Law & the Courts

A Response to Ed Whelan

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My late leader, the first Mayor Daley in Chicago, famously complained that “I have been vilified, I have been crucified, I have been . . . criticized.” But now my friend Ed Whelan has offered a criticism of me with a sharp edge, even in these pages that were once home to me. Whelan has accused me of setting up a “straw man” in the piece I wrote in the Wall Street Journal — it was a critique of what has been served up to us over the past 40 years as a morally empty “conservative jurisprudence.” Whelan curiously jumps to the charges of a “straw man” as he overleaps the main argument in the piece: The originalism offered us these days is a truncated originalism, quite detached from the understanding of those true originalists, the Founders, about the moral ground of the laws and Constitution they were putting into place. Lawyers such as Alexander Hamilton and John Marshall had the knack of the tracing their judgments back to those anchoring truths that formed the ground of those judgments. They were the truths that the Founders had drawn upon in shaping the Constitution — they were there before the Constitution, and as Hamilton and Marshall recognized, they would be there even if there were no Constitution. (See, for example, Hamilton in the Federalist No. 33.)

Whelan jumps to the issue of a “straw man,” and what is it? He claims that a key argument of mine was “patently false.” I had said that the dissenters in Roe v. Wade had quite ignored the impressive brief put before them, woven of embryology and principled reasoning, to show that the offspring in the womb had been human from its first moments and never a mere part of the mother. The lawyers sought to show why the laws in Texas were justified in extending their protection to the child in the womb. But the dissenters, I said, Justices White and Rehnquist, “were content to rely on the point that abortion was nowhere mentioned in the Constitution.” This charge, said Whelan, is “patently false.” And he followed through strongly with the avowal that “I am not aware of any originalist who has ever been ‘content to rely on the point that abortion was nowhere mentioned in the Constitution.’”

But may I offer in turn the “straw man” that Whelan evidently missed (and a dear friend to us both), the most notable originalist of all, Justice Antonin Scalia. In a line perhaps all too easy to forget in Stenberg v. Carhart (in 2000), Justice Scalia declared in dissent:

If only for the sake of its own preservation, the Court should return this matter to the people—where the Constitution, by its silence on the subject, left itand let them decide, State by State, whether this practice should be allowed. Casey must be overruled. [Italics added]

Whelan glides past Scalia, back to the dissenters in Roe. Justice White (joined by Rehnquist) said, “I find nothing in the language or history of the Constitution to support the Court’s judgments.” Is that not clear: that he finds nothing in the “language” composing the text? As for Rehnquist, he would insist that the asserted right to an abortion is not “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Once again there is an appeal to history or tradition, in large part because the rights engaged here are not mentioned in the text. But the deeper reason for this appeal to history or tradition is the long receding confidence that there really are any moral truths that can supply a firmer ground for our judgments on the things that are right or wrong. Our dear friend Justice Scalia appealed to history precisely because he thought it would be easier to get a consensus on the historical record. He despaired of reaching any consensus on the grounds of our moral judgment (as though any real truth depended for its validity on “consensus”).

It was the reworking of an ancient question: Is the old good because it is old; or has it become old because there is something about it enduringly good? Lyman Trumbull, steering the 14th Amendment through the Senate, assured his colleagues that there was nothing in that amendment that would threaten those barring interracial marriages in the states. That understanding was firm and settled as anything that could fix the “original understanding” of the men who drafted and voted for the 14th Amendment. And yet the fact that this understanding is fixed in the historical record does not prevent us from invoking, in our own day, a more demanding moral argument about the meaning of “racial discrimination.” But what some of my friends seem to miss is that the reasoning may come into play on our own issues as well: We can cite an impressive record, at the time of the 14th Amendment, to show many states moving to bar abortions. But the number of states we cite here, in making the count, cannot itself carry the argument. Those earlier statutes were drawn with a compelling mixture of scientific evidence and moral conviction. If we would sustain those statutes now — or sustain other statutes like them, yet to come — it is precisely because the evidence and reasoning behind them are as compelling and true now, in our own day, as they were then. We need not — and cannot — carry the argument by citing the box score of the people who voted on our side in the mid 19th century.

The curious and unsettling thing here is that Ed Whelan has so evidently absorbed the moral skepticism that has fueled the conservative justices, the ones who preferred to invoke history and steer around the moral substance at the heart of these cases. If Whelan is to be taken literally here, he regards claims to moral reasoning as suspicious on their face precisely because he thinks they involve no more than an appeal to personal and subjective feelings. And so he says:

• that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution.

•  [Arkes] thinks it proper for justices to impose their own moral readings on the Constitution.

In other words, moral judgments are merely expressions of personal feelings with no evident claim to truth. For if there were such truths, the judges would not be merely relying on “their own moral preferences” or “their own moral readings.” James Wilson and other Founders took as the first principle of moral and legal judgment: that it makes no sense to cast moral judgments of right and wrong on people who cannot control their own acts. And so we say that “we don’t hold people blameworthy or responsible for acts they were powerless to affect.” That anchoring axiom threads through many parts of our law, from the insanity defense to the case against racial discrimination. When a judge invokes this anchoring truth, would Whelan really say that he is indulging merely his “own preferences” or his “own readings”?

But if there is any lingering doubt on this matter, it is dispelled when Whelan says, rightly, that I would regard the moral readings offered by judges on the Left as “unsound.” Since he himself denies that moral reasoning has any necessary or plausible role in legal judgments, he doesn’t “see how it is right in principle or — given the massive left-wing bias of the elites from which judges are drawn — beneficial in practice to legitimate the broader practice.” But if Whelan credited for a moment that there really were moral truths to reason about, the obvious remedy to the overreaching of the Left is to show precisely why their reasoning has been specious and false. It is telling that he finds the remedy in simply avoiding moral reasoning altogether as some clever stratagem — and as though judges could get through their days without any serious reflections on the ground of their judgments on those matters of “right” and “wrong.”

Ed Whelan and I were colleagues and allies for several years at the Ethics and Public Policy Center. But the very title of that center would not have made much sense if we supposed that moral reasoning involved nothing more than an appeal to our “own” feeling or preference without any standard of truth to govern those judgments. We should be the last ones to join the Left in denying that there are any moral truths for reason to discern.

Ed Whelan and I have been allies for many years, and the vital things that connected us still do. But what is involved here is an argument within the family of conservatives, and the issues here run deeper, to the moral ground of the Constitution and our judgments. Ed and I have been divided on these questions, but the redeeming thing is that neither one has given up entirely on the possibility of bringing the other to his side.

* * *

Whelan raised some minor points, and I would raise two.

  • Whelan professes to be truly puzzled as to how moral reasoning could have come into play in the cases of same-sex marriage: “Does Arkes believe that the case against judicial invention of a constitutional right to same-sex marriage depends in any way on making a moral argument against same-sex relationships?” Well, the argument came into play finally in Chief Justice Roberts’s dissent. He offered a substantial argument there to make the case for marriage as we have known it, as the union of one man and one woman. That argument about the substance of the law would have shown why there were compelling reasons to respect the justification of the law that confined marriage to a man and a woman. And any reasoning of that kind would of course have implied something critical in what was missing in same-sex relationships as “sexual” relationships.
  • Whelan asked why the “truncated originalism” of Justices Alito and Kavanaugh would not have been enough to carry the decision on transgenderism. If Whelan returns to my piece he will find there the sense that it truly should have been enough to settle the judgment in that way: that it was just implausible to believe that the people who drafted and passed the Civil Rights Act of 1964 ever thought that it would cover people who professed to have changed their sex through a flight of their own imaginations. That should have been enough. And yet it didn’t persuade the textualist Gorsuch. Nor would it have worked if the Left had played the Lyman Trumbull card: We have experienced an enlarged sense of what counts as “racial discrimination” since Trumbull assured his colleagues that the new 14th Amendment would not challenge the laws that barred interracial marriage. The argument would surely have been made now that we have come to a comparably enlarged view of what we mean by “sexual discrimination.” I submit that the only — and most decisive — way of meeting that challenge was to appeal to those deep, objective truths among the meaning of sex that will never change: that if we are to survive as a species, we must be indeed constituted for that telos, or purpose, as males and females. But it is the appeal to those deep and necessary truths that has been studiously avoided in the truncated originalism that we have come to know.
Politics & Policy

Race Discrimination by Any Other Name Is Still Race Discrimination

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A man receives the Pfizer-BioNTech coronavirus vaccine as a booster dose at Skippack Pharmacy in Schwenksville, Penn., August 14, 2021. (Hannah Beier/Reuters)

On Tuesday, I, along with Michael Buschbacher of Boyden Gray & Associates filed a race-discrimination complaint with the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) over New Hampshire’s illegal racial set-asides in the state’s COVID-vaccine program.

The facts are simple. On April 2, 2021, a white male New Hampshire resident who has diabetes and is thus at elevated medical risk to COVID-19 called the Public Health Council of the Upper Valley in Lebanon, N.H., to schedule a COVID-19 vaccination. He was told appointments were “fully subscribed for people of color.” In short, he was denied a vaccine solely because of his race and had to go elsewhere to get the shot at a later date.

When life-saving medicines are in short supply and in high demand, they should go to those who are most likely to benefit. For this reason, it made sense when New Hampshire early on limited vaccines to people who were over 50 because of their clear medical risks. The state, however, included a woke exception to this scheme. Residents of a certain skin color or national origin could cut to the front of the line, no matter how young, healthy, or wealthy, no questions asked. New Hampshire set aside 10 percent of COVID-19 vaccines for “racial and ethnic minority groups,” which meant “all persons except white, non-Hispanic.” As part of the state’s “equity allocation,” the Public Health Council of the Upper Valley held “BIPOC clinics” for residents who identify as “Black, Indigenous or people of color” and only such residents. All spots being reserved for “people of color” meant none for people like the complainant, who happen to be white, and despite any elevated risk for COVID-19 complications.

In response to the complaint, the governor’s office provided a statement: “New Hampshire has been one of the most successful states in the nation at vaccine roll-out, and early on in the crisis was the fastest state in the nation for getting shots in arms quickly. NH opened the vaccine to everyone on April 2, before nearly every other state. Everyone who wanted a vaccine could have gotten a vaccine, and this complaint is going nowhere.”

