Law & the Courts

On Dobbs and the Triumph of the Conservative Legal Movement

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I’m pleased to share the cover of the new print issue of National Review. My piece, titled “Servants of the Constitution,” explains how the Court’s overturning of Roe v. Wade and Planned Parenthood v. Casey marks a crowning achievement of the conservative legal movement. I also highlight three important landmarks on the long path to Dobbs: the conservative revolt against George W. Bush’s nomination of Harriet Miers in 2005; Senator Mitch McConnell’s blockade of President Obama’s effort to fill the Scalia vacancy in 2016; and Senate Democrats’ filibuster of President Trump’s nomination of Neil Gorsuch in 2017.

An excerpt:

In the annals of Supreme Court confirmation battles, no decision is likely to be seen as more obviously idiotic and consequential than Senate Democrats’ launch of a filibuster against President Trump’s nomination of Neil Gorsuch to the Scalia vacancy.

Senate Democrats had initiated the filibuster — defeating the 60-vote threshold on cloture needed to move to a final vote — as a partisan weapon against George W. Bush’s appellate nominees in 2003. In 2005, Senate Republican leadership tried, but failed, to abolish the judicial filibuster, as seven Republicans, led by John McCain, jumped ship. But in 2013, after Republicans had used the filibuster fewer times against Obama’s nominees than Democrats had against Bush’s, Democratic leader Harry Reid succeeded in getting his majority to abolish it for lower-court nominees. Reid left the filibuster in place for Supreme Court nominees. Why? Because abortion-rights groups feared that abolishing it would make it easier for a Republican president to have a Republican-controlled Senate confirm the nomination of an anti-Roe justice. Far better, they urged, to wait to abolish the Supreme Court filibuster in order to confirm a Democratic president’s nominee. And just two weeks before the 2016 election, that’s exactly what Reid promised would happen if Republicans dared to filibuster President Hillary Clinton’s nominee for the Scalia vacancy.

In addition to being eminently qualified, Gorsuch had earned respect across ideological lines. By filibustering his nomination at the outset of the Trump presidency, Democrats made clear that they would filibuster any Trump nominee, and they thus gave McCain and other reluctant Republicans “no choice” (McCain’s words) but to vote to abolish the Supreme Court filibuster. Schumer and other Democrats knew at the time that what they were doing was very stupid, but their perfervid base insisted on it.

Set aside delusions about Mitch McConnell’s supposed omnipotence in herding Republican senators. If the filibuster hadn’t been abolished during Gorsuch’s confirmation process, Brett Kavanaugh would never have been confirmed, and probably would never have been nominated, for Justice Kennedy’s vacancy in 2018. Nor would Senate Republicans have been able to confirm any conservative (much less Amy Coney Barrett) to replace Ruth Bader Ginsburg in the few months between her death in mid-September 2020 and the end of the Senate’s session.

For access to the full article, to everything else in this issue and future issues, and to selective online content, become an NRPLUS member now.

Law & the Courts

This Day in Liberal Judicial Activism—July 15

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2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.  

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court. 

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.  

Law & the Courts

This Day in Liberal Judicial Activism—July 14

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1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson (in Ferdon v. Wisconsin Patients Compensation Fund), rules that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).  

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”  

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”  

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions): 

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue. 

2021—In an apparent effort to evade en banc review, an Eleventh Circuit panel majority (in Adams v. School Board of St. Johns County) substitutes a new and very different opinion in place of its ruling eleven months earlier, but it continues to hold that a school board violated the Equal Protection rights of a transgender student when it barred her from using the boys’ restroom.  

In her majority opinion, Judge Beverly Martin purports to apply intermediate scrutiny to a bathroom policy that “categorizes on the basis of sex.” But in what Chief Judge William Pryor in dissent calls “linguistic sleight of hand,” she uses sex as a synonym for gender identity and actually objects to the disparate impact that the bathroom policy has on the plaintiff student, who, unlike other students, can’t use a multi-stall bathroom that comports with her gender identity. Martin is really insisting that the Constitution requires that transgender students be given the unique right to use whatever bathroom they prefer. 

One month later, the Eleventh Circuit will vote to rehear the case en banc. That en banc review is pending

Law & the Courts

This Day in Liberal Judicial Activism—July 13

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2006 In United States v. McCotry, federal district judge David F. Hamilton invokes “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances.  One year later, a unanimous Seventh Circuit panel will reverse Hamilton’s ruling. 

In March 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to an appellate seat. 

2020—Federal district judge Theodore D. Chuang grants a preliminary injunction (in  American College of Obstetricians & Gynecologists v. FDA) that bars the Food and Drug Administration from enforcing during the coronavirus pandemic two of its rules governing the drug regimen used in chemical (i.e., non-surgical) abortions.  

Six months later, the Supreme Court will block Chuang’s injunction from continuing in effect pending disposition of the FDA’s appeal. 

2020—Under Oregon law, a group petitioning to place an initiative on the November 2020 ballot had to collect 149,360 signatures by July 2, 2020. But when the group claims (in People Not Politicians Oregon v. Clarno) that these requirements can’t constitutionally be applied during the coronavirus pandemic, federal district judge Michael J. McShane orders the state of Oregon either (1) to place the initiative on the ballot or (2) to reduce the signature threshold to 58,759 (which McShane somehow miscalculates to be a 50% reduction) and to extend the deadline to August 17.  

One month later, the Supreme Court will block McShane’s order from taking effect pending disposition of the state’s appeal. 

Law & the Courts

This Day in Liberal Judicial Activism—July 12

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2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible: 

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong. 

