Law & the Courts

This Day in Liberal Judicial Activism—March 17

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 15

(Tim Sloan/AFP/Getty)

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

2016—No plaintiff? So what?

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

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

Law & the Courts

The Judicial-Confirmation Process Is Much Different Today under President Trump

President Donald Trump talks to reporters in Washington, D.C., March 8, 2019. (Jonathan Ernst/REUTERS)

The Senate yesterday confirmed Neomi Rao to the U.S. Court of Appeals for the D.C. Circuit. She’s exactly the kind of impartial judge that we need across the judiciary. That makes 91 judges overall, and 36 to the federal appeals court, since President Donald Trump took office.

Whatever those numbers mean on their own, the fact is that Trump’s judicial nominees are being treated very differently than those of previous presidents.

Those 91 judges, for example, have received a total of 1,824 votes against their confirmation in 782 days. When Barack Obama was president, it took 2,123 days to rack up this many negative votes, and he had to appoint 282 judges to do it.

Trump’s 91 judges have received more negative confirmation votes than the 2,653 judges confirmed to the same courts during the entire 20th century combined.

Let’s look at this another way. Obama appointed 16 judges to the U.S. Court of Appeals during his first two years, when his own party controlled the Senate. Each of those nominees had a confirmation vote, and only two also had a separate vote to invoke cloture, or end debate.

With 41 Republicans in the Senate, that’s a total of 738 opportunities on the Senate floor for a Republican to vote for an Obama nominee. Republicans took 556 of those opportunities, or 75 percent.

Trump had appointed 16 judges to the U.S. Court of Appeals by May 2018, when his own party controlled the Senate. Each of those nominees had a confirmation, and all 16 also had a separate cloture vote. With 48 Democrats in the Senate in 2017 and 49 in 2018, that’s a total of 1,544 opportunities for a Democrat to vote for a Trump nominee. Democrats took 259 of those opportunities, or 17 percent. Not even close.

You might think that, well, Obama’s nominees must have been more qualified than Trump’s. Not according to the American Bar Association. Nine of each president’s nominees received a unanimous well qualified rating, but five other Trump nominees received at least a majority well qualified rating, compared to just one Obama nominee. Since several studies (hereherehere, and here) have found that the ABA is systematically biased against Republican nominees, that really puts Trump’s nominees ahead.

Shifting from the votes that nominees receive to the votes that senators cast, the average Democrat has voted against 36 of the 91 judges Trump has appointed so far. This compares to the average Republican voting against six of the first 91 judges Obama appointed.

No matter how you slice or dice it, no matter what measure or standard you use, the judicial confirmation process today is radically different than it was just a few years ago.

Law & the Courts

This Day in Liberal Judicial Activism—March 14

Self-portrait of Elton Simpson (ABC News)

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

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

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

Law & the Courts

Ninth Circuit Nominee Daniel Bress’s Robust Ties to California

President Trump has nominated Daniel A. Bress to the Ninth Circuit seat vacated by Alex Kozinski. According to this article (subscriber-only), Senator Dianne Feinstein, the ranking Democrat on the Senate Judiciary Committee, intends to oppose the Bress nomination on the ground that Bress supposedly has “so little connection” to California. And committee chairman Lindsey Graham has at least tentatively seconded Feinstein’s concerns.

A review of Bress’s actual ties to California (which I have drawn in large part from a close friend of Bress’s as well as from his Senate questionnaire response) indicates that Feinstein’s concern is ill-founded:

Bress was born and raised in Gilroy, California, the “Garlic Capital of the World,” and he retains strong family ties there. After his clerkships with Judge J. Harvie Wilkinson and Justice Scalia, he began his career in private practice in San Francisco (where he had also worked during his two summers in law school), and he has been a member of the California bar throughout his career.

Bress has done more work in California courts than anywhere else, and he has continuously had California cases on his docket in private practice. He maintains an office in San Francisco as well as in D.C., and he spends a lot of time in California. Further, a major reason that Bress moved back to the D.C. area after his initial stint in California was to accommodate his wife’s career aspirations. (Is Feinstein really going to punish him for that?)