Note the failure to address the elephant in the room. The statement obfuscates by focusing on April 2, the date the state allegedly opened up vaccinations for all. Conspicuously missing is any mention about the racial set-asides the state undeniably operated on before April 2. If the state had truly opened up its program to all residents on April 2, why was a clinic still denying patients, including the complainant, based on skin color on that date? It is no answer to say that the complainant could have theoretically gotten a shot somewhere else. Under that logic, New Hampshire can have a “non-whites only” DMV office and that would be ok because white residents could wait in line to get a license elsewhere. This is not a close question.

As a condition of receipt of federal funds, states (and others) are prohibited from discriminating on the basis of race, color, and national origin under Section 1557 of the Affordable Care Act and Title VI of the Civil Rights Act of 1964. New Hampshire received from HHS over half a billion dollars in federal COVID-relief funds, which included $43 million for its vaccination efforts. The state’s official COVID-resource website even links to HHS’s March 2020 Bulletin which states that civil-rights laws are not suspended during the pandemic and that “our civil rights laws protect the equal dignity of every human life.”

As HHS’s website explains: “Programs that receive Federal funds cannot distinguish among individuals on the basis of race, color or national origin, either directly or indirectly, in the types, quantity, quality or timeliness of program services, aids or benefits that they provide or the manner in which they provide them. This prohibition applies to intentional discrimination as well as to procedures, criteria, or methods of administration that appear neutral but have a discriminatory effect on individuals because of their race, color, or national origin.”

It doesn’t get much clearer than that. New Hampshire used race to determine who received COVID-19 vaccinations in its federally funded state vaccine program. The state blatantly denied white persons, such as the complainant, vital health treatments in the middle of a pandemic solely because of his race, color, and national origin. HHS must investigate and hold New Hampshire accountable to make sure such a thing never happens again.

Despite what some attempt to claim these days, race discrimination, even for the purpose of “equity,” is still race discrimination — and illegal.

Law & the Courts

Hadley Arkes’s Straw-Man Argument for a ‘Better Originalism’ on Roe

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In a Wall Street Journal op-ed today, my friend Hadley Arkes argues for what he labels a “better originalism” in place of the “truncated originalism” that “has predominated” among legal conservatives. That dominant originalism, he contends, is “detached from the understanding that the American Founders, the true originalists, had of the moral ground of the Constitution and laws they were shaping.”

There is plenty of room for methodological disputes within originalism, and what originalist could oppose a “better originalism”? But Arkes’s critique of the dominant originalism is unpersuasive, and I can’t discern what his “better” alternative actually entails.

1. Let’s start with the straw-man argument that lies at the core of Arkes’s piece. Arkes would have you think that the dominant originalist case against Roe v. Wade is that “abortion is nowhere mentioned in the Constitution.” Repeating the same charge, he alleges that the dissents of Justice White and Justice Rehnquist in Roe “were content to rely on the point that abortion was nowhere mentioned in the Constitution.” This charge is patently false.

The originalist case against Roe rests heavily on (as Mississippi puts it in its brief in Dobbs v. Jackson Women’s Health Organization) “text, structure, history, [and] tradition.” A central part of the case has always been that many states, recognizing the child in the womb as a human being worthy of protection, broadly prohibited abortion at the very time that the Fourteenth Amendment was ratified. I am not aware of any originalist who has ever been “content to rely on the point that abortion was nowhere mentioned in the Constitution.”

In his combined dissent in Roe and in Doe v. Bolton, Justice White (joined by Justice Rehnquist) stated, “I find nothing in the language or history of the Constitution to support the Court’s judgments.” In his dissent in Roe, Rehnquist (joined by White) acknowledged that “the ‘liberty,’ against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights.” In other words, he repudiated the position that the fact that “abortion is nowhere mentioned in the Constitution” resolves the matter. He went on:

But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law….

The fact that a majority of the States reflecting, after all, the majority sentiment in those States, have had restrictions on abortions for at least a century is a strong indication, it seems to me, that the asserted right to an abortion is not ‘so rooted in the traditions and conscience of our people as to be ranked as fundamental’….

To reach its result, the Court necessarily has had to find within the Scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion.  While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.

2. I’m unclear on what role Arkes believes the “moral ground of the Constitution” should have in originalist interpretation of the Constitution. The dominant originalist view, as I understand it, is that separation of powers and federalism are part of that “moral ground,” and that the duty of Supreme Court justices is not to indulge their own moral preferences in interpreting the Constitution. Constitutional provisions, of course, might embed moral understandings, and when they do, justices should interpret those provisions consistent with those understandings. If that is all that Arkes means, then we are on the same page.

From my broader understanding of Arkes’s work, I fear, though, that he thinks it proper for justices to impose their own moral readings on the Constitution. There are suggestions to that effect in his op-ed. He, for example, faults Justice Scalia for “steer[ing] around the questions of moral substance at the heart” of Obergefell v. Hodges. Does Arkes believe that the case against judicial invention of a constitutional right to same-sex marriage depends in any way on making a moral argument against same-sex relationships?

For decades now, the Left has argued (often overtly, sometimes covertly) that it is legitimate for justices to impose their own moral readings of the Constitution. Indeed, the case for Roe rests heavily on that proposition. I trust that Arkes would argue that the Left’s moral readings are in many instances unsound. But I don’t see how it is right in principle or—given the massive left-wing bias of the elites from which judges are drawn—beneficial in practice to legitimate the broader practice.

3. A couple minor points, while I’m at it:

As I read Arkes’s critique, it would apply equally against those—most prominently, John Finnis, Michael Paulsen, and Joshua Craddock—who make the originalist case for constitutional personhood, as they undertake to do so using the same originalist methodology that Arkes condemns.

As an ardent critic of Justice Gorsuch’s opinion in Bostock v. Clayton County, I’m sorry to say that Arkes’s own criticism fails to engage with Gorsuch’s actual argument. Arkes seems not to recognize that Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ [in Title VII] … refer[s] only to biological distinctions between male and female.” Thus, it is no answer to Gorsuch, much less the “most decisive[]” answer, to “appeal[] to the meaning of sex that will never change.” The “truncated originalism” (or textualism) in the dissents of Justice Alito and Justice Kavanaugh is far more effective.

Law & the Courts

This Day in Liberal Judicial Activism—September 30

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(Andrew Kelly/Reuters)

2013—Rosemary Barkett’s 34-year Reign of Error in the American judiciary—first in Florida’s lower courts, then as a state supreme court justice (and chief justice), and finally as a federal appellate judge—comes to an end, as she retires from the Eleventh Circuit and accepts a position as an arbitrator on the Iran-United States Claims Tribunal in The Hague. How much damage Barkett can inflict in her new position is unclear, as the dysfunctional Tribunal has jurisdiction only over claims filed more than three decades earlier.

Law & the Courts

Sotomayor Disqualifies Herself from Ruling on Texas Heartbeat Act?

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According to this Washington Post article, in an American Bar Association summit on diversity today, Justice Sotomayor appears to have encouraged lawyers in her audience to work to change the Texas Heartbeat Act. Indeed, she seems to realize that she crossed the line requiring her disqualification from cases involving the Act.

Here’s the full passage (emphasis added):

Sotomayor was among the four dissenters who would have stopped the law taking effect, and in a virtual appearance at an American Bar Association summit on diversity, she mentioned the Texas law, which she wrote in her dissent was “flagrantly unconstitutional.” She told a questioner that “there’s going to be a lot of disappointments in the law, a huge amount.”

“As you study cases and look at outcomes you disagree with, it can get frustrating,” she said. “Look at me, look at my dissents, okay?” she said, laughing. “At least I have a vehicle, I have a dissent mechanism that I can explain how I feel.”

She continued: “So you know, I can’t change Texas’s law, but you can. You can and everyone else who may or may not like it can go out there and be lobbying forces in changing laws that you don’t like.”

“I’m pointing out to that when I shouldn’t because they told me I shouldn’t,” she said, referring to the practice by which justices refrain from commenting outside the court setting on cases that are before them.

Note how in the middle of the second sentence that I’ve highlighted, Sotomayor evidently grasps that she has improperly spoken about the Texas Heartbeat Act, so she tries to shift at the end of her sentence to speaking generically of “changing laws that you don’t like.” Too late, as she herself seems to acknowledge in the last sentence: “I’m pointing out to that when I shouldn’t….”

It already seemed farfetched that the abortion providers challenging the Act would get the four votes needed to grant their extraordinary petition for certiorari before judgment. Without Sotomayor’s participation, the probability would be zero.

Law & the Courts

‘Boy, She Had a Way with Words’

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That was Senate Judiciary Committee chairman Dick Durbin’s tribute to Justice Ruth Bader Ginsburg at the end of today’s hearing, as he attributed these words to Ginsburg:

Judicial independence in the U.S. strengthens ordered liberty, domestic tranquility, the rule of law, and democratic ideals. It would be folly to squander this priceless constitutional gift to placate the clamors of benighted political partisans.

Alas, the words that Durbin praised weren’t Ginsburg’s. She was instead quoting an essay by Bruce Fein and Burt Neuborne in a chapter that she contributed to a book titled The Rule of Law.

Ginsburg’s chapter evidently appears as one of the entries (“Judicial Independence,” I gather) in her 2016 book My Own Words. I don’t seem to have that book on my shelves, but I’d be very surprised if Ginsburg failed to continue to attribute the passage to Fein and Neuborne. Perhaps a reader who has the book can confirm the point. [Update: A reader has confirmed that Ginsburg quoted Fein and Neuborne in her book.]

Law & the Courts

Texas’s Response to DOJ Motion for Preliminary Injunction Against Texas Heartbeat Act

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I’ve highlighted, and offered comments on, DOJ’s lawsuit against Texas over the Texas Heartbeat Act and its motion for injunctive relief. Today Texas filed its opposition to DOJ’s motion and its motion to dismiss DOJ’s complaint. The district court will hold a hearing on DOJ’s motion on Friday.

Here is Texas’s introduction (some citations simplified or omitted):

The Court should deny the federal government’s motion for a preliminary injunction and dismiss this case. Article III does not permit courts to hear “a proceeding against the government in its sovereign capacity” when “the only judgment required is to settle the doubtful character of the legislation in question.”

Disregarding this jurisdictional defect, the federal government seeks extraordinary relief—an injunction against non-party private individuals and state judges—without even identifying a cause of action. Congress has created numerous specific causes of action for the Attorney General, but not one applies here. Congress has created causes of action for the Attorney General to enforce various constitutional rights and statutory abortion rights under the Freedom of Access to Clinic Entrances Act. But Congress has never created a cause of action to enforce a constitutional right to abortion. Instead, it has repeatedly refused to create a broader cause of action for the Attorney General.