2016—Reversing the district court, a divided panel of the Tenth Circuit rules (in Planned Parenthood Association of Utah v. Herbert) that the Planned Parenthood Association of Utah is entitled to a preliminary injunction preventing Utah state agencies from implementing the governor’s directive that they stop channeling federal funds to PPAU. The “Factual background” in Judge Mary Beck Briscoe’s majority opinion reads in places like a Planned Parenthood press release. It even obscurely cites a Huffington Post article as authority for her dubious contentions. Worse, in determining that the governor acted in retaliation for PPAU’s exercise of its constitutional rights, Briscoe overrides the district court’s factual findings and draws highly speculative inferences that ignore the obvious reality that the governor was acting in response to concerns that PPAU was complicit in harvesting the body parts of aborted babies. 

Three months later, Judge Neil Gorsuch, joined by three colleagues, will dissent from the Tenth Circuit’s denial of en banc review of Briscoe’s ruling.  

2019—Taking a remarkably crabbed view of the Department of Health and Human Services’ authority under the Affordable Care Act, a Third Circuit panel rules (in Commonwealth of Pennsylvania v. President) that HHS lacks statutory authority to promulgate its religious and moral exemptions to its mandate that employers include contraceptive coverage in their insurance plans. The panel’s view conflicts with the Supreme Court’s understanding of HHS’s regulatory authority in previous cases and with the Obama administration’s own understanding. 

One year later (in Little Sisters of the Poor v. Pennsylvania), the Supreme Court will reverse the Third Circuit by a 7-2 vote.  

Law & the Courts

New York Times Botches FDA Non-Preemption of Abortion Drugs

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In a recent house editorial, the New York Times urges the Food and Drug Administration to “say, unequivocally, that the agency’s approval of and regulatory decisions around prescription drugs, including abortion pills, pre-empt any state-level regulations or statutes.” The purported effect of such a declaration would be to make chemical abortion lawful in states that have laws against abortion.

Never mind that this is the same NYT editorial board that has condemned FDA preemption as a “perverse legal doctrine” and celebrated a Supreme Court decision that “demolished the notion that federal regulatory rulings automatically pre-empt the states from enforcing even tougher standards on drugs.” Far more significant is that NYT’s new abortion-driven version of absolute FDA preemption is absurd.

NYT claims that Attorney General Merrick Garland, in his statement in response to the Dobbs ruling, asserted that states may not ban the drugs used in chemical abortion “based on disagreement with the F.D.A.’s expert judgment.” But NYT clipped Garland’s quote to distort its meaning. In a carefully couched statement, what Garland actually said was: “States may not ban Mifepristone based on disagreement with the FDA’s expert judgment about its safety and efficacy.”

A state that bans mifepristone because it is used to cause abortion is not disagreeing with the FDA’s judgment about the “safety and efficacy” of mifepristone for the mother seeking abortion. So Garland’s statement (whether or not it’s right) provides no support for NYT’s audacious preemption claim.

Supreme Court precedent squarely contradicts NYT’s vision of absolute FDA preemption. In the 2009 ruling in Wyeth v. Levine that NYT celebrated, the Court ruled that FDA approval of a drug and its labeling did not foreclose tort claims under state law for inadequate failure to warn. The position of the three dissenters in that case is rooted in what they saw as the direct conflict between the FDA’s labeling regime and the state tort claims, and thus provides zero basis for NYT’s extreme position.

The idea that FDA approval of mifepristone establishes some sort of imperative federal policy that overrides state laws is also impossible to reconcile with the fact that federal law criminalizes—and indeed subjects to massive RICO penalties—sending mifepristone by mail for the purpose of abortion. Repeal by implication is generally disfavored, and it would be especially odd to think that an agency’s action would repeal a federal law. As the Biden administration itself has recently emphasized in the analogous context of postal-service restrictions on mailing FDA-approved e-cigarettes:

Of course, it is possible for multiple Federal authorities to apply concurrently. FDA authorization of a cigarette for introduction or delivery into interstate commerce does not absolve an actor from other Federal requirements that govern the manufacture and distribution of cigarettes and other covered products: Rather, all overlapping requirements must be complied with in order to offer the product in interstate commerce. [Emphasis added.]

A lesser point: Although you wouldn’t know it from NYT’s editorial, the FDA has not approved the second drug used in the abortion-drug regimen, misoprostol, for that use. It instead has approved misoprostol only for the prevention and treatment of gastric ulcers in patients taking non-steroidal anti-inflammatory drugs. So NYT is calling for sweeping FDA preemption of state abortion laws based on an abortion-drug regimen that the FDA as of now hasn’t in fact approved.

What’s more, a state’s general criminal prohibition can apply to the use of FDA-approved drugs to violate that prohibition, even if a state doesn’t ban those drugs outright. Assume that the FDA approved a drug for use in physician-assisted suicide. Why would anyone imagine that FDA approval overrode state laws barring physician-assisted suicide? Why should it be any different here?

Law & the Courts

RICO Criminal Liability for Mailing Abortion Drugs

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Two further points on my post two weeks ago on the longstanding, and once again enforceable, federal statutes—18 U.S.C. § 1461 and 18 U.S.C. § 1462—that bar the mailing of abortion drugs:

1. Under the federal RICO (Racketeer Influenced and Corrupt Organizations) Act, acts in violations of these two statutes are included in the list of acts that count as predicate instances of “racketeering activity” under 18 U.S.C. § 1961(1).

Anyone who commits two or more instances of racketeering activity is subject to RICO’s severe criminal penalties, which include for each violation imprisonment for up to twenty years, a fine of $250,000, and forfeiture of any property interest in the criminal enterprise (e.g., ownership interest in a company involved in the racketeering). So if a company commits, say, ten unlawful acts of mailing abortion drugs, the owner of the company would face the rest of his life in prison, a fine of $2,500,000, and forfeiture of his interest in the company.

