty.” According to Kennedy, the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child—which contains an express prohibition on capital punishment for crimes committed by juveniles—supports his conclusion that the juvenile death penalty is unconstitutional. But as Justice Scalia observes in dissent, “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States,” the United States’ non-ratification of Article 37 undercuts the majority’s position. Scalia also points out that the justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion.

Law & the Courts

My CNN Piece on KBJ Nomination

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I was one of the contributors to an instant CNN symposium last Friday on the nomination of Ketanji Brown Jackson to the Supreme Court. Here’s my short piece:

In selecting Judge Ketanji Brown Jackson to fill Stephen Breyer’s seat on the Supreme Court, President Joe Biden has fulfilled his campaign pledge to nominate the first female African American justice.

Biden selected Jackson for additional reasons, of course. Jackson has impressive credentials, and Biden likely feels confident that Jackson will implement the results-oriented, make-it-up-as-you-go-along “living constitutionalism” that progressives espouse.

Biden has already demonstrated that differences in judicial philosophy justify efforts to oppose the confirmation of the first female African American justice. Back in 2005, he even threatened to filibuster President George W. Bush’s possible nomination of DC Circuit judge Janice Rogers Brown to the Supreme Court.

The left is likely to make accusations of racism and sexism in response to any concerns expressed over Jackson’s vision of the judicial role. But if Senate Republicans assess Jackson on the basis of judicial philosophy, and don’t succumb to political pressure because of her race and sex, they will responsibly fulfill their constitutional duty to advise and consent.

The Democrats have control of the Senate, albeit slim control, so Jackson will almost certainly be confirmed. The process will probably be rather quiet. But Senate Republicans should use the opportunity to emphasize that judging is a craft that is distinct from policymaking. They can reinforce the message that the duty of a Supreme Court justice is to discern and apply the meaning that constitutional and statutory provisions bore when they were adopted, not to rewrite those provisions to advance an ideological agenda.

Law & the Courts

Ninth Circuit Panel Divides Over Extension of Bivens Remedy

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In a ruling today in Hoffman v. Preston, a Ninth Circuit panel majority approved what it called a “very modest extension” of the judicially invented Bivens damages remedy against federal officers for constitutional violations. Specifically, the majority held that a prisoner could pursue an Eighth Amendment damages action against a federal prison guard who allegedly labeled him a snitch to other prisoners, offered them a bounty to assault him, and failed to protect him from an assault.

Judge Carlos Bea vigorously dissented. An excerpt:

The Supreme Court has made crystal clear that the days of freely implying damages remedies against individual federal officials under Bivens are at an end. “The Constitution grants legislative power to Congress,” and so “a federal court’s authority to recognize a damages remedy must rest at bottom on a statute enacted by Congress.” Hernandez v. Mesa, 140 S. Ct. 735, 741–42 (2020). The Court has recognized only three exceptions to this general rule: damages remedies may be implied for the specific claims at issue in Bivens, Davis, and Carlson. But these exceptions are limited to the factual contexts in which they arose, and the lower courts cannot extend them if any “special factors counsel[] hesitation” before intruding on the separation of powers and acting in the absence of statutory authority. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017).

This should have been a straightforward affirmance of the district court’s judgment. We are asked to decide whether a prisoner (Hoffman) may seek damages against a federal prison guard (Preston) who, the prisoner claims, intentionally and deliberately instigated other prisoners to beat him in retaliation for the prisoner’s suspected snitching out of the prison guards’ theft of prison food by offering to pay other prisoners to beat him. Is that a Bivens eligible violation of the Eighth Amendment’s prohibition of cruel and unusual punishment? The answer is no. Congress has never enacted a damages remedy against federal prison officials who act as in the allegations in this case, which amount to an Eighth Amendment excessive force claim; the Supreme Court has never recognized a remedy for such actions under Bivens, and at least three special factors bar the narrow gate towards extending the Bivens remedy to this new context.

Law & the Courts

Challenge in Supreme Court to Pennsylvania Supreme Court’s Election Map

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The Elections Clause of the Constitution (Article I, section 4, clause 1) states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.” (Emphasis added.)

Notwithstanding the Elections Clause, the Pennsylvania supreme court last Wednesday, by a vote of 4 to 3, ordered state election officials to implement a map for the state’s 2022 congressional elections that the Pennsylvania legislature had never adopted—a map, as it happens, backed by Democratic National Committee lawyer Marc Elias. What’s more, the court did so even though the legislature had not authorized the state judiciary to participate in the congressional redistricting process. The state supreme court further ordered state election officials to disregard the primary calendar that the legislature had enacted and to abide by a schedule of the court’s creation, a schedule that delays and compresses the time period in which candidates may circulate and file nomination petitions.