The federal government asks the Court to dispense with the normal cause-of-action requirement based on unfounded fears that the Texas Heartbeat Act will otherwise “evade judicial review.” Nothing could be further from the truth. The constitutionality of the Texas Heartbeat Act can be reviewed in the same way that virtually all of state tort law is: State-court defendants raise constitutional defenses before neutral judges sworn to follow the U.S. Constitution and, if necessary, appeal to the U.S. Supreme Court. See, e.g., New York Times Co. v. Sullivan (1964).

True, some abortion providers might prefer to be federal-court plaintiffs rather than state-court defendants, but that preference is not a constitutional right. It is also an issue that Congress has already considered. The Attorney General has statutory causes of action to enforce certain Fourteenth Amendment rights if he concludes that the affected individuals “are unable . . . to initiate and maintain appropriate legal proceedings.” But those causes of action are limited to equal protection rights. Congress’s detailed cause-of-action scheme precludes the Attorney General from bringing this suit to enforce a constitutional right to abortion.

The federal government also asks this Court to disregard the standard limitations on injunctive relief. Effectively conceding that an injunction against the State would be useless—because the State does not enforce the Heartbeat Act—the federal government seeks an injunction running against two groups of non-parties: (1) private individuals who might bring heartbeat suits and (2) state courts that might adjudicate those suits. Binding precedent forecloses both options.

The Court cannot decide that absent third parties are subject to an injunction without letting them be heard. And “an injunction against a state court would be a violation of the whole scheme of our government.” Ex parte Young (1908). As the Fifth Circuit recently held, “[i]t is absurd to contend . . . that the way to challenge an unfavorable state law is to sue state court judges, who are bound to follow not only state law but the U.S. Constitution and federal law.”

What is worse, the federal government asks the Court to overcome all of these hurdles in order to issues an ineffective injunction against a valid law. According to the federal government, abortion providers are “chilled” by the prospect of future liability in state court. But on these facts, a preliminary injunction would not “unchill” abortion providers. In light of the strong possibility that any preliminary injunction would eventually be stayed or reversed, allowing heartbeat suits in state court to proceed, abortion providers would still face the prospect of future liability. In this case—where the alleged irreparable harm flows from the mere prospect of future liability—a preliminary injunction would not help.

Finally, the Texas Heartbeat Act is constitutional. Even the federal government does not challenge the constitutionality of many provisions in the Heartbeat Act. No one disputes the constitutionality of requiring doctors to determine “whether the woman’s unborn child has a detectable fetal heartbeat. No one disputes the constitutionality of the provision governing attorney’s fees. The federal government’s challenge is limited to the provision authorizing private causes of action, but even that argument is limited to the statute’s pre-viability applications. The federal government raises no argument that Texas cannot authorize heartbeat suits for post-viability abortions. In any event, the Heartbeat Act cannot violate Supreme Court precedent because it incorporates the Court’s “undue burden” test as a defense.

In the end, the motion for a preliminary injunction “presents complex and novel antecedent procedural questions on which [the federal government has] not carried [its] burden.” Whole Woman’s Health v. Jackson (U.S. Sept. 1, 2021). As a result, the Court “cannot say” that the federal government has “met [its] burden to prevail [on] an injunction.”

Law & the Courts

This Day in Liberal Judicial Activism—September 29

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(maroke/Getty Images)

1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy. The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program. After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.” Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply. As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means: “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”

Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.

Law & the Courts

En Banc Ninth Circuit Rejects Attenuated Causation under Fair Housing Act

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In a ruling today in City of Oakland v. Wells Fargo & Co., a unanimous Ninth Circuit en banc panel, relying heavily on a Supreme Court decision from just four years ago, ruled that the city of Oakland was not entitled to pursue its claim under the Fair Housing Act that Wells Fargo’s allegedly discriminatory lending practices had reduced the city’s property-tax revenues:

The City of Oakland … claims that Wells Fargo’s discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates that drove down the assessed value of properties, and which ultimately resulted in lost property tax revenue and increased municipal expenditures. These downstream “ripples of harm” are too attenuated and travel too “far beyond” Wells Fargo’s alleged misconduct to establish proximate cause.

The en banc ruling thus rejected the conclusion reached by the panel decision authored in August 2020 by Judge Mary Murguia.

As I noted in May, the grant of en banc review required the support of at least one Democratic appointee. It’s a safe bet that the active role in the en banc process played by the new corps of conservative judges on the Ninth Circuit helped secure the grant. Had the court denied en banc review, there surely would have been a strong dissent from the denial. How many unanimous Supreme Court reversals are the moderate liberals on the Ninth Circuit willing to have their court endure?

The unanimous en banc panel was ideologically diverse, so that might make you think that there was overwhelming support to go en banc. I’m speculating, to be sure, but Murguia’s panel opinion strikes me as the sort of wild opinion that the liberal judges have long been happy to let slide.

Kudos, by the way, to Wells Fargo’s outside counsel Neil Katyal for his big victory against a very expansive application of the Fair Housing Act.

Law & the Courts

Senator Durbin Shadowboxes with Shadow Docket

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Senate Judiciary Committee chairman Dick Durbin will be holding a hearing tomorrow titled “Texas’s Unconstitutional Abortion Ban and the Role of the Shadow Docket.” In a National Law Journal op-ed on the topic, Durbin complains that the Supreme Court denied the abortion providers’ request for emergency relief against the Texas Heartbeat Act. Further, he faults the Court for “selectively using the shadow docket, only granting emergency relief when it suits their ideological agenda,” and objects specifically to the Court’s granting relief in the last year of the Trump administration that “allow[ed] federal executions to resume for the first time in nearly two decades.”

Durbin’s complaint about the Court’s denial of emergency relief against the Texas Heartbeat Act is feeble. Durbin states that “the Supreme Court’s conservative majority claimed that there was no one for the court to enjoin,” but he himself, like the four dissenters, is unable to explain what relief against which named defendants would somehow prevent the millions of nonparty individuals from enforcing the Act in hundreds of Texas courts. (See here for why the denial of relief should have been unanimous.) It’s thus very strange that a critic of the “shadow docket” would think that the abortion providers’ emergency request was an apt occasion for the Court to intervene.

On Durbin’s further complaint that the Court has been ideologically “selective” in granting relief, his prime example appears to be much weaker than he realizes. As Hashim Mooppan, a senior DOJ official involved in the federal death-penalty litigation, has explained in testimony recently submitted to President Biden’s Supreme Court commission:

The critical narrative that some have constructed about the Supreme Court’s federal death-penalty orders is belied by the record. The Court did, of course, summarily vacate several last-minute injunctions and stays of executions, based on expedited briefing and generally without providing a written explanation. But the critics err in accusing the Court of having rushed to judgment in derogation of established standards. In particular, they are wrong that the Court vacated lower-court reprieves that were justified by the existence of likely meritorious claims and the need to prevent the irreparable harm of death. That narrative mischaracterizes the strength and nature of the claims asserted, and it also misconstrues the standards governing relief from execution pending further litigation….

[T]here was only one, inmate-specific injunction entered by the lower courts where some Justices dissented from the Court’s vacatur order on the (later-disproved) ground that the inmate was likely to succeed on the claim at issue. Put differently, in the Court’s seven other emergency orders that vacated the lower-court rulings postponing the executions of 12 of the 13 inmates, the record reveals that no Justice ever actually claimed that any of those inmates had a significant possibility of ultimate success on the claims therein. Indeed, for three of those vacatur orders, no Justice dissented at all (as was also the case for twelve orders that merely denied an inmate’s application for relief after the court of appeals had already denied relief)….

At the end of the day, none of [the inmates’] claims satisfied the legal and equitable standards necessary to obtain a stay or injunction further delaying these already long-delayed sentences of death for murders that were unusually depraved even by capital standards, including the killings of eight children and a pregnant woman. The granting of relief was especially improper when, as repeatedly occurred during this litigation, it was entered just days (if not hours) before the scheduled execution. The Supreme Court has repeatedly admonished that such last-minute reprieves are inappropriate absent exceptional circumstances, given the risks of abuse and delay that they pose as well as the toll they take on all involved in litigating, administering, and witnessing the executions, including the victim’s family members who have traveled to the execution facility. The Court therefore acted appropriately in applying the established standards to reverse lower courts in the eight instances where they erroneously granted relief to the inmates.

(Italics in original; underlining added.)

Law & the Courts

This Day in Liberal Judicial Activism—September 28

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Arthur Goldberg, 1965. (Wikimedia commons)

1962— President Kennedy’s appointment of Arthur Goldberg to replace the retiring Felix Frankfurter creates a clear liberal activist majority on the Supreme Court. As Seth Stern and Stephen Wermiel write in Justice Brennan:

Goldberg’s arrival meant that Brennan did not need to accommodate [Byron] White’s concerns [of judicial restraint]: the bloc had its fifth vote without him. After the very first Friday of the term, Brennan came back to his chambers with a look of triumph on his face—a look he would keep all term.

2018—Federal district judge Emmet G. Sullivan rules (in Blumenthal v. Trump) that individual members of the United States Senate and House of Representatives have standing to pursue their claim that President Trump has violated the Foreign Emoluments Clause of the Constitution.

In February 2020, an ideologically diverse D.C. Circuit panel will reject Sullivan’s ruling on the ground that it conflicts directly with Supreme Court (as well as circuit) precedent.

Law & the Courts

Monopolizing the Marketplace of Ideas

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Baker Jack Phillips, decorates a cake in his Masterpiece Cakeshop in Lakewood, Colo., September 21, 2017. (Rick Wilking/Reuters)

In case you hadn’t noticed, views on free speech are changing. In the past, we defended our neighbor’s right to express views we disliked. Today, the American Booksellers Association apologizes for the “violent” act of promoting controversial books in its newsletter. In the past, we valued tolerance. Today, some cultural elites consider dissent from certain ideologies to be indefensible.

These changes have legal consequences. Those seeking to control how we think don’t stop with our jobs or social-media accounts. They enlist state power to get their way. Jack Phillips and Lorie Smith know this firsthand.

Jack is the Lakewood cake designer who declined to create a custom cake celebrating a same-sex wedding. The state of Colorado sued him. He won at the U.S. Supreme Court. After he declined a lawyer’s request to create a pink-and-blue cake celebrating a gender transition, the state sued him again. He won that, too. Now, that activist lawyer is suing Jack for the same thing.