Like the statutes that bar the mailing of abortion drugs, RICO has a five-year statute of limitations for criminal charges. So even if a potential violator were confident that the Biden administration would decline to prosecute him, he would still face the risk that the next administration would do so for acts that occur between now and 2025.

(RICO also allows civil claims, but the prospect of meaningful damages awards for plaintiffs in civil cases is far more tenuous.)

2. In a comment in a Volokh Conspiracy post by Jonathan Adler, law professor David S. Cohen, co-author of a forthcoming article that advises abortion advocates how “to reimagine law, policy, and activism in a post-Roe country,” briskly dismisses section 1461 and section 1462 on the ground that “the circuit courts long ago declared that they only apply to unlawful items.” Cohen contends that “since abortion is legal [??] and the FDA has approved distribution of mifepristone as safe and effective, including by mail, these are lawful activities and items, thus the law, as interpreted by the courts, doesn’t apply.”

Cohen is wrong to contend that “the circuit courts long ago declared that [the predecessor versions of section 1461 and 1462] only apply to unlawful items.” What courts in the 1930s instead held (and/or stated in dicta) is that these laws do not “prevent a proper medical use of drugs or other articles merely because they are capable of illegal uses.” Youngs Rubber Corp. v. C. I. Lee & Co. (2d Cir. 1930). The predecessor version of section 1461 barred mailing “every article or thing designed, adapted, or intended for preventing conception” as well as any promotional material for such items. Applying the reasoning of Youngs Rubber, the Sixth Circuit held in Davis v. United States (1933) that the district court should have admitted evidence that the contraceptive items that the defendants were alleged to have promoted through the mail had “a legitimate medical and surgical use in treatment and prevention of disease.” The district court committed “error in refusing to admit evidence offered by the [defendants] tending to show good faith and absence of unlawful intent.” (Section 1461 and section 1462 do not apply to contraceptives.)

In the context of abortion drugs, what these cases stand for, in short, is the modest proposition that the prosecution must show that the defendant who mailed the drugs intended to do so for the purpose of abortion.

The current regimen of chemical abortion involves two drugs, mifepristone and misoprostol. Unlike mifepristone, misoprostol has uses other than in chemical abortion. Indeed, it has been approved by the FDA only for the prevention and treatment of gastric ulcers in patients taking non-steroidal anti-inflammatory drugs. So simply mailing misoprostol to a doctor who treats ulcer patients would not violate section 1461. But mailing mifepristone and misoprostol, together or in separate shipments, to someone would suffice to establish unlawful intent under section 1461.

In sum, the “long ago” cases that Cohen evidently is referring to are no obstacle to enforcing section 1461 and 1462 against persons who use the U.S. postal service or other common carrier to send drugs that they intend be used for abortion.

Law & the Courts

This Day in Liberal Judicial Activism—July 10

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2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says.  

But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling. 

Law & the Courts

This Day in Liberal Judicial Activism—July 9

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1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”  

But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.”   

2019—A Second Circuit panel rules (in Knight First Amendment Institute v. Trump) that President Trump “engaged in unconstitutional viewpoint discrimination by utilizing Twitter’s ‘blocking’ function to limit certain users’ access to his social media account, which is otherwise open to the public at large, because he disagrees with their speech.” The panel’s ruling rests on its determination that Trump’s Twitter account is a “public forum” for purposes of First Amendment analysis. 

But as Harvard law professor Noah Feldman explains, the panel’s decision “rests on a conceptual confusion that has serious negative implications for the freedom of speech.” Far from being a public forum, Trump’s Twitter account is “property controlled by Twitter Inc.,” so it’s Twitter, not the First Amendment, that governs speech on its property. 

Law & the Courts

This Day in Liberal Judicial Activism—July 8

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1994—Some messes can take years to clean up.  

In 1990, after months trying to get Henry Quade to respond to complaints about sewage and foul odors seeping from his house, state health department officials obtained a forcible-entry warrant. When they arrived at Quade’s house, Quade threatened “to get my gun and use it.” A team of police officers was called to the scene. When the officers entered the house, Quade fired a handgun at them. The officers shot back, killing Quade. 

In a divided panel ruling in Alexander v. City of San Francisco, the Ninth Circuit, in a majority opinion by Judge Betty Fletcher, rules that the officers can be held liable for damages for excessive force “in creating the situation which caused Quade to take the actions he did.” In dissent, Judge Stephen Trott laments that the ruling “wreaks havoc on the Fourth Amendment.” He further observes, “If I were a police officer, I might reconsider my calling with this kind of misunderstanding of my job and inconsistent messages from the court. 

Over the ensuing decades, the Ninth Circuit will apply this “provocation rule” in case after case even as other courts of appeals cast doubt on it. Finally, in 2017, a unanimous Supreme Court (in County of Los Angeles v. Mendez) will reject the Ninth Circuit’s provocation rule as “incompatible with our excessive force jurisprudence.” 

Law & the Courts

This Day in Liberal Judicial Activism—July 7

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2014—President Jimmy Carter’s sorry judicial legacy lives on. Thirty-five years after his appointment by Carter, 90-year-old Ninth Circuit judge Harry Pregerson—still in regular (rather than senior) status—authors a panel opinion that preliminarily enjoins the state of Arizona from implementing a policy that prevents a class of illegal aliens from obtaining driver’s licenses. The liberal diehard holds (among other things) that the policy likely violates the Equal Protection Clause. 

The state policy concerns those illegal aliens subject to the Obama administration’s non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process. 