In addition to work on a number of Ninth Circuit cases, Bress has handled major consumer class actions in federal district court in California in the Northern, Eastern, and Central Districts. He has also had an active practice in the state-court system in California, with work on more than twenty cases. He handled an important appeal pro bono on behalf of parents seeking a charter school conversion under California’s Parent Empowerment Act. He also did significant work in state court in California on behalf of BASF in connection with allegations of asbestos exposure from a talc product; that work included arguing an appeal in the California Court of Appeal. He has argued extensively in California trial courts in Oakland, San Jose, and Los Angeles, and has also been involved in cases in San Francisco, Fresno, and Butte County.

In sum, Bress has robust ties to California.

Law & the Courts

Federal Courts of Appeals by Party of Appointing President

With the Senate’s confirmation yesterday of Paul Matey’s nomination to the Third Circuit, that court will become (or has become, if Matey has already been appointed) the first federal court of appeals to flip from a majority of Democratic appointees to a majority of Republican appointees. It will have seven Republican appointees, six Democratic appointees, and one pending vacancy.

The party-of-appointing-president metric is admittedly an imperfect proxy for judicial philosophy/ideology. Also, because the courts of appeals, apart from the occasional en banc matter, usually decide cases in panels of three judges, it generally doesn’t matter much whether a court that is roughly evenly divided has a majority of judges appointed by presidents of one party or the other.

But because there is interest in this metric, I figured I’d pass along the current numbers, as I calculate them (and with some noted adjustments), along with some other comments.

CA1: 2 R, 4 D

CA2: 4 R, 7 D, with two existing vacancies and one future vacancy (could become 6 R, 7 D)

CA3: 7 R, 6 D, 1 V

CA4: 6 R, 9 D*

CA5: 11 R, 5 D, 1 V

CA6: 10 R, 6 D**

CA7: 9 R, 2 D

CA8: 10 R, 1 D

CA9: 8 R, 16 D, 5 V (will become 12 R, 16 D, 1 V if/when pending nominees are confirmed)

CA10: 5 R, 7 D

CA11: 6 R, 6 D

CADC: 4 R, 7 D (I’m counting in Neomi Rao, who was confirmed today)

CAFedCir: 4 R, 8 D

* I’m counting Roger Gregory as a D. President Clinton recess-appointed Gregory to the court, and President George W. Bush, in an unrequited act of goodwill, then gave Gregory a lifetime appointment.

** I’m counting Helene White as a D. President Clinton originally nominated her, and Senate Democrats struck a package deal with President Bush that led him to appoint her.

Law & the Courts

This Day in Liberal Judicial Activism—March 13


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

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

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

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

Law & the Courts

Mitch McConnell Didn’t Break Filibuster Norms

Senate Majority Leader Mitch McConnell speaks with reporters following leadership elections at the U.S. Capitol in Washington, D.C., November 14, 2018. (Aaron P. Bernstein/Reuters)

In a recent series of tweets, American Enterprise Institute scholar Norman Ornstein made some assertions about the judicial-confirmation process that should not go unchallenged.

He tweeted that, prior to November 2013, then-Senate minority leader Mitch McConnell (R-Ky.) “singlehandedly broke the norms and altered the way the filibuster had been used, making it a fulltime weapon of mass obstruction.” He does not say what those norms were nor how McConnell singlehandedly broke them.

Senate Rule 22 provides a formal process to invoke cloture, or end debate, on a matter pending before the Senate. The Senate votes on a motion to invoke cloture two days after it is filed. Since 1975, Rule 22 has required “three-fifths of the Senators duly chosen and sworn,” or 60 votes, to invoke cloture and a filibuster occurs if that threshold is not met. In November 2013, Senate Democrats used a parliamentary ruling to reinterpret “three-fifths” in Rule 22 to mean “simple majority,” effectively abolishing nomination filibusters.

Between 1949, when Rule 22 could apply to nominations, and 2000, the Senate confirmed more than 2000 judges but took just 12 cloture votes. Only four of those cloture votes failed, resulting in filibusters, but only one of those nominees was never confirmed.