Plaintiffs challenging the state supreme court’s action have filed in the U.S. Supreme Court an application for injunctive relief (which they invite the Court to regard, in the alternative, as a statement of the Court’s appellate jurisdiction over the matter). The Pennsylvania redistricting saga, along with an accompanying application from North Carolina that challenges the North Carolina judiciary’s meddling in congressional redistricting decisions, presents an ideal opportunity for the justices to resolve the fundamental and recurring question of the authority that the Elections Clause vests in state legislatures.

Justice Alito has requested a response to the application by close of business on March 3.

Law & the Courts

This Day in Liberal Judicial Activism—Feb. 28 and 29

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Feb. 28    2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”

Non-Leap Year bonus:

Feb. 29    1892—“It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers.” A unanimous Supreme Court declares this spirit-of-the-law canon of nontextualism in Church of the Holy Trinity v. United States, as it holds that a federal law barring anyone from assisting or encouraging the importation of an alien by entering into a contract in advance with the alien “to perform labor or service of any kind in the United States” did not apply to a contract by which a church in New York contracted with E. Walpole Warren, an alien residing in England, to become its pastor.

The Court acknowledges that the law, in spelling out specific exceptions for professional actors, artists, lecturers, singers, and domestic servants, “strengthens the idea that every other kind of labor and service was intended to be reached.” But its examination of legislative history leads it to assert that “the intent of Congress was simply to stay the influx of … cheap unskilled labor.”

1972—A divided three-judge district court rules (in YWCA v. Kugler) that New Jersey’s abortion statute is unconstitutionally vague and violates the constitutional privacy rights of physicians and of their patients seeking abortion.

In dissent, Judge Leonard I. Garth explains that the statute, as authoritatively interpreted by the New Jersey supreme court, is indistinguishable from the statute that the U.S. Supreme Court held to be “constitutionally definite” (i.e., not unduly vague) in its recent decision in United States v. Vuitch (1971). He further concludes that the “interests of family privacy or convenience … cannot be elevated over the right to live” and that it is therefore permissible for a state, in pursuit of its “compelling interest in the preservation of life, including fetal life,” to bar abortion.

Law & the Courts

This Day in Liberal Judicial Activism—February 27

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1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman.

Law & the Courts

This Day in Liberal Judicial Activism—February 26

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2018—By a 4-3 divide, the California supreme court holds (in People v. Contreras) that very long sentences imposed on two juvenile offenders for brutal rapes violate the Eighth Amendment of the federal Constitution. According to Goodwin Liu, the justice who wrote the majority opinion, the two sentences (one of 50 years to life, the other of 58 years to life) are “functionally equivalent” to sentences of life without parole and thus are impermissible under the U.S. Supreme Court’s 2010 ruling in Graham v. Florida.

In dissent, chief justice Cantil-Sakauye objects that the majority misreads Graham by extending it beyond actual sentences of life without parole to sentences that are “qualitatively different.” She further points out that, contrary to Liu’s assumption, both offenders will be eligible for parole no later than age 60.

Law & the Courts

Biden and KBJ

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President Biden obviously has a lot of things on his mind, but I was surprised that his presentation of Ketanji Brown Jackson wasn’t more powerful. I was especially surprised that, in fulfilling his campaign promise, he didn’t tout that KBJ is the first African American woman nominated to the Supreme Court. At best he made the point obliquely, with statements like these:

I believe it’s time that we have a court that reflects the full talents and greatness of our nation…

[A White House display celebrating Black History Month] includes a judicial oath of office taken and signed by Justice [Thurgood] Marshall himself, an oath that will be once again administered to a distinguished American [who] will help break [write?] the next chapter in the journey of America.

(I’m using an MSNBC transcript.)

By contrast, Judge Jackson was, as I expected, very appealing, even if (or, rather, because) her opening might make lefty secularists and fans of the 1619 Project shudder:

I must begin these very brief remarks by thanking God for delivering me to this point in my professional journey. My life has been blessed beyond measure, and I do know that one can only come this far by faith. Among my many blessings, and indeed the very first, is the fact that I was born in this great country. The United States of America is the greatest beacon of hope and democracy the world has ever known.

Law & the Courts

Women’s Health Protection Act: Unconstitutional and More Radical Than Roe v. Wade

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Pro-life and pro-choice activists demonstrate outside the Supreme Court building, ahead of arguments in the Mississippi abortion case Dobbs v. Jackson Women’s Health, in Washington, D.C., December 1, 2021. (Evelyn Hockstein/Reuters)

The U.S. Senate will next week take up S.1975, the so-called Women’s Health Protection Act (WHPA). Its backers want everyone to believe that it will simply protect by statute the right to abortion that the Supreme Court defined in its Roe v. Wade decision. They know this is a lie, and the rest of the American people need to know it too.

The strategy behind the WHPA seeks to hide, censor, and avoid the fact that abortion is designed to kill a human being. This isn’t the Middle Ages, after all. We all know that human reproduction produces a new, living human being. Everyone reading this, as well as its author, started that way and has been a living human being ever since. The debate, therefore, is not about choice in general but whether this particular choice, killing a human being before birth, should be available.