As Lorie Smith watched Jack’s plight, she realized how things would play out. Lorie is a Denver-area website designer who started her own design business to have greater artistic freedom to choose her projects. But the same law that forced Jack to create custom cakes celebrating same-sex marriage also requires Lorie to create custom wedding websites celebrating same-sex marriage. Knowing this would violate her conscience, she asked a court to protect her First Amendment right to choose which messages she promotes.

Unfortunately, a federal appellate court ruled against her. Why? Not because she discriminates. She doesn’t. The state conceded this. And the court agreed, acknowledging that Lorie is “willing to work with all people regardless of sexual orientation.” The court also agreed that Lorie’s websites consist of speech covered by the First Amendment and that the state is forcing her to promote certain views. The end result? Colorado’s law creates a “substantial risk of excising certain ideas or viewpoints from the public dialogue.” Those ideas are Lorie’s religious ideas defining marriage to be between a man and a woman. “Eliminating such ideas is [the law’s] very purpose,” said the court.

Despite all this, the court said the state can override Lorie’s First Amendment rights and compel her to promote same-sex marriage online because those wanting to promote that view cannot obtain “services of the same quality and nature as those that” Lorie offers. Lorie somehow managed to create a “monopoly” through her one-person studio.

So let’s get this straight. Billion-dollar tech companies delete content on their websites and de-platform people from those sites every day. But a solo religious artist running her studio has become such a monopoly that the state can force her to design and publish websites promoting views that violate her convictions?

Now let’s get real. This isn’t about monopolies controlling access to services in the marketplace. This is about the government excluding dissenters from the marketplace of ideas. Even the court agreed that consumers “may be able to obtain wedding-website design services from other businesses.” There are, after all, over 77,000 web-design firms in the U.S. alone.

But apparently that’s not good enough. Mimicking certain cultural trends, Colorado officials disdain certain views on marriage, want to eradicate them, and demand that those like Lorie and Jack — religious artists and small-business owners — profess different views or lose their livelihoods. And this should be alarming whether you agree with Lorie’s and Jack’s views on marriage or not. When the state can punish speakers based on ideological disagreements and force people to speak messages they disagree with, everyone loses. That’s because the implications of this case transcend marriage. If not today, then tomorrow, when the cultural winds shift again on a different topic.

Thankfully, this court decision won’t be the last word. With the help of her Alliance Defending Freedom attorneys, Lorie has asked the U.S. Supreme Court to step in and protect the freedom of all Americans. Do we live in a free marketplace of ideas? Or do state officials have a monopoly to control the views we do and don’t express? The stakes are too great for a wrong answer.

Jonathan Scruggs, senior counsel and director of the Center for Conscience Initiatives at Alliance Defending Freedom (@Alliance Defends), represents Lorie Smith and her web-design business, 303 Creative.

Law & the Courts

On Abortion Providers’ Extraordinary Petition for Certiorari Before Judgment

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Some fuller thoughts, on top of my initial comments, on the petition for a writ of certiorari before judgment that the abortion providers challenging the Texas Heartbeat Act filed in the Supreme Court last Thursday:

1. The lead question on which the abortion providers seek the Court’s review—“whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions”—is not a question properly before the Court.

If understood as an independent question (and not just as tendentious rhetoric), that lead question is asking the Court to render an advisory opinion. In the tail end of the petition, the abortion providers ask the Court to decide whether state court clerks and state judges are proper defendants in the case. Those jurisdictional questions—which are pending before the Fifth Circuit, with oral argument in early December—will entirely dispose of the lead question. If state court clerks and state judges are proper defendants, then the lead question disappears. And if they are not proper defendants, then there is no jurisdiction to decide the lead question.

2. The sophisticated team of lawyers representing the abortion providers has used alternating tactics of stalling and racing to try to game the litigation. The certiorari petition is usefully understood in that light.

Texas legislators introduced the Texas Heartbeat Act on March 11, and Texas governor Greg Abbott signed it into law on May 19. So the abortion providers had plenty of notice to launch an immediate challenge, including a motion for a preliminary injunction. Instead, they waited nearly two months, until July 13, to file their complaint. And they waited nearly another month, until August 7, to file their motion for a preliminary injunction.

In short, a full 80 days passed between enactment of the Act and the abortion providers’ motion for a preliminary injunction. And that motion was filed just 25 days before the effective date of the Act. It seems obvious that the abortion providers’ lawyers were trying to obscure the severe jurisdictional obstacles their motion faced and to rush the district court to grant ill-considered relief.

When the district court, on August 25, denied the state defendants’ motion to dismiss on sovereign immunity grounds, their immediate appeal divested the district court of jurisdiction over them. The abortion providers then filed various “emergency” motions with the Fifth Circuit, even asking that the court vacate their own victory on the motion to dismiss.

On the afternoon of August 30, after the Fifth Circuit properly denied their motions, the abortion providers then raced to the Supreme Court. Their “emergency application” asked the Court to act before September 1 (i.e., in barely 30 or so hours) to enjoin state officials from enforcing the Act, even though the Act itself prohibits those state officials from enforcing it. The Court properly denied their request for emergency relief (though the 5-4 vote should have been unanimous).

After delaying for 80 days in filing their motion for preliminary-injunctive relief, the abortion providers are now asking the Court to leapfrog the proceedings below. What’s more, they are asking the Court to expedite consideration of their extraordinary writ for certiorari before judgment. Instead of allowing defendants the usual 30 days to respond to their petition, they have asked the Court to require a response by October 12. Not only would that give defendants only 19 days to respond, but, as the abortion providers well know, that proposed deadline is also nearly simultaneous with the date (October 13) on which defendants must file their opening briefs in the pending Fifth Circuit appeal.

The abortion providers propose that the Court consider their petition at the Court’s October 29 conference. In the event that the Court were to grant certiorari, they propose an expedited schedule of briefing on the merits a briefing that “would allow for oral argument during the Court’s December sitting” (which ends on December 8)—right when the Fifth Circuit is slated to hear oral argument. The Court’s usual rules contemplate 105 days for full merits briefing. The abortion providers’ schedule would allow only about 1/3 of that.

Given that the abortion providers delayed the litigation by 80 days in order to gain tactical advantage, the Court should look with particular disfavor on their petition.

Law & the Courts

This Day in Liberal Judicial Activism—September 27

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The U.S. Department of Homeland Security emblem. (Hyungwon Kang/Reuters)

2019—Federal district judge Ketanji Brown Jackson issues a nationwide injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. In the course of her 122-page opinion, Jackson rules that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious. On the contested question whether the APA authorizes federal courts to issue nationwide injunctions, law professor Samuel Bray condemns her shallow analysis and “imprudently intemperate” rhetoric.

In June 2020, the D.C. Circuit will reverse Jackson’s ruling. In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards, holds that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. In a separate opinion, Judge Neomi Rao determines that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge.

Law & the Courts

This Day in Liberal Judicial Activism—September 26

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The west side of the Capitol Building in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of apparent flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship. (See here for documentation.)

2013—A Second Circuit panel (consisting of one Clinton appointee, one Bush 43 appointee, and one Obama appointee) unanimously reverses senior federal district judge Jack B. Weinstein, who had ruled—in a 349-page opinion, with an additional 50+ pages of appendices—that the Eighth Amendment bars applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Unhappy over the reversal, Weinstein within hours issues an extraordinary memorandum arguing that the case “exemplifies the sometimes unnecessary cruelty of our federal criminal law.”

Weinstein, alas, badly obscures the essential facts of the case. He contends in the brief “Facts” section of his memorandum that the defendant “never produced, sold or deliberately exchanged [child] pornography.” (Emphasis added.) But according to the Second Circuit, the defendant admitted that

he had opened a GigaTribe account in November 2008 and used it and another file sharing program, LimeWire, to download “a ton” of child pornography onto the seized computers; and that he had shared child pornography files in designated folders with between 10 and 20 other GigaTribe users. [Emphasis added.]

The Second Circuit’s opinion also includes lots of other very ugly facts (too ugly to repeat here) that would lead very few people to conclude, as Weinstein did, that the defendant’s sentence was unjust.

2016—Federal district judge Algenon L. Marbley (of the Southern District of Ohio) issues a preliminary injunction ordering the Highland Local School District to treat an 11-year-old boy “as the girl she is, including referring to her by female pronouns and her female name and allowing her to use the girls’ restroom.” Never mind that the Supreme Court had just blocked a preliminary injunction in a similar case.

Marbley’s reasoning is laced with errors. For example, on the plaintiff’s Equal Protection claim, he races to find that “transgender status is a quasi-suspect class” subject to heightened scrutiny, but never stops to notice that a bathroom policy that is based on biological sex does not classify on the basis of transgender status.

Law & the Courts

This Day in Liberal Judicial Activism—September 25

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President Jimmy Carter at the White House in 1977 (LIbrary of Congress)

1979–Taking advantage of its (and the House’s) massive increase in the number of judgeships a year earlier, the Democrat-controlled Senate confirms on a single day 25 of President Jimmy Carter’s judicial nominees, seven to appellate judgeships and eighteen to district judgeships.

Law & the Courts

More Hijinks from Liberal Sixth Circuit Judges

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In a quiet order on Monday, Justice Kavanaugh granted the state of Ohio’s unopposed application to recall and stay the Sixth Circuit’s mandate to grant habeas relief to August Cassano on his conviction and sentence to death for murdering a fellow prisoner in 1997.

Why, you might wonder, did Ohio have to go to the Supreme Court for this relief when Cassano himself did not oppose it? Two reasons: Judge Eric Clay and Judge Bernice Donald.

In a divided panel opinion in June (in Cassano v. Shoop) that reversed the district court, Clay and Donald combined to rule that Cassano was unconstitutionally deprived of his right to represent himself in his murder trial. They “conditionally” granted Cassano’s petition for a writ of habeas corpus, unless Ohio retries him Judge Eugene Siler, in dissent, objected that Cassano had not clearly, unequivocally, and timely invoked his right (as Supreme Court precedent requires) and further that the Ohio supreme court did not unreasonably conclude that Cassano had failed to invoke his right (as required by the standard for federal habeas relief under AEDPA, the Antiterrorism and Effective Death Penalty Act of 1996).

On August 26, the Sixth Circuit denied en banc review, over powerful dissents by Judge Richard Griffin and Judge Amul Thapar. (See pp. 34-46 of this Appendix.)  Griffin notes that “the Supreme Court has reversed us twenty-two times for not applying the deference to state-court decisions mandated by AEDPA” and that twelve of those reversals “were by per curiam decisions on petitions for writs of certiorari.” It’s a safe bet that Cassano will add to both totals.