The norm prior to 2001, therefore, was that the filibuster was part of the legislative, but not the confirmation, process. In early 2001, Senate Democrats held a retreat in Florida at which they planned how to, as the New York Times described it, “challenge the [Bush] White House on judicial nominees.” This involved a strategy to “change the ground rules” of the confirmation process, including using the filibuster to defeat nominees who had enough votes for confirmation. This sounds very much like, in Ornstein’s words, plotting to break the norms and alter the way the filibuster had been used.

That’s exactly what they did. During President George W. Bush’s first term, Democrats forced the Senate to take 23 cloture votes (more than in the previous 50 years combined) on 13 different judicial nominations. Twenty of those cloture votes failed, resulting in filibusters.

During the first five years of the Obama administration, with McConnell as Minority Leader, the Senate took 12 cloture votes on judicial nominations. Cloture votes on six nominees failed, resulting in filibusters. That’s where things stood in November 2013. The Senate had confirmed 209 of Obama’s nominees to life-tenured federal courts by then. Of the nominees receiving any opposition at all, half had fewer than ten negative confirmation votes.

Democrats deliberately changed the filibuster norm during the George W. Bush administration, launching 20 filibusters that kept five judicial nominations from confirmation. During the Obama administration, Republicans launched six filibusters that kept five judicial nominations from confirmation.

McConnell did not, indeed could not, do anything singlehandedly. And he did not, singlehandedly or otherwise, break the norms or alter the way the filibuster had been used. Those norms had already been broken; that way had already been altered.

During the Obama presidency, Senate filibusters declined by more than two-thirds from what they had been under his predecessor. I simply can’t comprehend how this can be described as “making [the filibuster] a fulltime weapon of mass obstruction.”

Law & the Courts

En Banc Sixth Circuit Okays Ohio Law Against Public Funding of Abortion Providers

By a vote of 11 to 6*, the en banc Sixth Circuit ruled today (in Planned Parenthood of Greater Ohio v. Hodges) that an Ohio law that bars its health department from funding organizations that perform nontherapeutic abortions is constitutionally permissible.

Judge Sutton’s twelve-page majority opinion is, as usual, a model of clarity and soundness. (Disclosure: I have known and admired Judge Sutton since we clerked together for Justice Scalia some twenty-seven years ago.) Sutton explains that the Planned Parenthood affiliates’ claim that the law imposes an unconstitutional condition on public funding in violation of the Due Process Clause fails for the simple reason that, under Supreme Court precedent, the affiliates “do not have a due process right to perform abortions.” Rather, any right they have is entirely derivative of a woman’s (putative) right to obtain an abortion. And that (putative) right to obtain an abortion does not include a right to have the government subsidize the abortion. So the unconstitutional-conditions doctrine (if the very confused rulings on unconstitutional conditions can be said to form a doctrine) does not even come into play.

* The Sixth Circuit has sixteen authorized judgeships, but its rules allow “any senior judge of the court who sat on the original panel” to take part in the en banc court. Senior judge Eugene Siler took part in the original panel ruling in favor of the Planned Parenthood entities; indeed, he joined that ruling but changed his vote in the en banc proceeding. Sixth Circuit rules also provide that the en banc court includes “all judges in regular active service at the time of a hearing or rehearing” (emphasis added), so Judge Batchelder and Judge Cook, who, as I understand it, took senior status upon the confirmations of Eric Murphy and Chad Readler (respectively) last week, also took part. (Murphy argued the case for Ohio in front of the original panel.)


Law & the Courts

In Defense of a Presumption of Constitutionality

At the Federalist Society’s national student symposium one year ago, I took part in a debate with Arizona supreme court justice Clint Bolick over the nature of the judicial power. The Harvard Journal of Law & Public Policy has now published my remarks under the title “The Presumption of Constitutionality.” My opening paragraphs:

Justice Bolick and I have agreed to disagree as much as possible, so I’m going to do my best to live up to our agreement. Let me jump right into my core thesis.

A Justice may deem a statute to be unconstitutional only when, after careful analysis, the Justice determines that the statute clearly conflicts with the Constitution. A Justice may not deem a statute to be unconstitutional if the relevant constitutional provision, at the end of the analysis, has two or more plausible meanings and the statute is consistent with one of those plausible meanings. It’s not enough, in other words, that the statute is inconsistent with what the Justice regards as the best reading of the constitutional provision. If there remains a plausible alternative reading that can be reconciled with the statute, the Justice must apply the statute.

