Bench Memos

Law & the Courts

Misguided ‘Pro-Life’ Attack on Trump Supreme Court Candidate Steven Colloton

Let’s jump into examining the caliber of Andy Schlafly’s attack on various of President-elect Trump’s Supreme Court candidates for supposedly not being “really pro-life” (a label that, as I discuss in my opening post, is rather confused). I’ll start with one of the three candidates Schlafly flatly declares to be “NOT pro-life” (his emphases), Eighth Circuit judge Steven Colloton.

Schlafly charges that Colloton “wrote or joined multiple pro-abortion opinions: one to eviscerate a pro-life South Dakota law, another to side with a fellow pro-abort judge against a pro-life Nebraska law, and a third to side with a pro-abort judge to come down hard on a pro-life internet activist.” For ease of presentation, I’ll address these three charges in reverse order:

1. By process of elimination, I gather that Schlafly’s charge that Colloton “side[d] with a pro-abort judge to come down hard on a pro-life internet activist” must refer to his opinion in United States v. Christenson[Update (1/13): I now understand that Schlafly’s cryptic reference was to Coca-Cola Co. v. Purdy (2004), a unanimous ruling that Colloton joined that affirmed a district court’s grant of preliminary injunctive relief against a pro-life activist who registered Internet domain names that incorporated famous trademarks and linked those names to a pro-life website. Fellow Bush 43 appointee Lavenski Smith, whose nomination won fire from abortion groups for his pro-life work, also joined the opinion. Having forsworn for the time being further engagement with Schlafly, I will leave it to the intelligent reader to discern that the ruling reflects a neutral and straightforward application of legal principles.] ​There are, however, a few teensy problems with Schlafly’s characterization:

(a) For starters, the defendant in the case, Chane Phillip Christenson, wasn’t “a pro-life internet activist.” Rather, he was someone who sent two horribly vile emails to the White House while (by his own account) under the influence of alcohol and marijuana. Here is the full text of his first email:

i guess obama was right “god damn the usa” i vote mass impeach every last mother fucking one of you for treason. i would kill obama if i could. i will go to jail before 1 dollar of mine goes for an abortion! illegal aliens shold be deported just like you obama you false birth record commie piece of shit. i hope some 1 kills you and stacks your head on a stick to warn any god damn commie that comes after. if you have more votes then voters someone LIED. impeach, deport or kill i do not care any more i hate my country i hate the un i hate acorn i hate mrs obama, i hate libs, i will not pay any more taxes nor will i call my self an american. if everyone can come in and no one can leave it’s a jail, berry sertero needs to have his head removed please kill him like you guys did JFK. hi hoe i hoe its off to jail i go for it the only way to stay alive in this fucked up country of mine. i used to praze the beauty of grey now it all KKK fuck you fuck you i want the with house to burn mass impeach you god damn treasonest mother fuckers. merry CHRIST mas you commie fucks! i would of died for my country now id sell it even fast then  you. i do not trust anyone that pays mils. to get a job that pays thou. please come and aresst me so i can go to court and say “i can say kill obama cuz that not even his real name’. forget the false birth record i want a blood teast and some dna. My country is evil just look at the hole “god damn” crew and now with YOUR healthcare abortion WE all must buy into. MASS IMPEACH on treason. I HATE MY COUNTRY I HATE YOU ALL you like you pay others to lie fuck you and your actors you god damn pieces of shit i want to see obama’s blood spilled all over the white house make it pink. GOD DAMN THE USA

And here is the text of his second email:


(b) Colloton did not “come down hard” on Christenson. Christenson pled guilty to one count of threatening the life of the president (based on his second email), and the district judge sentenced him to a grand total of three years’ probation. The sole legal issue before the panel was whether there was a sufficient factual basis for the guilty plea, which Christenson was trying to walk away from. Although reasonable factfinders might differ on whether Christenson’s second email amounted to a genuine threat, the simple question before the panel was whether the email was “plainly and obviously” not a threat. Colloton and his colleagues soundly determined (as I would hope every judge in the country would) that they could not say that the email was plainly and obviously not a threat.

(c) When Schlafly contends that Colloton “side[d] with a pro-abort judge” in the case, he must be referring either to Eighth Circuit judge William Duane Benton or to Federal Circuit judge Raymond C. Clevenger, who was sitting on the panel by designation. Benton, I’ll note, was part of the majority that rejected Planned Parenthood’s challenge to an informed-consent provision of South Dakota’s abortion laws in Planned Parenthood v. Rounds (discussed more fully below). From a quick Lexis search, I gather that Clevenger has never ruled on an abortion issue. So Schlafly’s label of “pro-abort judge” appears baseless.

2. Now for Schlafly’s claim that Colloton “side[d] with a fellow pro-abort judge against a pro-life Nebraska law”:

Schlafly is evidently referring to the opinion Colloton joined in Planned Parenthood of the Heartland v. Heineman. But following the parties’ settlement in the district court, the constitutionality of the Nebraska law was not at issue on appeal. The only issue on appeal was whether a pro-life group’s motions to intervene in the case in the district court had been wrongly denied. The panel simply concluded that the district court did not abuse its discretion in denying the motions as untimely. Schlafly does not even attempt to offer a reason to dispute the panel’s conclusion.

One could have, I suppose, a legal regime in which pro-life groups benefit from a special set of procedural rules, but such a regime would not be consistent with the rule of law.

As for Schlafly’s claim that Colloton “side[d] with a fellow pro-abort judge”: One of his panel colleagues, Lavenski Smith, faced strong opposition to his nomination because of his pro-life record before taking the bench, and was also part of the majority in Planned Parenthood v. Rounds. So, consistent with his own rhetoric, Schlafly might as well say that Colloton “sided with a fellow pro-life judge.” Schlafly presumably intends his “pro-abort” epithet for Kermit Bye. But the fact that Colloton and Smith joined Bye’s opinion is entirely consistent with the fact that the legal issue had nothing to do with abortion.

3. Schlafly’s charge that Colloton “eviscerate[d] a pro-life South Dakota law” is equally baseless. In Planned Parenthood v. Rounds, Colloton, concurring in the judgment of the en banc majority, rejected Planned Parenthood’s challenge to a South Dakota provision that required doctors, in the course of obtaining informed consent to abortion, to inform the woman seeking abortion of any “[i]ncreased risk of suicide ideation and suicide” associated with abortion.

As part of its effort to invalidate the provision, Planned Parenthood argued that it must be construed to require doctors to inform women of an unproven “conclusive causal link between abortion and suicide,” a causal link that medical evidence rarely is able to establish in any context. When Schlafly contends that the majority “eviscerate[d]” the law, is he siding with Planned Parenthood on what the law supposedly means? And does he recognize that the law would likely have been struck down if it required doctors to say something that wasn’t true?

Judge Raymond Gruender, I’ll note, authored the majority opinion in this case. Gruender is also on Trump’s list of Supreme Court candidates. Why doesn’t Schlafly charge that Gruender “eviscerate[d]” the South Dakota law and isn’t “really pro-life”? To be clear, I’m of course not suggesting that such a charge would be sound; I’m just pointing out how slapdash Schlafly’s attacks are.

* * *

In sum, Schlafly’s charges against Colloton are laugh-out-loud ridiculous. I’d be tempted to rest my case against Schlafly’s email here, but I will proceed to show that his charges against the five other candidates he attacks are also baseless.


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