2020—The Fourth Circuit denies en banc rehearing of a rogue panel opinion in United States v. Gary. In a plea colloquy over a firearms-possession charge, the district court had failed to inform the defendant that the government would have to show at trial that he knew that he had previously been convicted of a felony at the time of his unlawful possession of the firearm. The panel ruled that this error was a “structural error” that was not amenable to harmless-error analysis. 

Judge J. Harvie Wilkinson, joined by four of his colleagues, “concur[s] in the denial of rehearing en banc for one reason and one reason only”:  

“The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour. Many, many cases await the resolution of this question. 

“This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation.” 

The Supreme Court will grant review, and, in the consolidated ruling in Greer v. United States, every justice will reject the panel decision.  

Law & the Courts

A Supreme Court Term for the Ages

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A year ago, I praised the end of the Supreme Court term as the best of the previous 50 years. It was a term defined by its record deciding cases according to text and original meaning, avoiding the pitfalls of a judicially activist past. I still hold that view but now must qualify it: This most recent term was even better. The Court had weightier issues on its docket and took on the challenges before it with decisiveness and both professional and personal courage.

That the Constitution should be construed according to the original public meaning, context, and spirit in which the people’s representatives drafted it, without injecting judges’ policy preferences, should be straightforward. But for many years, that philosophy was stigmatized and its proponents were widely vilified. A working originalist majority of the Court was not going to come about without a fight.

Because of the stakes, this year brought new benchmarks in intimidation tactics unleashed on the Court by the Left. Justice Stephen Breyer was subjected to a crass but successful campaign by dark-money groups to push him off the Court to make room for a younger and more liberal replacement. The campaign against the liberal bloc’s senior member is easily forgotten because of the barrage of even more reprehensible conduct deployed against the Republican-appointed justices. The leak of Justice Samuel Alito’s draft opinion for the Court in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade; the targeting of justices at their homes, churches, and Justice Amy Coney Barrett’s children’s school; the violence against crisis pregnancy centers and churches; and the attempted murder of Justice Brett Kavanaugh are still raw memories. And the man to whom this term brought the greatest vindication, Justice Clarence Thomas, was subjected to an extra layer of vilification by activists and even members of Congress seeking to silence him, though his persecution has never really stopped since he was confirmed over thirty years ago.

By holding strong and overruling Roe along with the reformulated abortion standard in Planned Parenthood v. Casey (1992), the Court’s five originalists—Thomas, Alito, Neil Gorsuch, Kavanaugh, and Barrett—made history in Dobbs. That decision upheld Mississippi’s prohibition on abortions at 15 weeks, a judgment in which Chief Justice John Roberts concurred separately. But beyond that, it marked the Court’s abandonment of the intellectually dishonest business of inventing constitutional rights by fiat, returning one of the most contentious issues in American history to the people.

Thomas, the only justice who participated in Casey who remains on the Court, is now the leader of a majority of justices who share his commitment to originalism and the rule of law. On many topics, he used to find himself regularly a lone dissenter or joined only by Justice Antonin Scalia, including in his concern that the Court take more cases to prevent the Second Amendment from being relegated to a “second-class right.” This term, in New York State Rifle & Pistol Association v. Bruen, he wrote the majority opinion clarifying that the phrase “keep and bear arms” in that amendment has substance. The Court struck down New York’s onerous licensing law, which prevented law-abiding citizens with ordinary self-defense needs from carrying their arms in public to defend themselves. In deciding what firearm regulations would pass constitutional muster, judges would focus not on their own predilections, but on whether the challenged laws are “consistent with this Nation’s historical tradition of firearm regulation.”

Decided just one day before Dobbs, Bruen demonstrates the difference between today’s Court and yesterday’s: Rights enumerated in the Constitution receive a more robust reading, in contrast to the days when the justices guarded contrived holdings more zealously than enumerated rights.

Also reflecting this dynamic are this term’s victories for religious freedom and expression, an extension of a winning streak in merits cases spanning more than a decade. In Carson v. Makin, the Court struck down Maine’s exclusion of religious schools from a program of tuition assistance for private education as a violation of the Free Exercise Clause. In Shurtleff v. City of Boston, the Court invoked the Free Speech Clause to hold that Boston could not exclude a religious flag from a flag-raising program in which private groups were allowed to briefly fly flags of their choosing on a flagpole at City Hall Plaza. In Kennedy v. Bremerton School District, the Court held that a school district had violated both the free exercise and free speech rights of a high school football coach when it disciplined him for saying a quiet personal prayer on the field after football games, during a time period that members of the coaching staff were permitted to use for personal activities.

Even where its holdings applied to a narrow set of factual circumstances, the Court confirmed important developments in its First Amendment jurisprudence. In Kennedy, the Court clarified a significant development in the law—that it had “long ago abandoned” the muddled test for examining Establishment Clause claims in Lemon v. Kurtzman (1971) along with its offshoot, the “endorsement test.” In Federal Election Commission v. Cruz, the Court found the limit on post-election contributions a candidate could receive to repay personal loans to his own campaign—layered on top of base limits that already apply—to be an impermissible burden on speech. The 6–3 margin of that decision likely reflects the margin of protectiveness toward political speech in future cases that face this Court.

The justices also struck a blow on behalf of the structural Constitution by embracing the major questions doctrine, the notion that Congress must provide clear authorization before an agency can exercise powers of vast economic and political significance. This was apparent on the emergency docket last term in Alabama Association of Realtors v. Department of Health and Human Services, where the Court held that the Centers for Disease Control and Prevention lacked the authority to impose a nationwide eviction moratorium, and again in National Federation of Independent Business v. Department of Labor, where the Court found no justifiable ground for OSHA to have bypassed the normal rulemaking procedure and issued its far-ranging vaccination and testing requirements. In the latter case, the major questions doctrine was identified as such and discussed at length in a concurrence by Gorsuch, joined by Thomas and Alito.