In Roe v. Wade, the Supreme Court said it should because of the “detriment” that prohibiting abortion “would impose upon the pregnant woman.” That, however, is a policy decision that courts do not have authority to make. The Supreme Court, therefore, said that the 14th Amendment protects a “right to privacy” that “is broad enough” to include abortion. Since the Court made no attempt to actually interpret the 14th Amendment, though, that did not fool anyone, and no constitutional scholar of any ideological stripe even tries to defend it. But that’s where we have been for the past five decades.

Roe v. Wade got the job done, making legislative efforts to protect life before birth all but impossible, a policy more permissive than all but ones in seven other nations. Yet the Court now has before it a case, Dobbs v. Jackson Women’s Health Organization, in which it may finally acknowledge that Roe v. Wade is an indefensible distortion of the Constitution and overrule it. That would once again put state and local governments in primary charge of abortion policy.

This is where the WHPA comes in by attempting to prevent those governments from placing any kind of limitation or restriction of any kind on abortion. The bill prohibits any legislature anywhere from enacting eleven specific categories of abortion regulation, as well as any that are “similar” to them. This legislative ban covers anything that is “reasonably likely” to “delay . . . some patients” from getting an abortion, to “indirectly” increase the cost of doing so, or even necessitating a trip to the doctor’s office.

The WHPA’s two most glaring defects are that Congress has no authority to dictate how state and local legislatures may handle abortion and, even if it did, the WHPA is far more radical than even Roe v. Wade itself.

The WHPA refers repeatedly to the “constitutional right to terminate a pregnancy.” Congress does have authority to “enforce, by appropriate legislation, the provisions” of the 14th Amendment. Those provisions, of course, say nothing about privacy or abortion and, if the Supreme Court overrules Roe v. Wade, no one will be able even to pretend otherwise. There will nothing for Congress to enforce.

The WHPA also claims that Congress’s power to regulate interstate commerce allows it to control state and local abortion legislation. The bill’s findings state that “to provide abortion services, health care providers engage in interstate commerce.” That was the constitutional basis for Congress enacting the Partial-Birth Abortion Ban Act in 2003. The WHPA, however, would regulate not abortion or abortion services, but how state legislatures regulate them. That distinction makes all the constitutional difference.

In addition to Congress lacking any constitutional authority to enact it, the WHPA would be even more radical than either Roe v. Wade or the bill’s own legislative predecessors.

Roe v. Wade, for example, recognized that “[t]he pregnant woman cannot be isolated in her privacy.” The “developing young in the human uterus” makes abortion “inherently different” from other privacy rights. In fact, the Court said, abortion may not have a “close relationship” to those other rights at all. The child in the womb, in other words, changes everything.

In Roe, the Supreme Court referred to the unborn “child,” “prenatal life,” “fetus,” “embryo,” and “unborn children.” These were not simply casual or random references. The state, Justice Harry Blackmun wrote, has an “important and legitimate interest” in protecting human beings before birth. Only four years after Roe, the Supreme Court held that the right to abortion “implies no limitation on the authority of a State to make a value judgment favoring childbirth over abortion, and to implement that judgment” through certain kinds of legislation.

The WHPA repudiates, rather than codifies, that aspect of Roe v. Wade. The bill, in fact, tries mightily to erase, avoid, or deny any suggestion, hint, or whisper that a second human being exists at all. It even drops the definition of “abortion” found in previous versions of the WHPA because that definition referred to “a live birth” (of what?) and a “dead fetus” (that must once have been alive). The WHPA’s proponents apparently believe that abortion focuses too much, even in death, on the unborn child. Instead, the current WHPA refers only to “abortion services” which, it claims, “are essential health care” and, therefore, focus exclusively on the pregnant woman.

Well, not quite. Previous versions of the WHPA use “woman” or “women” dozens of times. The current version of the bill, however, replaces those words with “person” and “people.” Its findings explain that it would “protect all people with the capacity for pregnancy — cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others.”

The bill repeatedly targets what it calls “abortion-specific restrictions,” prohibiting any regulation or limitation that is not also applied to “medically comparable procedures.” As the Supreme Court recognized in Roe, however, abortion is “inherently different.” The presence, and intentional death, of the unborn child means there are no medically comparable procedures.

The WHPA would prohibit legislation that the Supreme Court has upheld. In Planned Parenthood v. Casey, for example, the Court upheld a parental consent requirement for minors seeking abortion, recognizing the state’s “important and legitimate interest” in the welfare of minors. The WHPA, in contrast, lists “parental involvement laws (notification and consent)” among measures that “complicat[e] access to . . . abortion services.”

The current WPHA reaches even father than the versions introduced in the previous four Congresses. Those versions, for example, defined the “states” subject to Congress’ control as “each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each territory or possession of the United States.” The current WHPA, however, adds “and any subdivision of any of the foregoing.”