On August 27, Ohio moved to stay the Sixth Circuit’s mandate pending its filing of a certiorari petition in the Supreme Court. A stay would cause no harm to Cassano, who is serving a life sentence for a previous murder. But issuance of the mandate would start the six-month clock on a retrial of Cassano and thus would require Ohio to start devoting resources to prepare for a retrial that would not have to take place at all in the likely event that the Supreme Court would grant Ohio’s certiorari petition some months from now and ultimately reverse.

Clay and Donald denied Ohio’s request for a stay and its unopposed motion to reconsider the denial of the stay. So Ohio had to go to the Supreme Court to get the elementary relief that Clay and Donald did not provide, even though Cassano did not oppose it.

Law & the Courts

This Day in Liberal Judicial Activism—September 24

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President Bill Clinton speaks in the briefing room of the White House, June 16, 1998. (Gary Cameron/Reuters)

1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution. In the words of one of the dissenting justices:

The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.… When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.

2013—Live by the quota, die by the quota?

The New York Times reports that the Congressional Black Caucus is complaining that “out of 787 [active] federal [judicial] positions, only 95 are held by black judges.” But insofar as the Congressional Black Caucus is claiming that blacks are substantially “underrepresented” in the federal judiciary, its own statistics belie its claim.

Let’s make the dubious assumption that the relevant benchmark for quota-mongers is the percentage of blacks in the population (rather than, say, the much lower percentage of lawyers who are black—apparently in the 4% to 5% range—or the even lower percentage of blacks among lawyers who have 15 or 20 years of qualifying legal experience).

According to 2010 population statistics, blacks make up 12.6% of the U.S. population. The Congressional Black Caucus’s numbers show that blacks hold 12.1% of active federal judgeships. That would suggest a trivial disparity—again, against a very favorable benchmark.

Less than a year later, the percentage of active federal judgeships held by blacks will exceed the percentage of blacks in the population.

Law & the Courts

Abortion Providers File Extraordinary Petition for Certiorari Before Judgment

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The abortion providers challenging the Texas Heartbeat Act currently have their case pending in the Fifth Circuit, with oral argument on jurisdictional issues scheduled (I’m told) for the week of December 8. But they have just filed in the Supreme Court an extraordinary petition for a writ of certiorari before judgment, asking the Court to jump past both the district court and the Fifth Circuit to decide the question “whether a State can insulate from federal-court review a law that prohibits the exercise of a constitutional right by delegating to the general public the authority to enforce that prohibition through civil actions.”

A couple of initial comments:

1. The abortion providers contend that “[o]nly [the Supreme] Court’s immediate intervention will ensure that Texans’ federal constitutional rights are protected.” But the Department of Justice, with much fanfare, has filed its own lawsuit against Texas over the Texas Heartbeat Act. The federal district judge in the DOJ case has scheduled a hearing on DOJ’s motion for a preliminary injunction for next Friday, October 1.

If my quick review is correct, the abortion providers make no mention of that lawsuit, other than to draw on various of the declarations that DOJ filed.

Do the abortion providers believe that DOJ’s lawsuit will surely fail? If so, why? If not, doesn’t that cut strongly against the extraordinary intervention that they seek from the Court?

2. When the Supreme Court denied the abortion providers’ previous application for emergency relief, the per curiam majority observed that their application “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Nothing has changed on that score. So why should the Court grant certiorari? Why not benefit from the Fifth Circuit’s consideration of those antecedent questions?

Law & the Courts

Ninth Circuit Dislodges Homelessness Czar’s Seizure of Power

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Back in April, I highlighted an “astounding” ruling by federal district judge David O. Carter that ordered the City of Los Angeles and the County of Los Angeles to take a broad set of actions to address the area’s homelessness crisis, including requiring the city to place one billion dollars in escrow under Carter’s supervision. In a ruling today (in LA Alliance for Human Rights v. County of Los Angeles), a unanimous panel of Ninth Circuit judges, all of whom were appointed by President Obama, has rejected Carter’s effort to appoint himself homelessness czar.

In her opinion for the panel, Judge Jacqueline Nguyen observes that Carter’s order “is premised on [his] finding that structural racism … is the driving force behind Los Angeles’s homelessness crisis.” But whether or not that is so, “none of Plaintiffs’ claims is based on racial discrimination, and the district court’s order is largely based on unpled claims and theories.” Further, the plaintiffs “failed to put forth evidence to establish standing,” and Carter “impermissibly resorted to independent research and extra-record evidence.”

Law & the Courts

Infra-DIG Diversion Gambit in Dobbs

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Infra dig (from the Latin infra dignitatem, meaning beneath one’s dignity) is an apt description of the anemic suggestion by the respondent abortionists in their merits brief in Dobbs v. Jackson Women’s Health Organization that the Court dismiss as improvidently granted—or DIG, in the Court’s jargon—the state of Mississippi’s certiorari petition.

Let’s put things in context:

1. When the Court granted certiorari in May, it specifically did so “limited to Question 1 presented by the [state’s] petition.” That Question 1 reads: “Whether all pre-viability prohibitions on elective abortions are unconstitutional.” (Emphasis added.)

Supreme Court Rule 14.1(a) expressly provides that “The statement of any question presented is deemed to comprise every subsidiary question fairly included therein.” The question whether “all pre-viability prohibitions on elective abortions are unconstitutional” necessarily implicates the question of what the proper constitutional standard is, which in turn “fairly include[s]” the questions whether Roe v. Wade and Planned Parenthood v. Casey are faithful to that standard, and, if they are not, whether they should be overturned.

Indeed, given Casey’s embrace of “the central holding of Roe” that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability”—“[r]egardless of whether exceptions are made for particular circumstances”—it is difficult to understand how anyone would fail to recognize that the question “Whether all pre-viability prohibitions on elective abortions are unconstitutional” presents at bottom the question whether Roe and Casey should be overturned. (The issue would be very different if Question 1 were limited to “Whether all pre-viability prohibitions on elective abortions are impermissible under Roe and Casey.”)

Respondents’ own argument—the one argument that I think they have right—that there are “no half-measures” available in Dobbs between overturning Roe and Casey, on the one hand, and applying and affirming them to invalidate Mississippi’s law, on the other, proves the point. The idea that the justices who voted to grant certiorari on Question 1 after many months of deliberation somehow did not understand what Question 1 entailed (even as they denied certiorari on the narrower questions that Mississippi’s petition presented) is ludicrous.

That is why the Court’s grant of certiorari on this question was widely and immediately understood to tee up Roe and Casey for overruling.

That is why the same-day New York Times article on the grant of certiorari was titled “Supreme Court to Hear Abortion Case Challenging Roe v. Wade” and prominently highlighted supporters of abortion rights who denounced the grant as “signaling a willingness to revisit Roe” (NYT’s summary) and as setting up “a test case to overturn Roe.”

That is why SCOTUSblog reported the same day that the case “could upend the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.”

That is why the Los Angeles Times editorial board stated the same day that the “enormously important” question in Dobbs meant that “There are basically two ways for the court to go: gut Roe vs. Wade or reaffirm it.”

That is why NARAL issued a same-day press release that declared that “There is no path for the Supreme Court to uphold Mississippi’s abortion ban without overturning Roe’s core holding.”

That is why an NBC News analysis the very next day stated that the certiorari “is a signal that the court is ready to overturn Roe v. Wade” and that Dobbs “lunges straight at [Roe’s] heart.”

Et cetera, et cetera.

2. To be sure, Mississippi argued in its petition that “the questions presented in this petition do not require the Court to overturn Roe and Casey” (emphasis added) but “merely … to reconcile a conflict in its own precedents.” But Mississippi went on to argue that if it would lose under Roe and Casey—if, that is, “the Court determines that it cannot reconcile Roe and Casey with other precedents or scientific advancements showing a compelling state interest in fetal life far earlier in pregnancy than those cases contemplate”—then the Court “should not retain erroneous precedent” (i.e., should overturn Roe and Casey).

The respondents complain that Mississippi “mentioned the notion [of overturning Roe and Casey] only in a threadbare footnote.” But that complaint ducks the fundamental point that the question is “fairly included” in the question on which the Court granted certiorari (and thus need not have been mentioned at all). And the complaint is also wrong, as the certiorari petition argued at length (see especially pp. 14-20) against the soundness of Roe and Casey. E.g.:

Roe’s viability line is arbitrary, constantly moves as medical knowledge increases, and fails to honor the reality that states have substantial interests of their own beginning “from the outset of the pregnancy.

The Court should grant the petition, hold that it is illogical to impose a “rigid line allowing state regulation after viability but prohibiting it before viability,” and uphold the Gestational Age Act.

[T]he Court should grant review and reject “viability” as the bright line for determining when a state may legislate to advance its substantial interests in health, safety, and dignity.

Roe’s viability rule is outdated.

In sum, the viability rule was created outside the ordinary crucible of litigation, failed to take account of the state’s accepted interest in maternal health and fetal pain, is increasingly out of step with other areas of the law, rejects science and common sense, and is shaky precedent at best. The Court should revisit it.

3. In City of San Francisco v. Sheehan (2015), the Court dismissed as improvidently granted a question on which the parties’ merits briefs were not in dispute. In so doing, the Court explained that the question “would benefit from briefing and an adversary presentation.”

At the risk of severe understatement, it is plain that no such concern is present here. Dozens of merits briefs, by the parties and their amici, have now been filed on both sides of the question whether Roe and Casey should be overruled.

In sum, there is no conceivable ground for DIGging Dobbs.

Law & the Courts

This Day in Liberal Judicial Activism—September 23

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

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), the Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

Law & the Courts

This Day in Liberal Judicial Activism—September 22

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Senator Barack Obama (D-IL) listens during a news conference in the Capitol in Washington on February 6, 2007. (Kevin Lamarque/Reuters)

2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.… [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

Law & the Courts

Does the EEOC Really Get to Decide Whether RFRA Applies in Employment-Discrimination Lawsuits?

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LGBTQ activists and supporters hold a rally outside the U.S. Supreme Court as it hears arguments in a major LGBT rights case on whether a federal anti-discrimination law that prohibits workplace discrimination on the basis of sex covers gay and transgender employees in Washington, U.S., October 8, 2019. (REUTERS/Jonathan Ernst)

Earlier this month, a federal district court in North Carolina rejected Charlotte Catholic High School’s religious defenses against a Title VII claim of sex discrimination allegedly based on an employee’s sexual orientation. The case, Billard v. Charlotte Catholic High School, was brought by Lonnie Billard, a male substitute drama teacher, who was fired “for his support of gay marriage” (contrary to Catholic doctrine) after he posted on Facebook about his upcoming civil marriage to another man.