This concept might fairly be labeled a “presumption of constitutionality.” A statute, that is, is presumptively constitutional. That presumption may be rebutted, but only by showing that the statute clearly conflicts with the Constitution.

This principle has deep roots. Indeed, it inheres in the very foundation of what we call judicial review: the power or, perhaps better, the duty of federal courts to decline to apply statutes that violate the Constitution. In his justification of judicial review in Federalist 78, Alexander Hamilton explains that the Constitution is a “fundamental law” that, like any other law, judges must interpret in order to “ascertain its meaning.” In the event of what Hamilton calls an “irreconcilable variance” between the Constitution and an ordinary statute, judges need to apply the Constitution, the law of, as he puts it, “superior obligation and validity,” in preference to the statute. Chief Justice Marshall’s exposition of judicial review in Marbury v. Madison closely tracks Hamilton’s reasoning.

And my closing paragraph:

I suspect that many of those who want to destigmatize or redefine judicial activism do so for the same reason that arsonists would be happy to have the word “arson” disappear or be redefined. If “arson” were simply referred to as “fire-building,” or if all legitimate fire-building would henceforth be called “arson,” the term “arson” would lose the stigma that it has earned, and life would be much easier for arsonists. I do not think that is something we should encourage.

Justice Bolick has published his side of the debate under the title “The Proper Role of ‘Judicial Activism.’

Law & the Courts

Judicial Nominations Update

President Trump speaks during a press conference in Washington, D.C., February 15, 2019. (Carlos Barria/Reuters)

Last week the Senate voted to confirm three more circuit court nominees: Allison Jones Rushing (Fourth Circuit); Chad Readler (Sixth Circuit); and Eric Murphy (Sixth Circuit). Senate Majority Leader Mitch McConnell also filed for cloture on the nominations of Paul Matey (Third Circuit) and Neomi Rao (D.C. Circuit). Their cloture and confirmation votes are anticipated this week.

Tomorrow the Senate Judiciary Committee will hold a hearing on the nominations of Dan Collins and Ken Lee, two of President Trump’s nominees to the Ninth Circuit.

Here is a full update on the status of President Trump’s federal judicial nominations: 

Current and known future vacancies: 168

Courts of Appeals:  12

District/Specialty Courts*: 156

Pending nominees for current and known future vacancies:  64

Courts of Appeals: 8

District/Specialty Courts*: 56

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Nomination


Days Pending Both Blue Slips Returned? Judiciary Committee Hearing Date
Dan Bress (9th) 2/6/2019 34 No Not yet scheduled
Dan Collins (9th) 2/6/2019 34 No 3/13/2019
Ken Lee (9th) 2/6/2019 34 No 3/13/2019

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Nomination Date Days Pending Judiciary Committee Hearing Date

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Pending Date Reported to Senate Floor
Bridget Shelton Bade (9th) 1/23/2019 48 2/7/2019
Paul Matey (3rd) 1/23/2019 48 2/7/2019
Neomi Rao (DC) 1/23/2019 48 2/28/2019
Joseph Bianco (2nd) 1/23/2019 48 3/7/2019
Michael Park (2nd) 1/23/2019 48 3/7/2019

Nominees Awaiting Floor Votes:46

Courts of Appeals: 5

District/Specialty Courts: 41

Days Pending

# of pending nominees originally nominated > 500 days ago: 4

# of pending nominees originally nominated > 400 days ago: 3

# of pending nominees originally nominated > 300 days ago: 20

Nominees Confirmed by the Senate during the 116th Congress: 4

Supreme Court: 0

Courts of Appeals: 4

District/Specialty Courts: 0

Nominees Confirmed by the Senate since Inauguration Day: 89

Supreme Court: 2

Courts of Appeals: 34

District/Specialty Courts: 53

Law & the Courts

Jack Phillips Wins Again

Masterpiece Cakeshop owner Jack Phillips (Rick Wilking/Reuters)

Imagine this scenario: You’re a business owner who always works to do the best job for your customers, who gladly serves all comers, and who tries to run your business in accordance with your deeply held convictions. This means that sometimes you choose not to use your talents to express certain messages or celebrate certain events. Because of your convictions, members of your state’s Civil Rights Commission target you, publicly call you a “hater,” compare you with Nazis and slaveholders, and drag you through years of litigation.