Under the WHPA, prohibiting a state regulation requires nothing more than a “reasonable likelihood” that it might “indirectly” deter “some patients” from getting an abortion. Defending that regulation, however, requires “clear and convincing evidence” that the regulation “significantly advances the safety of abortion services” and that this goal “cannot be advanced by a less restrictive alternative measure or action.” How’s that for heads-the-pregnant-person-wins-tails-the baby-loses?

The WHPA “applies to the law of the Federal Government, and each State government [including ‘any subdivision’] . . . whether adopted before or after the date of enactment of this Act.” If that means what it says, the WHPA would not only prohibit any legislature, at any level of government, from doing anything that might make abortion less likely in the future, but those legislatures would be required to repeal any such laws or regulations already on the books.

When all is said and done, the WHPA would, retroactively and prospectively, prevent any government, at any level, from “enact[ing] or enforce[ing] any law, rule, regulation, standard, or other provision having the force and effect of law that conflicts” with any WHPA provision. No one with any knowledge of our system of government, let alone senators who have sworn to uphold and defend the Constitution, could think that Congress has such draconian authority.

In a 1983 essay titled “Abortion and the Conscience of the Nation,” President Ronald Reagan wrote that “[w]e cannot diminish the value of one category of human life — the unborn — without diminishing the value of all human life.” The “real question,” he wrote, “is not when human life begins, but, what is the value of human life?” The Supreme Court’s answer in Roe v. Wade was that human life has almost no value before birth. The WHPA scoffs even at that, denying that human life exists at all before birth. Senators will give their answer when they take up the bill next week.

Law & the Courts

This Day in Liberal Judicial Activism—February 25

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1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

2019—Ninth Circuit judge Stephen Reinhardt probably holds the record for the most unanimous reversals by the Supreme Court, so it’s only fitting that he somehow managed to rack up another one in an opinion issued in his name eleven days after his death.

“Federal judges are appointed for life, not for eternity.” That’s the punchline in the Supreme Court’s per curiam ruling in Yovino v. Rizo. The Court vacates the Ninth Circuit’s en banc ruling issued on April 9, 2018. Reinhardt died on March 29, 2018, but the Ninth Circuit listed him as the author of the six-judge majority opinion.

Law & the Courts

Very Strong Signal that Biden Has Selected KBJ

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[I’m going to leave this post up, but on further review and inquiry I now believe that the items below don’t actually signal anything.]

Kudos to legal journalist Katie Barlow for spotting a clear signal that President Biden has informed D.C. Circuit judge Ketanji Brown Jackson that he will nominate her to replace Justice Stephen Breyer, for whom she clerked just over two decades ago. As Barlow explains, the D.C. Circuit’s usual practice is to release opinions on Tuesdays and Fridays. But it released an opinion today (Thursday) in a case in which Jackson sat on the panel—a case in which there is no evident reason for expediting the opinion.

Why does this signal anything? Well, the D.C. Circuit has apparently adopted a practice in which a judge who is to be nominated to the Supreme Court stops taking part in rulings immediately upon the announcement of the nomination. As Barlow points out, on a Monday back in 2018, some hours before President Trump announced his nomination of Brett Kavanaugh, the D.C. Circuit issued an opinion in a case in which Brett Kavanaugh was on the panel.

The plan, it would seem, was for the White House to announce Jackson’s nomination today. (Otherwise, the opinion could have issued in the ordinary course tomorrow.) But the Ukraine crisis might have set back the announcement. In any event, look for Biden to announce Jackson’s nomination very soon.

For what it’s worth, I’ve been predicting all along that Jackson would be the nominee.

Update: Here are two more decisions just released today in which Jackson is on the panel.

Law & the Courts

The Supreme Court’s Opportunity to Rein in the EPA and Defend the Rule of Law

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On Monday, the Supreme Court will hear oral argument in West Virginia v. EPA, a case that poses significant questions about statutory interpretation, the power of federal agencies, and federalism.

At issue is the Environmental Protection Agency’s sweeping claim of regulatory authority under the Clean Air Act—essentially to do whatever it wanted to reduce or eliminate carbon from any part of the American economy. In 2015, this power grab took the form of the EPA’s Clean Power Plan (CPP), adopted to further President Barack Obama’s directive to “lead[] global efforts to address climate change” and thus “do what Congress wouldn’t.” The CPP imposed emission reduction mandates that were impossible for existing coal plants to meet due to existing limitations on technology, exorbitant costs, or the severe reduction of usage that would be required. That effectively would compel production to shift from coal plants to those that employed natural gas or renewable resources.

States would then be expected to develop plans to meet the emission reductions. States that did not develop a plan that met the EPA’s approval would be subject to the agency’s own federal implementation plan. One way or another, a state like West Virginia that wanted no part of this scheme would find itself forced into a California-type energy grid, complete with California-type shortages and energy prices. For some liberals, such shortages are a feature, not a bug of the system—part of the package entailed by the forced reduction of consumption.