The religious school was not willing to employ teachers who openly oppose Church teachings the school is responsible for imparting and modeling to its students. Indeed, the high school’s Catholic school system was consistent in its treatment of employees who openly flouted the Catholic Church’s teachings on marriage and sexual relations, whether or not they were homosexual. This included dismissing a male teacher for having an extra-marital affair, a male teacher for adopting a child with his same-sex partner, and a female teacher for planning to marry a divorced Catholic man who did not secure an annulment of his prior marriage from the Church.

The Catholic school argued that the Religious Freedom Restoration Act (RFRA) protected its right to select and employ substitute teachers who do not engage in conduct or publicly advocate positions contrary to Church doctrine. RFRA was passed in 1993 with overwhelming bipartisan support and signed into law by President Bill Clinton in the wake of the Supreme Court’s 1990 Employment Division v. Smith case that gutted First Amendment Free Exercise Clause protections. Under RFRA, the federal government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” except “if it demonstrates that application of the burden to the person—(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

The district court in Billard held that “RFRA does not apply to suits between purely private parties,” such as the one between Billard and Charlotte Catholic High School, citing several circuit and district courts that held RFRA’s protections are only available if the federal government is a party. The district court, however, noted that the Fourth Circuit, which handles appeals from North Carolina federal district courts, has not yet decided the issue.

The dispute over when RFRA applies is based on how best to interpret the statutory text. The Billard court (and others) point to two phrases. First, RFRA permits a person whose religious exercise has been burdened to raise a claim or defense “in a judicial proceeding and obtain appropriate relief against a government” (emphasis added). Second, a burden on religious exercise is permitted only if the government demonstrates a compelling interest achieved by the least restrictive means. “Demonstrates” is defined as “meet[ing] the burdens of going forward with the evidence and of persuasion.” Taken together, both of these phrases, according to the court, contemplate a scheme only where the government is a party, presenting evidence and argument in court and against which relief must be obtained.

The other side points to RFRA’s sweeping language. RFRA “applies to all Federal law, and the implementation of that law.” “Government” includes any “branch, department, agency, instrumentality, and official (or other person acting under color of law) of the United States.” Its stated purposes are “to provide a claim or defense to persons whose religious exercise is substantially burdened by government” and to apply “in all cases.” Notably, defenses do not provide relief against the government (or otherwise). They merely defeat liability or the application of the law to the defendant.

Who is burdening Charlotte Catholic High School’s exercise of religion: Billard or the government? Here, it is the government in the form of potential court enforcement of Title VII liability. In response to that burden, the school raised an RFRA defense, claiming there was no compelling government interest in forcing it, under penalty of court sanctions and court-awarded damages, to retain teachers who publicly oppose Catholic teachings on marriage.

Ironically, the very case that gave Billard his cause of action — Bostock v. Clayton County — specifically described RFRA as a “super statute” that “might supersede Title VII’s commands in appropriate cases.” Yet Billard failed to address the Supreme Court’s pronouncement, which calls into question the pre-Bostock RFRA cases the court relied on. What are “appropriate” Title VII cases if not teachers at religious schools?

Under Billard’s reasoning, if the Equal Employment Opportunity Commission (EEOC) — the federal agency charged with enforcing Title VII and other laws prohibiting employment discrimination — had sued on behalf of the teacher, RFRA would be available as a defense.

To bring a Title VII claim in federal court, an employee (or applicant) must first file a charge of discrimination with the EEOC. The employer is required to issue a position statement in response and will often include any applicable defenses. If the EEOC finds that reasonable cause exists for the employee’s discrimination claim, the EEOC will try to conciliate the case with the employer, at which point an employer claiming an RFRA defense would likely raise it. If the case does not settle, the EEOC would choose either to file a lawsuit against the employer or issue a notice of right sue to the employee (a necessary step before employees can sue on their own in federal court under Title VII).

Consider three different scenarios, all of which involve the same claim of employment discrimination against a religious employer.

  1. EEOC sues on behalf of the employee.
  2. EEOC sues and the employee intervenes as a private-party plaintiff.
  3. EEOC issues a notice of right to sue, and the employee sues as a private-party plaintiff.

According to Billard, the religious employer could raise an RFRA defense in the first two scenarios, but not the third. Notably, there is no suggestion that the RFRA defense applies unequally in mixed-party suits, such that RFRA would apply only to the federal government and not to the private-party plaintiff.

But can an employer’s rights to religious freedom and an employee’s rights to nondiscrimination really be a function of which party sues on behalf of the alleged injured employee? Or more specifically, whether the EEOC sues?

Under Billard, if the EEOC brings or intervenes in a lawsuit on behalf of an employee, and the court recognizes an RFRA defense, then the employee loses the nondiscrimination claim. But if the EEOC declines to bring a lawsuit where the religious employer could have brought a successful RFRA defense, then the employer loses its rights to religious exercise. That can’t be right. Otherwise, the EEOC could put its thumb on the scales and purposely avoid becoming a party in lawsuits against religious employers to deprive them of a potentially winning RFRA defense.

Instead, RFRA should be available “in all cases” as a defense whenever the government substantially burdens religious exercise through “all Federal law, and the implementation of that law” — regardless of whether the government is a party to the lawsuit. After all, it is the federal courts themselves that would ultimately impose the substantial burdens on religion — here, in the form of Title VII liability and damages as the district court held.

Law & the Courts

Ruth Marcus on How to Lobby Justice Kavanaugh

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In the Washington Post, Ruth Marcus offers very mixed criticism of the abortion activists who marched on Justice Kavanaugh’s home last week “to protest his vote allowing the Texas abortion law to take effect.”

On the one hand, Marcus says that the protesters “were within their rights” (that’s far from clear) and that she is “aggrieved by Kavanaugh’s vote, too.” (Never mind that his vote against emergency relief on procedural grounds was clearly correct.) She even implausibly compares their protest at his home to the annual March for Life on Constitution Avenue.

On the other hand, Marcus acknowledges that it’s “intimidating, even terrifying, to have people turn up at your home”—a “kind of bullying [that] goes too far.” Plus, in what Marcus seems to regard as the decisive factor, “[i]t’s also, in the case of Kavanaugh and the court, apt to be counterproductive,” especially regarding the pending Mississippi abortion case.

Much like law professor Noah Feldman’s pitch to Kavanaugh to “become the new Kennedy,” Marcus presents Kavanaugh as someone who, above all, “wants to be liked and admired,” who wants to “win plaudits from those [in the legal establishment] whose acceptance he still craves.”

What a demeaning depiction. But it gets worse. Marcus also posits that Kavanaugh might “want[] to avoid deciding the Mississippi case in a way that [she thinks] would likely hurt Republicans in the midterm elections a few months later.”

I’ll repeat basically what I said in response to Feldman’s plea: I expect that Kavanaugh’s jurisprudential principles, including the discussion of precedent that he set forth in his concurrence in Ramos v. Louisiana (2020), will lead him to reject Roe v. Wade and Planned Parenthood v. Casey and that he will strive in Dobbs v. Jackson Women’s Health Organization, just as in other cases, to do his constitutional duty to rule based on the law, not to feed his ego or do political favors.

Law & the Courts

Badly Botched ‘Originalist Case for an Abortion Middle Ground’

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Last week, law professor Aaron Tang posted a long article titled “The Originalist Case for an Abortion Middle Ground.” In that article, Tang disputes the proposition that, “at the time of the Fourteenth Amendment’s enactment, 27 of the 37 states in the union prohibited abortion at all points in pregnancy.” The actual number, he argues, was 15.

Tang somehow imagines that his argument, if it were correct, would undermine the predominant originalist position against a constitutional right to abortion. But he badly misunderstands that position.

To state the matter most simply, the originalist proposition that the states have the authority to prohibit elective abortion does not depend at all on whether 27 or 17 or seven states prohibited abortion from conception at the time the 14th Amendment was enacted. Under standard originalist methodology, any of those counts would place on proponents of a constitutional right to abortion a very high burden of demonstrating that the original public meaning of the 14th Amendment somehow disallowed those state laws. To be sure, the higher the number, the more patently ridiculous the originalist argument for a right to abortion is. But Tang is simply wrong to posit that the originalist argument against a right to abortion depends on what he calls the “27-states claim.”

When a state chooses to allow an action, it does not ordinarily imply that it lacks the power to prohibit the action. By contrast, when it chooses to bar an action, it ordinarily conveys its belief that it has the power to do so.

In other words, even if Tang were right that, at the time the 14th Amendment was ratified, there were 22 states in which “pregnant persons [sic] were free to obtain an abortion at any time before quickening,” he’s utterly wrong to think that that datum ought to lead originalists to conclude that the 14th Amendment protects a constitutional right to abortion before quickening. If, by his count, 15 states then had laws that barred abortion “at all points in pregnancy,” that establishes a very strong presumption that the 14th Amendment allowed such laws.

What’s more, if the 14th Amendment somehow protected a constitutional right to abortion before quickening, you’d expect that the states that had pre-quickening bans would, immediately after ratification, eliminate those bans. Instead, the trend was in the opposite direction: States that had in place the common-law ban on abortion post-quickening enacted statutes that barred abortion from conception.

In any event, it appears that Tang has gotten his history badly wrong. In a “preliminary rejoinder,” law professors John Finnis and Robert P. George offer what appears to be a devastating demolition of Tang’s claims. Working their way alphabetically through the states in which Tang says that there is “clear [and] specific historical evidence” that the states did not forbid pre-quickening abortion, they rebut Tang’s claims and identify one gross misrepresentation after another. Their bottom line:

To our surprise, Tang’s essay sadly outdoes the articles of Cyril Means on which Roe relied. Just as partisan, the new essay is conceptually even more confused and historically even more error-strewn, at all levels of generality, from big picture to granular case law.

(Finnis and George, I’ll note, argue not merely that the 14th Amendment allows states to prohibit elective abortion from conception but that it compels states to do so.)

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This Day in Liberal Judicial Activism—September 21

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Election officials canvass absentee ballots received on Election Day at a central count facility in Kenosha, Wis., November 3, 2020. (Daniel Acker/Reuters)

2020—In Democratic National Committee v. Bostelmann, federal judge William M. Conley rules that the coronavirus pandemic entitles him to extend various statutory deadlines in Wisconsin election law, including the deadline for online and mail-in registration and for the receipt of mailed ballots. Two weeks later, a Seventh Circuit panel will stay Conley’s order.