That was in January. At the end of June, on the last day of the term’s merits decisions, the doctrine was explicitly embraced by the Court’s opinion in West Virginia v. Environmental Protection Agency. By a 6–3 margin, the justices rejected the EPA’s sweeping claim that a vague, rarely used provision of the Clean Air Act empowered it to impose draconian carbon emission reduction mandates that would transform the power industry writ large. That decision was a victory for the separation of powers and thus for representative democracy as it signaled that the Court was leaving new laws not to unelected bureaucrats, but to the democratic process, as the Constitution demands.

In other cases, the Court avoided judicial aggrandizement in contexts that justices would have found difficult to resist in prior terms. In Whole Woman’s Health v. Jackson, the Court rejected arguments that sought to expand Article III standing in order to allow pre-enforcement challenges to Texas’ recent abortion statute against state court judges and clerks and the attorney general. In Vega v. Tekoh, the Court recognized that Miranda warnings constitute a judicially crafted prophylactic rule, not a constitutional rule; the failure of law enforcement to give such warnings can be remedied by excluding unwarned statements from trial but does not by itself justify a § 1983 lawsuit. In Egbert v. Boule, the Court refused to expand Bivens remedies—causes of action for damages that are judicially crafted in the absence of an applicable statute—in recognition of the separation-of-powers principle that “creating a cause of action is a legislative endeavor.”

The five originalists agreed with each other on the judgment in all of the above cases. Biden v. Texas was a rare prominent case in which that dynamic did not hold. There the Court rejected a challenge to the Biden administration’s rescission of the Trump administration’s Migrant Protection Protocols, known as “Remain in Mexico.” The different positions in the case illustrated disagreements among originalists on complex issues, including whether the Court was barred from reaching the merits and the scope of permissible executive action under the Immigration and Nationality Act in light of the president’s foreign policy authority under Article II. Kavanaugh was the only originalist in the majority, but Barrett, who found the jurisdictional bar dispositive, agreed on the merits.

Contrary to the impression left by the liberal meltdown over the Court’s decisions this term, the justices are calling shots based not on policy preferences, but on what the law actually says. That, of course, is the scenario long dreaded by liberals who became used to the Court imposing their policy preferences. They start from a baseline of little respect for the Constitution on its own terms, so it should be no surprise that the nation has been subjected to the smear campaigns that have tarnished the nomination process for decades and the insidious intimidation tactics that recently followed.

The many years of building a Supreme Court majority committed to interpreting the Constitution as it is written came by way of a protracted battle. This term has been a resounding win for the rule of law. It confirms beyond a doubt that we finally have an originalist Court.

Law & the Courts

This Day in Liberal Judicial Activism—July 6

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1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence.  

But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight.  

2008Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right. 

Law & the Courts

Harvard/Harris Poll on Dobbs and Abortion

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A new Harvard CAPS/Harris poll offers some interesting—and, for pro-lifers, I think encouraging—data on how Americans view Dobbs and abortion policy, even as it also shows how surprisingly inept pollsters can be at asking questions on abortion.

1. On the question “Do you think your state should allow abortion [up to when]?” (p. 41), 37% say “Only in cases of rape and incest,” 12% say “Up to six weeks,” and 23% say “Up to 15 weeks.”

In short, after 50 years of pervasive pro-abortion propaganda in our culture and amidst the huge media outcry over the overturning of Roe, it would appear that a full 72% of Americans would like abortion to be banned at no later than 15 weeks and that 49% would like it to be banned at no later than 6 weeks. (To be sure, the poll presents only five options, so it’s unclear which option someone who, say, wants abortion to be legal for up to 10 weeks would pick.)

So much for the Democrat effort to enact the radical Women’s Health Abortion Act, which (among other things) would make abortion legal throughout the entirety of pregnancy—a result supported by only 10% of those polled.

I should add that this question isn’t worded as clearly as I would like. I think that the person being polled would understand the alternatives to “Only in cases of rape and incest” to be “Only up to X weeks,” but it would have been better to include the word Only. Conversely, given that every abortion ban includes an exception for the life of the mother, I don’t understand why the most protective alternative doesn’t read “Only in cases of rape, incest, and threat to the life of the mother.”

2. Somehow the pollsters drafted this confusing question (p. 40) on the overturn of Roe v. Wade: “Do you support or oppose the Supreme Court’s decision to overturn Roe vs Wade, which allows each state to decide its own standards for abortion instead of a set right?” (Emphasis added.)

The question of course makes sense only if the which clause is understood to modify the word decision. But anyone reading it could easily think that the question is stating that Roe “allows each state to decide its own standards for abortion.” Who knows how many of the 55% who said that they “oppose the Supreme Court’s decision to overturn Roe vs Wade” might have had this misunderstanding? Why not instead ask something like:

“The Supreme Court’s decision last week to overturn Roe vs Wade allows each state to decide its own standards for abortion? Do you support or oppose last week’s decision?”

3. We in fact learn from another question (p. 42) that only 25% of those polled “think it is better for abortion standards to be set by judges of the supreme court [rather than] by a vote of congress or by the legislatures of each individual state.” So that would suggest that most of the 55% who oppose Roe’s overturning either have soft opposition or don’t understand that Roe’s overturning means that Supreme Court justices will no longer be setting abortion policy for the country.