West Virginia led a coalition of states and groups in a challenge of the CPP in court. As the litigation proceeded, the Supreme Court in 2016 stayed the rule by a 5–4 vote, pending the disposition of appellate review. Justice Scalia was in the majority for what turned out to be one of his final acts on the Court. That seemed to signal the challengers’ ultimate success on the merits. Before the case made its way out of the D.C. Circuit and back to the Supreme Court, Donald Trump became president. The case was held in abeyance and ultimately dismissed.

In 2019, the Trump administration repealed the CPP and replaced it with a new Affordable Clean Energy (ACE) rule. That was challenged as not stringent enough by numerous states and groups, many of which had defended the 2015 rule, while there was much overlap between other states and groups that defended the 2019 rule after having opposed the 2015 rule.

In 2021, a panel of the D.C. Circuit invalidated the CPP repeal as arbitrary and capricious and held the EPA had very broad regulatory authority that supported the earlier rule. The court stayed its mandate to allow the EPA to promulgate a new regulation. Judge Justin Walker dissented as to the EPA’s authority to issue the CPP.

On appeal to the Supreme Court, West Virginia v. EPA has been consolidated with three other cases, presenting the justices with a range of questions about the scope of the EPA’s authority from its asserted power to issue the CPP to its repeal under the ACE. The Court decided to grant review despite the request not to by the Biden administration, which stated its intent to issue a new rule. That, following the Court’s signaled skepticism in 2016, is an encouraging sign that a majority of justices are ready to stop one of the most brazen overreaches of administrative power in our time.

Section 111(d) of the Clean Air Act, the principal source of the EPA’s claimed authority to enact the CPP, had never previously been invoked to adopt such a regulation. The text, as amended in 1990, referred to “standards of performance for any existing source” covered by that section, and it prohibited the regulation of pollutants “emitted from a source category which is regulated under section 112.” Coal-fired power plants are among those categories already covered by Section 112 and thus excluded. In any event, the statute broadly refers to measures to determine an achievable emission limitation at particular facilities, not shifting to alternative power sources or otherwise transforming the power industry writ large.

Moreover, the notion that the EPA contains such sweeping power by implication violates the “major questions doctrine,” which requires Congress to speak clearly when assigning decisions of vast significance to agencies. Even if Section 111(d) were somehow held to implicitly justify the EPA’s extravagant claims, it includes barely any standards to govern the agency’s use of its power, rendering it an unconstitutional delegation of legislative power.

As Justice Gorsuch explained in his dissent in Gundy v. United States (2019),

enforcing the separation of powers isn’t about protecting institutional prerogatives or governmental turf. It’s about respecting the people’s sovereign choice to vest the legislative power in Congress alone. And it’s about safeguarding a structure designed to protect their liberties, minority rights, fair notice, and the rule of law.

West Virginia’s cert petition asserts, “At bottom, this case will determine the overall balance of power—legislative versus executive, and federal verses state—for one of the most significant public policy issues of our day.” By reining in the EPA, the Court can score a significant victory for the rule of law.

Law & the Courts

This Day in Liberal Judicial Activism—February 24

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(Kuzma/iStock/Getty Images Plus)

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

2016—At a mock hearing meant to pressure Senate Republicans to confirm whomever President Obama will nominate to the Supreme Court vacancy created by Justice Scalia’s death, law professor Geoffrey Stone panders to Senate Democrats by purporting to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee.

This is the same Stone who in 2006 urged the Senate to defeat the Alito nomination. Back then, Stone emphasized that “members of the Senate are free to reject nominees if they disagree with [the] views” the nominating president “wants represented on the Court.” Stone further argued: “If the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president’s choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work.” (Stone’s emphasis.)

2017—Playing pronoun police, the Supreme Court’s Office of the Clerk chastises two amici for using a feminine pronoun (“G.G., by her next friend and mother, Deirdre Grimm”) to refer to the respondent in the caption of their briefs. Never mind that the respondent is a biological female and that a central question in the case is whether she must nonetheless be treated as though she were male. Never mind, further, that the rule that the clerk’s office alleges amici to have violated doesn’t remotely say what the clerk’s office claims the rule to mean (namely, that “parties generally should use the case title reflected on the Court’s docket”) and that the clerk’s office hasn’t previously enforced such a meaning.

2020—Sometimes ugly and ungrammatical locutions give the game away. In a divided panel ruling (in Allen v. Ives), Ninth Circuit judge William Fletcher grants relief to a habeas petitioner who, exploiting the “actual innocence” exception to a bar on habeas relief, contends that he is (in Fletcher’s summary) “‘actually innocent’ of his sentence as a career offender.” (Emphasis added.)

Months later, the Ninth Circuit will deny rehearing en banc over the dissent of twelve judges.

2020—“People of all genders … can become pregnant.” That pearl of politically correct obtuseness is buried in Judge Richard Paez’s dissent from an en banc Ninth Circuit ruling (in California v. Azar) holding that HHS regulations implementing Title X of the Public Health Service Act are lawful.