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Woke Federal Court Staff Wanted

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You might think that those who administer the federal courts would be keen to attract staffers who could be trusted to carry out their duties impartially. But the Fourth Circuit, in its announcement for a position of appeals case manager, somehow sees fit to state that it “prides itself on being a collegial, collaborative, and progressive organization” and that it wants “strong candidates who share our vision and passion.”

Further, rather than providing the customary assurance that it is an “equal opportunity employer” that does not “discriminate” against applicants based on race or various other grounds, the hiring office states that it is “an Equal Opportunity Employer that values diversity and inclusion.” It thus signals that it will discriminate against applicants in order to advance those “values” of “diversity and inclusion.”

Given the hijinks and bias that have occurred in federal judicial administration, I can’t say that I’m surprised. If only judicial bureaucrats were content to “make[] a difference in administering justice” by being impartial and efficient.

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Texas Abortionist Seeks Test Lawsuit Under Heartbeat Act

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In a Washington Post op-ed, Alan Braid, an abortionist in San Antonio, says that he recently “provided an abortion to a woman who, though still in her first trimester, was beyond the state’s new limit” under the Texas Heartbeat Act. He says that he did so in order “to make sure that Texas didn’t get away with its bid to prevent this blatantly unconstitutional law from being tested.”

For three reasons, no one should sue Braid to give him the imagined test case that he is seeking. In ascending order of importance:

1. It’s not at all clear that Braid is actually admitting to have violated the Act. He states that the Texas Heartbeat Act “virtually banned any abortion beyond about the sixth week of pregnancy” and that his recent abortion “was beyond the state’s new limit.” But rather than imposing a time limit, the Act forbids a physician from “perform[ing] or induc[ing] an abortion on a pregnant woman if the physician detected a fetal heartbeat for the unborn child.” (Emphasis added.) I don’t know whether Braid’s language is cagey or sloppy, but it leaves open the possibility that he conducted the required test for the fetal heartbeat but did not detect one. Indeed, his abortion clinic maintains that it is “compliant” with the Act and therefore “cannot provide abortion services to anyone with detectable embryonic or fetal cardiac activity.”

2. It makes no sense for a private person to bring a civil enforcement action under the Act against Braid or any other suspected violator until the Supreme Court has overruled Roe v. Wade and Planned Parenthood v. Casey. Until such overruling — which ought to happen by the end of June 2022 — a lawsuit is bound to fail. (To be clear, it’s not that the Act is actually unconstitutional; it’s instead that it conflicts with the flagrantly unconstitutional holdings of Roe and Casey.) The Act provides a four-year statute of limitations, so there is no point in racing to court before that overruling occurs.

3. In its complaint against the state of Texas, the U.S. Department of Justice contends that private persons who enforce the Act are “agents” of Texas. That contention, which is likely to fail under Fifth Circuit precedent, opens the way for DOJ to bring civil and criminal actions against private civil enforcers for acting “under color of law” to deprive individuals of constitutional rights. Indeed, law professor Laurence Tribe has specifically recommended that DOJ do so. Rather than sue now and expose oneself to those risks and the costs of defending against them, a private enforcer would be far more prudent to wait until DOJ’s action against Texas has failed.

All that said, Braid is wrong to imagine that a “test case” would give him or other abortionists any meaningful relief. What is deterring them from providing post-heartbeat abortions is the prospect of crushing liability for damages for abortions done between now and the time that Roe and Casey are overturned. Even if Braid were to win a lawsuit against him (as I expect he would) for his recent abortion, that victory would do nothing to alter that prospect. The court couldn’t enjoin any of the millions of other potential private enforcers from filing lawsuits down the road. Indeed, Braid would remain liable to another private enforcer even for that same abortion. (The Act makes explicit the ordinary rule that claim preclusion would not operate against persons who were not parties to the first case.)

Law & the Courts

This Day in Liberal Judicial Activism—September 20

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(AMAYRA/iStock/Getty Images)

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional.

Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

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This Day in Liberal Judicial Activism—September 19

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The White House in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

Law & the Courts

This Day in Liberal Judicial Activism—September 18

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U.S. Court of Appeals for the Ninth Circuit (legalnewsline.com)

2017—Evidently unhappy that a criminal defendant wasn’t making sweeping attacks on the statute under which she was convicted, a Ninth Circuit panel presided over by Stephen Reinhardt issues an extraordinary order, months after oral argument, inviting three left-wing organizations to file amicus briefs that make those attacks.

In May 2020, the Supreme Court, in a unanimous opinion by Justice Ginsburg (in United States v. Sineneng-Smith), will determine that the Ninth Circuit panel “departed so drastically from the principle of party representation as to constitute an abuse of discretion.” Ginsburg faults the panel for its “takeover of the appeal,” for intervening to displace the arguments made by “competent counsel” on Sineneng-Smith’s behalf and to substitute instead a “radical transformation” of the case that “goes well beyond the pale.”

2019—In an action filed by a suspected Al Qaeda-associated terrorist to obtain information related to the CIA’s covert activities in Poland, a divided panel of the Ninth Circuit (in Husayn v. United States) directed the district court to try to “disentangle” information that supposedly wasn’t protected by the state-secrets privilege from that which was.

In July 2020, twelve judges will dissent from the Ninth Circuit’s refusal to rehear the appeal en banc. As Judge Daniel Bress sums things up:

The serious legal errors in the majority opinion, and the national security risks those errors portend, qualified this case for en banc review. The majority opinion treats information that is core state secrets material as fair game in discovery; it vitiates the state secrets privilege because of information that is supposedly in the public domain; it fails to give deference to the CIA Director on matters uniquely within his national security expertise; and it discounted the government’s valid national security concerns because the discovery was only sought against government contractors—even though these contractors were the architects of the CIA’s interrogation program and discovery of them is effectively discovery of the government itself.

Law & the Courts

This Day in Liberal Judicial Activism—September 17

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Washington as Statesman at the Constitutional Convention (Junius Brutus Stearns, Image via Wikimedia)

A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

2020Pennsylvania law requires mail-in and absentee ballots to be returned no later than 8:00 p.m. on Election Day. Acknowledging that “there is no ambiguity regarding the deadline and that “there is nothing constitutionally infirm” about it, a narrow majority of the Pennsylvania supreme court nonetheless rules (in Pennsylvania Democratic Party v. Boockvar) that the coronavirus pandemic justifies a three-day extension of the deadline.

Law & the Courts

IWF Report on Transgender Threat to Girls’ and Women’s Sports

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The Independent Women’s Forum has issued a comprehensive new report on how allowing males who ID as female to take part in girls’ and women’s sports “undermines Title IX,” “put[s] female athletes at a significant competitive disadvantage,” and in some cases “will deny female athletes the opportunity to compete at all.”

The report, titled “Competition: Title IX, Male-Bodied Athletes, and the Threat to Women’s Sports,” “summarize[s] American law regarding sex discrimination and athletics, analyze[s] the evidence regarding physiological sex differences and the male-female athletic gap, and review[s] testimony from just a few of the many females who have competed with or against male-bodied athletes. It is a valuable resource for anyone interested in this important matter.

(Disclosure: After a colleague highly recommended the report to me, I was pleased to discover that one of its six co-authors is my daughter-in-law.)

Law & the Courts

‘Like a Classic Clown Bop Bag’

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Here’s the opening paragraph of Ninth Circuit judge Sandra Ikuta’s dissent today in Chamber of Commerce v. Bonta:

Like a classic clown bop bag, no matter how many times California is smacked down for violating the Federal Arbitration Act (FAA), the state bounces back with even more creative methods to sidestep the FAA. This time, California has enacted AB 51, which has a disproportionate impact on arbitration agreements by making it a crime for employers to require arbitration provisions in employment contracts. And today the majority abets California’s attempt to evade the FAA and the Supreme Court’s caselaw by upholding this anti-arbitration law on the pretext that it bars only nonconsensual agreements. The majority’s ruling conflicts with the Supreme Court’s clear guidance in Kindred Nursing Centers Ltd. Partnership v. Clark (2017), and creates a circuit split with the First and Fourth Circuits. Because AB 51 is a blatant attack on arbitration agreements, contrary to both the FAA and longstanding Supreme Court precedent, I dissent. [Some citations omitted or simplified.]

The majority opinion is by Judge Carlos Lucero, visiting from the Tenth Circuit, joined by Judge William Fletcher.

Mark this one for Supreme Court reversal. (Even then-Governor Jerry Brown vetoed similar previous versions of AB 51 on the ground that they were contrary to Supreme Court precedent.) I doubt that the Chamber of Commerce and the other plaintiff business associations will waste their time seeking en banc review in the Ninth Circuit.

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Judiciary Republicans Confront Ideologues in Contentious Hearing

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President Joe Biden delivers remarks about Afghanistan, from the East Room of the White House in Washington, D.C., August 26, 2021. (Jonathan Ernst/Reuters)

Yesterday the Senate Judiciary Committee held a hearing for two circuit nominees, Jennifer Sung for the Ninth Circuit and Beth Robinson for the Second Circuit. They are just two more examples of ideologues nominated by the current president, and committee Republicans deserve kudos for bringing that out.

Jennifer Sung is actually the second Biden circuit nominee to have worked at the Brennan Center, a left-wing dark-money organization, where she spent two years as a Skadden Fellow. (I previously covered the other nominee, Myrna Pérez, who was picked for the Second Circuit after spending most of her career at the Brennan Center.) During Brett Kavanaugh’s nomination to the Supreme Court, Sung signed an incendiary letter to the Yale Law School administration with a number of outrageous statements. Chief among them: calling Kavanaugh, based on his rulings as a D.C. Circuit judge, “an intellectually and morally bankrupt ideologue” and asserting that “people will die if he is confirmed.”

When Senator Tom Cotton asked Sung why she thought Kavanaugh was a “morally bankrupt” man, she described the letter’s statements as “overheated rhetoric, but they were rhetorical advocacy,” and she apologized if they “created the impression that I would fail to respect Justice Kavanaugh’s authority as a Supreme Court justice.”

“Has anyone died as a direct result of Brett Kavanaugh being confirmed to the Supreme Court?” Cotton asked pointedly.

Sung repeated her “rhetorical advocacy only” line. That she was giving a canned response was clear after she repeated that line over and over again as she dodged one Republican senator after another — Ted Cruz, John Kennedy, and Mike Lee — asking her specifically whether she believed what she signed.