4. Demonstrating the fallacy of the false dichotomy, another question (also on p. 42) asks, “Do you think the Supreme Court decision has settled the law on abortion or has created turmoil?” How should those who welcome the return of abortion policy to the democratic processes answer that question? Surely it would be odd for them to be part of the 31% who somehow think that Dobbs has “settled the law on abortion.”

5. In another sign of the sloppiness of the pollsters, the headline on p. 43 currently reads: “Over a third of voters deem SCOTUS to be legitimate….” In fact, the reported result shows that 63% of those polled “consider the Supreme Court … to be legitimate.”

Law & the Courts

Can Major-Questions Doctrine Actually Get Congress to Legislate Again? 

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People walk near the U.S. Supreme Court in Washington, D.C., January 26, 2022. (Joshua Roberts/Reuters)

Last week the Supreme Court ruled in West Virginia v. EPA that the Environmental Protection Agency did not have the legal authority to enact a sweeping regulation of greenhouse-gas emissions known as the Clean Power Plan. In doing so, the Court’s conservative majority invoked the “major questions doctrine.” That freshly minted doctrine holds that an administrative agency may only regulate matters of “vast economic and political significance” when the agency is empowered to do so via statutory language that puts matters regulated within the agency’s authority in an especially clear way. In her dissenting opinion, Justice Kagan explained how the major questions doctrine is inconsistent with textualism — the theory of statutory interpretation associated with the late Justice Scalia, pursuant to which judges focus on statutory text, structure, and history. Justice Kagan is correct.

I am a committed textualist and a law professor who researches administrative law topics such as those at issue in West Virginia. Although I strongly agree with the majority opinion and Justice Gorsuch’s concurrence in West Virginia that the Court must enforce constitutional limits on Congress’s ability to delegate lawmaking authority to administrative agencies, the major questions doctrine is not the right way for textualists to do it, as I’ve argued at length elsewhere. That is so for two reasons.

First, the major questions doctrine purports to empower a judge to change how he interprets a statute based on whether he thinks a case presents a question of “major” political and economic significance. But a statute says what it says irrespective of whether it implicates a major political controversy. In any event, judges are not politicians. Judicial decisions premised on political calculations are therefore a risky endeavor, as a judge might be mistaken as to which questions are of true political significance. Indeed, because federal judges are constitutionally insulated from politics, they are particularly ill-suited to identify which questions are of enhanced political importance. Such decisions are better left to our elected representatives, whose political calculations can be assessed at the ballot box.

Second, the major questions doctrine is statutorily suspect. The doctrine flows from the judge-made presumption that Congress intends to decide major political questions itself rather than empower administrative agencies to decide such questions. But the Congressional Review Act exhibits that Congress presumes the precise opposite. Specifically, the Congressional Review Act acknowledges that administrative agencies — not Congress — will answer major questions through “major rules.” The Act’s definition of “major rule” similarly considers economic and political significance, and the Act requires that each major rule be given legal effect unless Congress affirmatively enacts new legislation stating that a particular major rule should be rejected. The major questions doctrine — which essentially refuses to give legal effect to major rules unless Congress clearly granted the agency authority to issue the rule — turns Congress’s chosen regulatory procedure on its head. In short, the Congressional Review Act demonstrates that judges are wrong to presume that Congress intends to decide major questions itself.

Congress has shown itself more than eager to empower administrative agencies to decide major questions, which presents a problem for our republican form of government. The justices who voted against the agency in West Virginia were therefore correct to demand that Congress, and not unelected bureaucrats, shape national policy. But those justices — whose commitment to textualism I do not doubt — risk undermining textualism in the process when they invoke the major questions doctrine.

Courts should limit Congress’s ability to punt tough decisions to administrative agencies across the board, not just when a judge thinks a particular question important. Textualists, including the textualist justices on the Supreme Court, would therefore do best by tossing the major questions doctrine aside and returning to a dogged focus on statutory text, structure, and history.

Law & the Courts

This Day in Liberal Judicial Activism—July 5

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 1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. (See This Day for February 14, 1992, for the rest of the story.)   

Law & the Courts

This Day in Liberal Judicial Activism—July 4

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1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?  

Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)   

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents. 

Law & the Courts

This Day in Liberal Judicial Activism—July 3

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2005—Two days after Justice Sandra Day O’Connor announces her intention to retire, Senator Joseph Biden threatens that if President George W. Bush nominates D.C. Circuit judge Janice Rogers Brown to replace O’Connor, Biden and other Senate Democrats will filibuster the nomination of the first African-American female to the Court. 

Running for president fifteen years later, Biden will promise that his first Supreme Court nominee will be an African American woman, and when he nominates Judge Ketanji Brown Jackson in February 2022, he will take credit for the historic first that he acted to thwart Bush from achieving. 

2019—In Sierra Club v. Trump, a divided Ninth Circuit panel bars the Trump administration from reprogramming appropriated funds to build a border wall with Mexico. Specifically, the panel leaves in place, pending its consideration of the government’s appeal, a permanent injunction entered by a district court against the use of reprogrammed funds. In dissent, Judge N. Randy Smith concludes that plaintiffs have no legal claim that they are entitled to invoke.  

Three weeks later, the Supreme Court, by a 5-4 vote, will override the Ninth Circuit’s ruling and block the district court’s injunction from taking effect.  

Law & the Courts

This Day in Liberal Judicial Activism—July 2

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2019—In response to a decision by the Attorney General that aliens in removal proceedings awaiting action on their applications for asylum must generally be detained during the process, federal district judge Marsha Pechman (in Padilla v. ICE) enters a nationwide injunction requiring the United States to provide bond hearings for that class of aliens. 