Yes, Judge Paez, women who don’t identify as female can still get pregnant—because they in fact are women.

Law & the Courts

KBJ Backer Plays Race Card Against Leondra Kruger

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Writing for The Hill, African American civil-rights lawyer Ben Crump argues that President Biden should nominate Ketanji Brown Jackson to the Supreme Court. A central part of Crump’s argument is that Biden’s nominee “must represent African Americans in a way that has cultural competency, forcefulness and instills deep pride” and must be “rooted in an experience that so many of us share.”

Crump is obviously taking a swipe at Leondra Kruger. As the New York Times states in this article, Kruger is the “daughter of pediatricians — her father white and Jewish, her mother Black and Jamaican-born” — and “grew up in South Pasadena, a leafy Los Angeles suburb so old-fashioned that the movie ‘Back to the Future’ was filmed there.” As I noted two weeks ago, her background of apparent privilege doesn’t fit the Left’s favored narrative.

It’s far less clear why Crump believes that Jackson fares better on his metric than Michelle Childs does.

Law & the Courts

‘Undaunted, the Instant Candidate Struggles Valiantly to be Clear Beyond Cavil’

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I have spent much of the past week wading and skimming through a database of nearly 500 district-court opinions—482, to be precise—by Judge Ketanji Brown Jackson that my research assistant compiled for me. On the whole, my review has left me with a somewhat more favorable impression of Jackson’s writing ability than I had previously had. That said, it has also strongly confirmed my judgment that Jackson’s prose suffers badly from clunkiness.

Here are some KBJisms:

1. Jackson peppers her opinions with gratuitous instances of the word instant—as in “the instant complaint,” “the instant case,” “the instant action.” Take, for example, this opinion in which she uses instant an amazing twenty times, including in these passages (cleaned up):

The instant amended complaint, which Smith has filed pro se against the United States and 19 federal judges, marks the eleventh lawsuit that Smith has filed stemming from the denial of his admission to the Colorado bar. In the instant 277–page pleading, Smith generally maintains that the judges involved in his latest lawsuit, like those who decided all of his previous actions, have violated the Constitution and international law, and are therefore subject to criminal indictment and removal from the federal bench.

Accordingly, Defendants’ motions to dismiss will be granted and the instant complaint will be dismissed with prejudice. Additionally, in light of the fact that Smith has now initiated eleven separate actions seeking relief for the denial of his bar license, Smith will be enjoined from filing any subsequent actions in the U.S. District Court for the District of Columbia arising out of the same allegations in the instant amended complaint without first seeking leave of court.

After filing the instant complaint, and prior to the Defendants’ responsive pleadings, Smith filed a twelfth action, which came before this Court as a related case. As Smith made clear in that complaint, the allegations in Smith XII were “quite literally identical” to those in the instant case, and Smith conceded that the Smith XII complaint was a “duplicative filing” meant to keep his claims alive in the event the instant action was dismissed.

Jackson uses the word instant nearly 2000 times across this database, for an average of around five times an opinion.

2. Jackson uses the phrase “Before this Court at present” (or its slight variant “Before the Court at present”) nearly 300 times.

3. Jackson tries to add verve to her prose by characterizing how the parties present their argument. A favorite tic of hers (repeated some 55 times) is to call a party “undaunted”:

She likewise likes to contend that a party “struggles mightily” or “struggles valiantly”:

4. Another stock phrase of KBJ’s is “clear beyond cavil.” There is nothing wrong with that phrase, but she uses it 149 times, and it becomes tiresome around the third or fourth time you encounter it.

To be clear, I am certainly not contending that the quality of Judge Jackson’s prose is outside the range of what has been or ought to be acceptable for a Supreme Court candidate. I agree with legal-writing guru Ross Guberman’s assessment that Leondra Kruger is a much better writer than Jackson. But it’s up to President Biden to decide whether and how much that matters.

Law & the Courts

This Day in Liberal Judicial Activism—February 23

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Supreme Court nominee Elena Kagan meets with Sen. Al Franken (D., Minn.) on Capitol Hill in Washington, May 18, 2010. (Jim Young/Reuters)

1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat.

2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:

I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.

Law & the Courts

This Day in Liberal Judicial Activism—February 22

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(Zolnierek/Getty Images)

1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

2020—In a front-page article in the Los Angeles Times, several “veteran” Democratic appointees on the Ninth Circuit launch anonymous attacks on the supposed lack of collegiality of some of their new colleagues appointed by President Trump. Gee, how collegial of them to do so. And how strange that judges who “refused to be quoted by name” would defend their unattributed attacks by “saying they were not authorized to speak about what goes on behind the scenes.” If they’re not authorized to speak in their own names, on what possible basis do they think that they’re authorized to give anonymous quotes?

Judge Daniel P. Collins is a particular target of the anonymous critics, who complain that he dared to call the panel decision in United States v. Cooley “deeply flawed,” “plagued” by legal error and marked by “confused analysis.” This complaint will prove even more ridiculous a year later, when the Supreme Court, in a brief unanimous opinion written by Justice Breyer, will smack down the panel decision and fully vindicate Collins.

