Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 25

President Trump speaks to reporters outside the White House, February 23, 2018. (Jim Bourg/Reuters)

2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”

In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”

(In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”)

Most Popular

Elections

Stick a Fork in O’Rourke

If, as I wrote last week here, Joe Biden may save the Democratic party from a horrible debacle at the polls next year, Beto O’Rourke may be doing the whole process a good turn now. Biden, despite his efforts to masquerade as the vanguard of what is now called progressivism, is politically sane and, if ... Read More
Education

Ivy-League Schools Wither

A  number of liberal bastions are daily being hammered — especially the elite university and Silicon Valley. A Yale and a Stanford, or Facebook and Google, assume — for the most part rightly — that each is so loudly progressive that the public, federal and state regulators, and politicians would of ... Read More
Elections

One More Profile of Beto, Because America Needs It

Somewhere in Texas, filed on the fly by a glossy-magazine correspondent, and totally not as a parody written by Jim Geraghty -- “It’s all about vision,” Beto O’Rourke tells me, standing tall upon the Texas prairie, or brush, or whatever this high hilltop area is supposed to be called. We’re watching the ... Read More