Dissenting from a Ninth Circuit panel decision affirming Pechman’s order in March 2020, Judge Bridget Bade will object that the Supreme Court “has repeatedly interpreted [a statutory provision] as a bar on classwide injunctive relief against” removal proceedings and that two other federal appellate courts have so ruled with respect to the very circumstances of this case. 

In January 2021, the Supreme Court will vacate the Ninth Circuit’s judgment (and remand the case for further consideration in light of its ruling in another case). 

Law & the Courts

Among Supreme Court Decisions in June, One with Seismic Impact on Education

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(Molly Riley/Reuters)

Amid the inevitable national uproar over the historic Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, relatively little has been said, other than on conservative sites such as NRO, about another decision the Court handed down, one with the potential to have a seismic impact on American education.

Indeed, as religious liberty cases go, Carson v. Makin marks a sea change where free exercise and establishment of religion meet.

The Court’s decision settled decades of debate over the right of religious private schools to access the same government funding enjoyed by secular institutions. Many states — including Maine, whose statute was implicated in the Carson case — have long regarded the provision of public funds to church-affiliated schools as a violation of the First Amendment’s establishment clause (“Congress shall make no law respecting an establishment of religion”).

In some cases, that interpretation evolved from an incorrect and antiquated view of the establishment clause; in other instances, it was born out of a hostility to religion. Either way, the practical effect was to deny countless parents the option of an affordable private education for their children, simply because that education was presented in the context of faith.

In a 6–3 decision, the high court found that laws such as Maine’s, in their zealous effort to sever church from state, violate another key clause of the First Amendment: the one blocking the government from “prohibiting the free exercise [of religion].” The Carson decision not only gives states the option of directing funds to religious private schools, it requires them do so in fair balance with how they allot such funds to secular institutions.

Carson built on several Supreme Court precedents:

In Witters v. Washington Department of Services for the Blind (1986), argued by Michael Farris (now president and CEO of Alliance Defending Freedom), the court unanimously determined that the establishment clause did not prevent states from giving financial assistance to students seeking religious instruction. It did not, however, require states to do so.

In Trinity Lutheran Church of Columbia v. Comer (2017) — a case I was privileged to argue on behalf of the church and its school — the justices found that denying a religious school access to the same government funds made available to secular schools, simply because of that school’s religious affiliation, was not required by the establishment clause, and — for the first time ever — held that such denial was a violation of the free-exercise clause. Justice Sonia Sotomayor stated in dissent: “This case is about nothing less than the relationship between religious institutions and the civil government — that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.”

In Espinoza v. Montana Department of Revenue (2020), the Court affirmed that state tuition assistance cannot be denied to students attending a private school on the basis of that school’s religious affiliation.

These decisions said the government can’t discriminate against a private school because of its religious status; Carson relied on the same analysis to say the state can’t challenge the religious use of the funds it provides. Opponents had contended that earlier decisions allowed for government funding only in cases where those monies would not be tied explicitly to religious instruction or use. But the Court ruled that state funding not only can but must be allotted equally, even to institutions where such instruction is integral to all its activities.

The decision dismisses a long-standing insinuation that the establishment clause poses a contradiction to the free-exercise clause, and that courts are therefore obliged to choose between one and the other.

That ignores one inescapable fact: that the Framers pointedly put both clauses (more accurately, it is one clause) next to each other in the same amendment. It hardly seems likely they would have done so had they intended the ideas to conflict. It makes considerably more sense to read the clauses as complementing each other: the right of citizens to live out their faith, and the obligation of government not to infringe on that freedom.

It’s not an idea those opposed to religious freedom are willing to embrace, and the legal struggle is far from over. Expect increasingly aggressive challenges to religious-school inclusion and accreditation — for example, through accusations of discrimination and bigotry against religious organizations that simply operate consistently with their faith, living out and teaching the principles that set them apart in the first place.

The far Left will continue to advocate for greater tolerance and inclusivity — but only for those whose ideals and activities they agree with. In truth, they don’t want a “wall of separation” between church and state so much as legalized discrimination against churches and expansion of the state. They are therefore expressing great frustration that, with the Carson decision, a big part of that “wall” has now fallen. But that’s to be celebrated. It needed to fall. It had no origin in the Constitution to begin with.

Law & the Courts

Unelected Bureaucrats Should Not Take Major Questions Away from the People, the Supreme Court Tells the EPA

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Yesterday the Supreme Court in West Virginia v. EPA appropriately rejected the Environmental Protection Agency’s sweeping claim that it could do essentially whatever it wants to reduce or eliminate carbon from any part of the American economy through draconian emission reduction mandates.

At issue was the EPA’s extravagant reading of the Clean Air Act. The agency had for decades interpreted that statute, which was enacted in 1970, as allowing it to set performance standards for power plants to operate more cleanly. But in 2015, the Obama EPA claimed a far broader exercise of power under a new Clean Power Plan (CPP), imposing emission reduction mandates that required existing coal-fired plants to reduce their own production of electricity or to subsidize generation by natural gas, wind, or solar sources.

These emissions caps could not be met by existing coal plants given limitations on technology, and they ultimately imposed stricter mandates on such plants, relative to new plants with new technology. Additionally, states were expected to develop plans under the CPP that met the EPA’s emissions targets. The EPA was effectively compelling coal plants to shift production, subsidizing their competitors, in order to accelerate the nation’s movement toward a zero-carbon electricity sector while the agency was hamstringing state governments in the process. The EPA administrator at the time, Gina McCarthy, even admitted that the rule was “not about pollution control” as much as it was “an investment opportunity”—specifically, “investments in renewables and clean energy.”