Law & the Courts

This Day in Liberal Judicial Activism—February 21

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1996—In Fierro v. Gomez, a Ninth Circuit panel, in an opinion by Judge Harry Pregerson, rules that California’s method of execution by lethal gas violates the Eighth Amendment.

2017—Defying the Supreme Court’s landmark Second Amendment ruling in Heller v. District of Columbia (2008), the en banc Fourth Circuit rules by a 10-to-4 vote (in Kolbe v. Hogan) that Maryland’s ban on so-called “assault weapons” and high-capacity magazines is constitutionally permissible. (Read Charles Cooke and David French for extensive critiques of the Fourth Circuit’s evasions and errors.)

Law & the Courts

This Day in Liberal Judicial Activism—February 20

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1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)

Law & the Courts

This Day in Liberal Judicial Activism—February 19

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2020—An Eleventh Circuit panel rules (in Jones v. Governor of Florida) that Florida law that conditions the restoration of a felon’s voting rights on his paying all fines, fees, and restitution imposed as part of his sentence violates that felon’s rights under the Equal Protection Clause if the felon is “genuinely unable to pay those obligations.” The panel somehow casts Florida’s system of re-enfranchisement as “punish[ing] a class of felons based only on their wealth,” when Florida is instead requiring that felons satisfy the terms of their sentences before their voting rights are restored.

In September 2020, the en banc Eleventh Circuit will overturn this ruling (by a 6-4 vote).

Law & the Courts

This Day in Liberal Judicial Activism—February 18

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1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

1981—By a vote of 6 to 1, the Massachusetts supreme court rules (in Moe v. Secretary of Administration) that state statutes that restrict the use of state Medicaid funds for abortions violate the state Constitution.

Law & the Courts

Contra Hadley Arkes (Again) on Overturning Roe

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In this newly published article in First Things, Hadley Arkes contemplates the prospect that the Supreme Court is on the verge of overturning Roe v. Wade and restoring the authority of states to protect the lives of unborn human beings. Such a ruling in Dobbs v. Jackson Women’s Health Organization would be a glorious victory for both the conservative legal movement and the pro-life cause—a victory that nearly everyone saw as a pipedream not very long ago. But Arkes is in no mood for celebration.

Arkes’s core complaint is that the constitutional case that conservative lawyers and judges typically make against Roe does not rest on moral arguments against abortion. His observation is correct, but I don’t see how it fairly gives rise to a complaint.

Constitutional originalism maintains that the duty of a Supreme Court justice is to discern and apply the original public meaning of the constitutional provision at issue, not to impose one’s own moral convictions. Constitutional provisions, of course, might embed moral understandings, and when they do, justices should interpret those provisions consistent with those understandings. But that’s very different from thinking it proper for justices to read their own moral convictions into the Constitution.

Part of the broader appeal of the case against Roe is precisely that it ought to be embraced even by those (like Robert Bork at the time of his nomination to the Supreme Court) who support permissive abortion laws. Conversely, if an overturning of Roe rested on pro-life premises, it would be much less likely to be accepted as a sound legal ruling.

Arkes sketches two competing passages that the Court might craft in returning abortion policy to the states. In his preferred alternative, the Court would (1) recite the “settled findings of embryology” that the “child in the womb has been human from its first moments [and is] a distinct life,” and (2) instruct “the states to weigh the question of when it would be justified to take this human life, with the same standards of judgment that enter into gauging the justification for the taking of any other human life.”

Arkes is correct on the “settled findings of embryology,” and I find it bizarre that majorities in Roe and Planned Parenthood v. Casey have denied or obscured basic biological realities. It’s not clear to me, though, that the Court in Dobbs would have any reason to invoke such findings, instead of simply deferring to the Mississippi legislature’s findings (under rational-basis review).

Far more dubious is the instruction that Arkes proposes that the Court give the states. That instruction rests on the proposition (which he sketches some paragraphs later) that permissive abortion laws would violate the Equal Protection rights of the unborn. As Arkes knows, John Finnis and others have undertaken to make that argument on conventional originalist grounds—grounds that do not depend on the justices’ own moral convictions on abortion—but that position got zero traction at oral argument, and no serious Court-watcher thinks it has a prayer of prevailing. Arkes makes a far more ambitious argument based on the supposed “underlying moral logic of the law,” as he contends that the “dictum ‘equal protection of the law’ is built . . . into any rule of law, even if not made explicit.” If I’m understanding him correctly, his argument would mean that slavery was impermissible under the original Constitution, long before the Civil War and the post–Civil War Amendments.

In the second, disfavored alternative that Arkes presents, the Court would (1) profess itself agnostic on “when human life begins, or what is to be regarded as a human life in any stage,” and (2) invite the people “to make their own ‘value judgments’ on when human life begins, and on when that developing life commands the obligation of the law to protect it.”