Meanwhile, that same commission goes out of its way to defend the rights of other businessowners — the same rights they are trying to deny to you — as long as those businessowners’ convictions line up with the commission’s preferred opinions.

Now imagine this: The U.S. Supreme Court rules 7–2 in your favor and criticizes the Civil Rights Commission for its unequal treatment and anti-religious conduct. You would think that after all that, you’d be left alone to operate your business as best you can, serving all comers and abiding by your deepest convictions.

Well, you’d be wrong.

This is reality for Jack Phillips, a Colorado-based cake artist who, because of his convictions about marriage, chose not to create a custom cake celebrating a same-sex wedding. Phillips offered to sell the customers other items or to create cakes for them for different occasions, explaining that he simply couldn’t craft a cake to celebrate a same-sex marriage. Soon after, the Colorado Civil Rights Commission launched a years-long campaign against Jack, requiring him to cease all of his wedding work and to teach his staff, which includes his own family members, that he was wrong to operate his business consistently with his faith. Because he was prohibited from creating wedding cakes, Jack lost over 40 percent of his business.

After all this, in June 2018, the Supreme Court decided 7–2 in Jack’s favor. Former Justice Anthony Kennedy, who wrote the majority opinion, criticized the commission’s treatment of Jack, saying, “The Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward [Jack’s] sincere religious beliefs” (emphasis added).

It seems like this Supreme Court ruling should have been the last word in the situation. But just a few weeks later, the state of Colorado doubled down on its discriminatory treatment of Jack, targeting him with another complaint.

In 2017, on the very same day that the Supreme Court announced it would hear Jack’s first case, Jack received a request from an attorney to create a cake that was pink on the inside and blue on the outside. The attorney clearly explained that the cake was intended to celebrate a gender transition from male to female. Jack declined the request because the custom cake would have expressed messages that conflict with his deeply held beliefs. The state doubled down on its hostility toward religious convictions by announcing that it was prosecuting Jack for declining to create the gender-transition cake.

The evidence of the state’s anti-religious hostility is overwhelming. During the original case, one of the commissioners compared Jack’s desire to operate his business according to his religious beliefs with the justifications given by Nazis and slaveholders for their egregious treatment of others.

Fast forward to the second case, and a commissioner involved in that one publicly called Jack a “hater” on Twitter. And at a public meeting after the Supreme Court’s ruling, commissioners expressed their support for the very anti-religious statements and attitudes that the Court had sternly condemned, including previous Commissioner Diann Rice’s statement that Jack’s plea to protect his religious freedom is “a despicable piece of rhetoric.” One commissioner even said, “I was actually proud of what she said, and I agree with her.” The anti-religious hostility is so strong that, in November 2018, one of the commissioners blew the whistle on the others, by expressing the belief that “there is anti-religious bias on the Commission.”

After the commission’s second attack on Jack’s religious freedom, he and his attorneys with Alliance Defending Freedom filed a federal lawsuit against the state. That lawsuit uncovered substantial evidence of the commission’s anti-religious hostility. And on March 5, 2019, the commission finally announced that it was dismissing its charges against Jack.

So now, after more than six and a half years, the state of Colorado is ending its legal campaign against Jack. His victories — at the Supreme Court in 2018 and pressing the commission to drop its charges in 2019 — are good news for every American. Respect for others who hold differing opinions is at the very core of a diverse society like America.

Government agencies such as the Colorado Civil Rights Commission cannot be allowed to treat people with hostility simply because of their beliefs. And because Jack had the courage to stand up for his freedom — sacrificing business and years of his life, and withstanding hateful rhetoric about his character and reputation — we are one step closer to ensuring that all are free to live and work consistently with their religious convictions.

Kristen Waggoner is senior vice president of U.S. Legal Division for Alliance Defending Freedom and argued before the U.S. Supreme Court on behalf of Jack Phillips and Masterpiece Cakeshop.