So is “overheated rhetoric” okay because it is done in the service of “rhetorical advocacy”? Is such a view remotely reflective of a judicial temperament? Such statements do not occur in a vacuum. The night before the hearing, demonstrators gathered outside Kavanaugh’s home engaging in “rhetorical advocacy” in what can only be interpreted as an act of intimidation against a sitting Supreme Court justice. Senator Chuck Grassley took note of that intimidation during the hearing. The “rhetorical advocacy” of 2018 is not over and forgotten. It’s still around perpetuating the bullying and smears.

Several of the Republican senators called Sung out on her lack of judicial temperament, and Kennedy was especially blunt about her evasiveness. To her line that she “would absolutely respect” the authority and precedents of the Supreme Court, he replied:

I don’t believe you. I think you allowed your political beliefs to cloud your judgment, and I think you said a few years ago what you said about Brett Kavanaugh, and I think you believe it. And I can’t imagine what it’s going to be like to be a litigant in front of you, with that demonstration of lack of judicial temperament and judgment. How can a litigant possibly think that you’re not going to act on personal beliefs if you were so intemperate to say something like this?

Beth Robinson for her part raised red flags about her hostility to religious freedom. She had a reputation as an activist lawyer before joining the Vermont supreme court. As an attorney, she represented a woman who during the 1990s sued a printer under a state antidiscrimination law for refusing to print membership cards she made for a group called Vermont Catholics for Free Choice, which opposed the church’s stance on abortion. Malcolm and Susan Baker, the Catholic couple who owned the printer, followed Church teaching and therefore declined to process the order.

That sounds a lot like a case involving a small-b baker, the future Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. Robinson’s brief for the plaintiff was hostile to the Bakers’ religious views on a level comparable to the Colorado officials whose conduct earned them seven votes against them, including those of Justices Stephen Breyer and Elena Kagan. As Senator Ted Cruz noted, Robinson’s brief referred to the couple’s views as “invidious” and “pernicious.” When he asked the nominee about those statements, she dug herself into a hole by citing Employment Division v. Smith as the operative precedent, the notably less protective free-exercise precedent whose future is in doubt after the Court’s last term, while ignoring the more on point Masterpiece Cakeshop.

Senator Josh Hawley pursued a similar line of questioning, adding a reference to Robinson’s comparison between the Bakers’ pro-life views and racial discrimination. The nominee failed to answer his question on whether she stands by such a comparison. On the applicable jurisprudence, Hawley specifically asked her about Masterpiece Cakeshop, and she dug herself into a deeper hole by dismissing the applicability of that precedent while returning to Smith as the applicable law from which the Court, in her view, “hasn’t backed away.”

The Republican senators’ questions were probing and effective in highlighting the nominees’ ideological obtuseness and (in Sung’s case) temperamental unfitness for the bench. Yesterday’s hearing underscored just how extreme Joe Biden’s judicial nominees are turning out to be, in contrast to his campaign pledge of moderation and unity. No doubt the left-wing dark-money groups who spent hundreds of millions of dollars to elect him are delighted.

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DOJ Motion for Injunctive Relief in Texas Heartbeat Act Litigation — Some Observations

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Late on Tuesday evening, the U.S. Department of Justice filed its motion for injunctive relief against the state of Texas in its lawsuit over the Texas Heartbeat Act. A few observations:

1. DOJ maintains that it has broad authority to seek “equitable relief to protect interests of the federal government, notwithstanding the absence of express statutory authority to do so.” It argues that the “unique circumstances presented here — including, most notably, S.B. 8’s deliberate attempt to thwart ordinary mechanisms of federal judicial review through a congressionally conferred cause of action — distinguish this case from past cases where courts have held that the mere fact that federal constitutional rights are being violated does not necessarily authorize the United States to sue.” (See pp. 22–28.)

Texas will surely vigorously contest DOJ’s position on this issue. This will likely be a major focus of the dispute, both before federal district judge (and Obama appointee) Robert L. Pitman and on appeal in the Fifth Circuit. It’s a safe bet that Pitman will agree with DOJ and adopt its proposed order. It’s far less clear to me that the Fifth Circuit will do so.

2. Any injunctive relief that Pitman provides will likely be of little or no use to abortion providers in Texas unless and until there is a final ruling from the Fifth Circuit (or Supreme Court) that affirms Pitman’s order. If the injunctive relief is vacated on appeal (including by the en banc Fifth Circuit), the abortion providers will remain liable for any post-heartbeat abortions that they do in the interim. The Texas Heartbeat Act specifically provides that “a defendant’s reliance on any court decision that has been overruled on appeal or by a subsequent court, even if that court decision had not been overruled when the defendant engaged in conduct that violates [the Act],” is not a defense to liability under the Act. Any challenge (on due-process or other grounds) to the operation of this provision strikes me as baseless. Thus, the liability concerns that that have evidently led abortion providers not to violate the Act should remain essentially unchanged in the interim.

3. Indeed, the injunctive relief that DOJ seeks — even if ultimately affirmed — would not provide abortion providers any protection against private lawsuits brought in federal court by residents of other states under federal diversity jurisdiction. To be sure, plaintiffs invoking a federal court’s diversity jurisdiction (unlike plaintiffs in state court) would have to satisfy federal standing requirements and the $75,000 amount-in-controversy requirement. But there may well be plenty of plaintiffs — e.g., prospective adoptive couples who assert that abortion is harming their ability to adopt a baby from Texas — who could plausibly allege injury in fact. And it takes at most eight violations — and probably no more than two or three, given that the statutory damages of “not less than $10,000” applies to every violator — to meet the amount-in-controversy requirement. So the abortion providers’ liability concerns might well remain even if DOJ is victorious in this case.

Law & the Courts

Footnote Conflict on ‘Pregnant Woman’

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Footnote 2 in Judge Martha Craig Daughtrey’s majority opinion (joined by Judge Karen Nelson Moore) in Sixth Circuit panel’s divided ruling last Friday in Memphis Center for Reproductive Health v. Slatery:

We use the word “patient” or “person” instead of “woman” where possible, to be inclusive of transgender and non-binary individuals, who also can become pregnant.

Footnote 3 in Fifth Circuit’s unanimous per curiam opinion (Judge Edith H. Jones, Judge Stuart Kyle Duncan, and Judge Kurt Engelhardt) last Saturday in Whole Woman’s Health v. Jackson:

The district court felt moved to “note that people other than those who identify as ‘women’ may also become pregnant and seek abortion services.” This notion, whatever it might mean, ignores that the law applies only to “an abortion on a pregnant woman.” [Citations omitted.]

Law & the Courts

This Day in Liberal Judicial Activism—September 15

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(Dreamstime)

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2000—Declaring that a right to abortion “is inherent in the concept of ordered liberty,” the Tennessee supreme court (in Planned Parenthood v. Sundquist) rules that informed-consent provisions and various other state-law regulations of abortion violate the state constitution.

 2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

Law & the Courts

DOJ Lawsuit Against Texas Heartbeat Act—A Quick Overview

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Last Thursday, the U.S. Department of Justice, on behalf of the United States, filed suit against Texas over the Texas Heartbeat Act. (For background on the broader controversy, read my posts on the litigation brought by abortion providers against the Act and the Supreme Court’s denial of their request for emergency relief.)

The complaint alleges that the Act has inflicted irreparable injury on the United States in two different respects. First, under a parens patriae theory, the complaint alleges that the Act “injures the United States by depriving women in Texas of their constitutional rights while seeking to prevent them from vindicating those rights in federal court.” (See pp. 15-16.) Second, the complaint alleges that the Act “unconstitutionally restricts the operations of the federal government” (see pp. 16-24)—in particular, the Department of Labor’s Job Corps Program (pp. 16-19), the Office of Refugee Resettlement (p. 19), the Bureau of Prisons (pp. 19-21), the Centers for Medicare and Medicaid Services (pp. 21-22), the Office of Personnel Management (pp. 22-23), and the Department of Defense (pp. 23-24).

The complaint presents three counts: “Supremacy Clause—Fourteenth Amendment” (pp. 24-25), “Preemption” (pp. 25-26), and “Violation of Intergovernmental Immunity” (p. 26).

At DOJ’s request, the case has been assigned to Judge Robert L. Pitman, the Obama appointee handling the litigation brought by abortion providers against the Act. (That litigation is now pending on appeal before the Fifth Circuit on jurisdictional questions.)

Some preliminary observations:

1. The complaint does not undertake to identify the specific causes of action that might underlie its counts. It instead asserts generically that the federal district court “has authority to provide the relief requested under the Supremacy Clause, U.S. Const. art. VI, cl. 2, the Fourteenth Amendment to the U.S. Constitution, 28 U.S.C. §§ 1651, 2201, and 2202, and its inherent equitable authority.” Whether and to what extent any of these sources actually creates a cause of action for a particular claim in DOJ’s complaint will likely be a central matter of dispute in the case.

I’ll briefly illustrate the point with respect to the complaint’s first count. As the Supreme Court made crystal clear just a few years ago (in Justice Scalia’s majority opinion in Armstrong v. Exceptional Child Center (2015)), the “Supremacy Clause is not the source of any federal rights and certainly does not create a cause of action.” (Emphasis added, citations omitted, and cleaned up.) Further, the Fourteenth Amendment does not itself create a cause of action but instead only gives Congress the power to enforce its provisions “by appropriate legislation.” So DOJ will need to establish that one of the other authorities it identifies confers a cause of action regarding the injury that it alleges here. It’s not at all clear that it will be able to do so.

2. The relief potentially available to DOJ would seem to differ considerably depending on whether it is aimed to address the federal government’s asserted parens patriae injury or the injury resulting from alleged interference with the federal government’s operations. In the latter case, it might well be enough (if the court were to agree with DOJ) to exempt the federal government’s operations from the application of the Act.

3. DOJ has not yet filed a motion for preliminary-injunctive relief. Once expedited briefing is complete on such a motion, it’s a safe bet that Judge Pitman will give DOJ whatever relief it requests. The real action will be in the Fifth Circuit, including on the threshold question whether to block Pitman’s order pending appeal.

4. One big-picture point: Nothing in DOJ’s claim to have a right to sue to redress its supposed parens patriae injury hinges on the private civil-enforcement provisions of the Act. Thus, if DOJ were to prevail, that would open the door wide to DOJ’s bringing all sorts of individual-rights constitutional claims against whatever state laws offend the current Administration. DOJs in Republican administrations would sue predominantly “blue” states over such matters as gun regulations and racial preferences, while DOJs in Democratic administrations would sue predominantly “red” states on behalf of liberal causes. The end result would be a dramatic escalation in the politicization of DOJ.