I think that Arkes is right to observe in his essay that too many conservative lawyers and judges seem to lapse into moral relativism when discussing abortion. (As I’ve pointed out before, I think that he’s wrong in his specific contention that I have lapsed, but I won’t belabor the point here.) I agree with Arkes that it would be cringeworthy and objectionable if the majority in Dobbs were to use his second alternative.

But there is a vast middle ground between Arkes’s two alternatives, a middle ground in which the justices recognize that the role of the federal judiciary is distinct from that of the state legislatures and that it is broadly up to the legislatures to resolve the competing claims to moral truth that the opposing sides on abortion present. And, no, it is not moral relativism to recognize the reality that these claims to moral truth conflict, nor to deny that the Supreme Court has a general warrant to decide which should prevail.

I have a larger concern about Arkes’s piece. This is a time in which the pro-life movement should be preparing to celebrate an overturning of Roe with hallelujahs and to energize and invigorate pro-lifers for the legislative battles that lie ahead. It is also a time in which the conservative justices are under intense attack precisely because it is expected that they will overturn Roe. There are some folks out there who, at this late stage, seem more interested in carping and whining that the conservative justices won’t deliver an even bigger victory than overturning Roe. Given Arkes’s well-deserved stature in the pro-life community, his piece—inadvertently, I am sure—will only serve to egg on the malcontents. I don’t see how anything good will come from that.

Law & the Courts

This Day in Liberal Judicial Activism—February 17

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1964—In Wesberry v. Sanders, the Supreme Court somehow extracts from the provision in Article I, section 2, that members of the House of Representatives be chosen “by the People of the several States” a supposed mandate that congressional districts in each state have, as nearly as practicable, equal populations.

In dissent, Justice Harlan lambastes the majority opinion as “unsound logically on its face, and demonstrably unsound historically.” He explains that Article I, section 4 confers on each state “plenary power to select their allotted Representatives in accordance with any method of popular elections they please, subject only to the supervisory power of Congress.” He closes by observing that the Constitution “does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short,” and by warning that the Court’s “stability” depends “not only on its being alert to keep the other branches of government within constitutional bounds, but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”

Law & the Courts

Supreme Court Vaccine Mandate Redux

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New York Governor Kathy Hochul delivers the State of the State address in the Assembly Chamber at the state Capitol in Albany, N.Y., January 5, 2022. (Hans Pennink/Pool via Reuters)

The switch from heroes to villains was abrupt. For much of 2020, every night at 7 p.m., New York’s health-care heroes heard the clapping and cheers of grateful neighbors who appreciated their willingness to help others during Covid, even without a vaccine. Now, many of those same health-care workers have lost their careers because of New York’s extreme and vindictive vaccine mandate.

That may change soon. Yesterday, in a case called Dr. A v. Hochul, 16 of those workers asked the Supreme Court to hear their First Amendment challenge to New York’s mandate. Represented by the Becket Fund for Religious Liberty and the Thomas More Society, the health-care workers asked the Court not only to invalidate New York’s mandate but also to overrule the 1990 case of Employment Division v. Smith.

New York’s mandate is an extreme outlier — the Biden administration’s rules, along with the rules in 47 other states, allow religious health-care workers to keep their jobs even if they remain unvaccinated. New York originally allowed religious exemptions, but then took them away. Worse, New York allows thousands of other unvaccinated health-care workers to keep their jobs — just not the religious objectors. Bizarrely, New York even allows vaccinated workers with active and symptomatic Covid infections to work in hospitals, but not healthy religious objectors who don’t have Covid.

Governor Hochul even took to the pulpit to denounce religious objectors. She said that God “made them come up with a vaccine” and that religious objectors “aren’t listening to God and what God wants.” Calling the attendees “the smart ones” and “the true believers,” she implored them to “be my apostles” to convince the unvaccinated. “You know who they are.” And to add insult to injury, days later Hochul announced that New York will strip the religious objectors of their unemployment benefits.

Such harsh treatment of religious objectors has no place in our constitutional system. And indeed, a district court judge found the mandate  to be a “religious gerrymander” that “targets religious opposition to the available COVID-19 vaccines.” But the Second Circuit Court of Appeals concluded that these “meaningful burdens” on religious objectors were just “not of a constitutional dimension” — so it let them get kicked to the curb instead.

The root of the Second Circuit’s decision was its reliance on the much-maligned Smith case. Smith is not rooted in the Constitution’s text — which protects the free exercise of religion — or in its structure, history, or traditions. It is only Smith’s stunted view of religious liberty that could lead a federal court to recognize the “meaningful burdens” on a constitutional right but somehow still conclude that they are “not of a constitutional dimension.” Only in a world warped by Smith would a government think itself free to mistreat a religious minority as New York has.

Three justices have already indicated that they think the Dr. A petitioners should win. It only takes four votes to decide to hear the case on the merits. The Court will decide whether to take the case this spring.