Law & the Courts

Coke No Longer So Woke, Lest It Go Broke


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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 28


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

Law & the Courts

Another Abortion Distortion

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

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 27

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 26


1997After two decades of school-desegregation litigation in Jenkins v. Missouri, federal district judge Russell G. Clark issues his final order in the case. Clark’s desegregation plan for the Kansas City, Missouri, School District has been (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation.” As this report summarizes it, Clark has ordered the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”  

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

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

Law & the Courts

Guamanians Against KBJ?


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

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

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

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

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

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

Law & the Courts

KBJ’s Implausible Claim to Be an Originalist


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

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

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

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

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

Law & the Courts

KBJ Didn’t Know VMI Case?!?

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 25

(Matt Anderson/Getty Images)

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 24


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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 23

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 22


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

Law & the Courts

KBJ Offers Formalist Account of Judicial Role


From Judge Ketanji Brown Jackson’s opening statement today:

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 21

(Carlos Jasso/Reuters)

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 20


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

Law & the Courts

This Day in Liberal Judicial Activism—March 19


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

Law & the Courts

This Day in Liberal Judicial Activism—March 18


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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 17

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

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

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

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

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


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

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

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

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

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

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

RFRA and the Military

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

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

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

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

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

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

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

RFRA’s Application Here

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

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

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

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

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

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

Law & the Courts

With Friends Like These…—On Conservative Supporters of KBJ


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

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

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

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

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

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

Law & the Courts

An Unavoidable Decision

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

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 15


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

2016—No plaintiff? So what? 

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

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


Law & the Courts

This Day in Liberal Judicial Activism—March 14


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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 13

(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


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


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


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’


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


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.

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This Day in Liberal Judicial Activism—March 9


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).    

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This Day in Liberal Judicial Activism—March 8

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


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). 

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This Day in Liberal Judicial Activism—March 6


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


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?” 

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This Day in Liberal Judicial Activism—March 4

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


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


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 . . . .”


“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


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”


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

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.