Law & the Courts

This Day in Liberal Judicial Activism—March 9

(Lucas Jackson/Reuters)

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

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

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

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

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—March 8

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

Law & the Courts

Originalism, the Right to Life, and Judicial Nominees

Sen. Josh Hawley (R., Mo.) participates in a mock swearing in with Vice President Mike Pence during the opening day of the 116th Congress on Capitol Hill in Washington, D.C., January 3, 2019. (Aaron P. Bernstein/REUTERS)

Senator Josh Hawley (R., Mo.), a member of the U.S. Senate Judiciary Committee, set off a vigorous debate last week when he dared to raise the question of a federal appeals-court nominee’s legal philosophy on the right to life. Though considered by some to be controversial or improper, Hawley’s inquiry was measured, thoughtful, and needed.

It’s an important and legitimate inquiry for several reasons. The “right to life” is not code for abortion. It encompasses many other legal and constitutional issues. It touches on governmental support for assisted suicide, embryo research, infanticide, genetic manipulation of developing human beings, and other threats to the equal dignity of human beings. And technology and culture will continue to raise bioethical issues.

It’s administration policy and Republican-party policy. The president promised during the 2016 campaign to appoint “pro-life judges.” The vice president said during the 2016 campaign that the administration would “overturn Roe v. Wade.” Support for “pro-life judges” has been a consistent part of the Republican-party platform since Ronald Reagan was the party’s nominee in 1980, when the platform declared that “we will work for the appointment of judges at all levels of the judiciary who respect . . . the sanctity of innocent human life.

It’s also a proper textualist inquiry. The constitutional protection of “life” is right there in the Fifth and Fourteenth Amendments. The Declaration of Independence forthrightly affirms the right to “life.” And prior to and since his confirmation to the Supreme Court, Justice Thomas has drawn an interpretative connection between the Declaration of Independence and the Constitution.

It is a proper originalist inquiry. The U.S. has a legal heritage supporting the protection of human life going back to the common law. Justice James Wilson, one of the original set of justices nominated to the Court by President George Washington, wrote in the 1790s:

With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.

The Constitution drew upon that common-law tradition and the Declaration when it prohibited Congress from “depriv[ing]” a person “of life . . . without due process of law” in the Fifth Amendment. After the Civil War, the Fourteenth Amendment extended that prohibition to the states. As a former law professor and Missouri attorney general, Hawley is well-positioned to raise these issues and the implications for the states.

The right to life isn’t reduced to Roe v. Wade. Despite Roe, the federal and state governments continue to enact legislation that protects the right to life. The states have increasingly enacted limits on abortion and enacted affirmative legal protection of the unborn child from conception through prenatal-injury, wrongful-death, and fetal-homicide laws.

Giving content to the constitutional protection of life will be an important jurisprudential question for years to come. The exact content of the right to life in the Fifth and Fourteenth Amendments has been given too little attention by judges and legal scholars. If, in response to the question “What does the right to life mean in the Fifth and Fourteenth Amendment?” a nominee answered, “The Court has answered that question in Roe v. Wade,” it would reveal a shallow understanding. Roe did not occupy the entire content of the constitutional protection of human life.

The criticism of Senator Hawley’s inquiry is unfounded. It’s inconsistent, for example, to praise a judicial nominee for a “policy” position such as administrative deregulation but to say that all other “policy” positions are out of bounds during the confirmation process. The right to life is part of the Constitution’s text and cannot be dismissed as mere “policy.” Isn’t the content of all constitutional provisions a proper scope of inquiry of a federal judicial nominee?

Senator Hawley laid out a thoughtful starting point with three lines of inquiry: judicial approval of state protection of life, the expansion of erroneous judicial precedent, and the future of “substantive due process.” Senator Hawley has set a standard for other Republican senators by his honest and principled concern that federal judicial nominees possess a pro-life legal philosophy, and he’s started an inquiry that should continue if our Constitution, in all its provisions, is to be effectively enforced by the judiciary. If senators can properly and publicly look for an “originalist” philosophy in judicial nominees, they can look for a “right to life” philosophy as well.

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