As Chief Justice John Roberts wrote for the Court, Congress never gave the EPA authority to promulgate a generation-shifting regime of emissions caps. In fact, Congress had debated and failed to pass a national system of energy regulation along such lines on numerous occasions, long after the environmental risks posed by greenhouse gas emissions were widely known.

The Clean Air Act authorizes measures to determine the best existing technologies and methods for setting an achievable emission limitation at individual facilities, not to shift to alternative power sources or to similarly transform the power industry. The EPA invoked for its power grab an obscure section of the statute that provided for an agency determination of the “best system of emission reduction,” followed by quantifying “the degree of emission limitation achievable” if that best system were applied to the covered source. Never had this language been invoked to justify any regulations of this scope. Roberts maintained that the EPA cannot claim this “newfound power in the vague” and “ancillary” language of a “rarely . . . used” part of the Clean Air Act that “was designed to function as a gap filler.”

In rejecting the regulatory license that the agency was asserting from that language, the Court invoked the major questions doctrine. That is the notion that an agency needs “clear congressional authorization” when the “history and the breadth” and “economic and political significance” of the power it claims provide a “reason to hesitate before concluding that Congress” intended that scope of authority.

This doctrine draws support from several prior opinions of the Supreme Court, but it was refreshing to witness the Court giving needed guidance to lower courts applying the concept. Going forward, lower courts should have “skepticism” toward major regulatory schemes that assert “extravagant statutory power over the national economy” but do not have clear statutory authorization. And it is a warning that when enacting regulations, agencies should not be seeking “to hide ‘elephants in mouseholes’”—Justice Antonin Scalia’s memorable phrase from a 2001 opinion for the Court that Justice Neil Gorsuch cited in a concurring opinion.

The major questions doctrine is grounded in sound textualism and the separation of powers. This case also reinforces federalism, making it broadly protective of the structural Constitution. By refusing to indulge the EPA’s expansive reading of the Clean Air Act, the Court saved states from being subjected to damaging energy mandates. Now West Virginia, one of many states that challenged the agency in court, will not be forced into a California-type energy grid.

This decision is widely being reported as a climate change case and a defeat for President Biden’s zero-carbon agenda. Justice Elena Kagan, joined by the two other members of the Court’s liberal bloc, Stephen Breyer and Sonia Sotomayor, contributed to this impression with a strident, characteristically policy-laden dissent complaining that the Court “does not have a clue about how to address climate change.”

But the Court’s decision, which represents a six-justice majority, did not substantively weigh in on what Congress is empowered to do on this issue. It leaves this question to the people’s representatives and chides an agency that overstepped its bounds. By reining in the EPA, the Court has struck a blow for representative democracy and the rule of law, making it clear that unelected, unaccountable bureaucrats are no substitute for elected officials setting policy on major issues.

Law & the Courts

This Day in Liberal Judicial Activism—July 1

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1976—By a 5-4 vote, the Court rules in Singleton v. Wulff that two abortionists challenging limitations on Medicaid funding of abortion have standing to assert not only their own rights but also the rights of their patients. This expansion of third-party standing will fuel litigation against abortion regulations for decades to come. 

1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy waddles to the Senate floor to launch a viciously false attack on Bork: 

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….  

The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination. 

2002—Federal district judge Jed S. Rakoff rules (in United States v. Quinones) that the federal death penalty is unconstitutional. In October 2002, a unanimous Second Circuit panel, in an opinion by Judge José A. Cabranes (a Clinton appointee), will reverse Rakoff’s ruling.  

Law & the Courts

This Day in Liberal Judicial Activism—June 30

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1993—In furtherance of his 1985 desegregation plan for the Kansas City, Missouri, School District—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 orders the state of Missouri to fund salary increases for school-district staff in order to improve the “desegregative attractiveness” of the school district to non-minority students outside the district. By the time the Supreme Court reviews this and similar orders, the total salary assistance that Clark will have required the state of Missouri to provide will exceed $200 million.  

In its 1995 decision in Missouri v. Jenkins, the Supreme Court will rule, by a 5-to-4 vote, that Clark’s orders of salary increases exceed his “admittedly broad discretion.” 

2016—Federal district judge Carlton W. Reeves rules (in Barber v. Bryant) that a Mississippi law that provides protections against government reprisals for those who take various actions based on their conviction that marriage is the union of a man and a woman violates the Establishment Clause and the Equal Protection Clause.  

One year later, a unanimous Fifth Circuit panel will reverse Reeves’s ruling on the ground that the plaintiffs in the case, having failed to show that they were injured by the law, lacked standing to challenge it. 

2016—Perhaps Ninth Circuit judge Kim McLane Wardlaw is competing for a Lifetime Summary Reversal Award. As Judge Diarmuid O’Scannlain aptly sums it up in dissent, the panel opinion by Wardlaw in Cuero v. Cate “erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law.”  

In 2017, the Supreme Court will summarily reverse Wardlaw’s ruling (in Kernan v. Cuero) and thus add to her record of dubious achievements. 

Law & the Courts

My Law-Review Article on Judge Thapar’s Outstanding Abortion Opinion

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Related to my previous post on the en banc Sixth Circuit’s order allowing two provisions of Tennessee abortion law to take effect:

The Texas Review of Law & Politics has just published my article praising Judge Amul Thapar’s separate panel opinion (concurring in part and dissenting) as “an outstanding example of his originalist craftsmanship.” Here are some excerpts from my article (the time frame of which reflects that I wrote it months before last week’s ruling in Dobbs):

Thapar’s stature as a prominent originalist is itself a testament to the transcendent appeal of originalism as a methodology of constitutional interpretation. The son of working-class immigrants from India, Thapar was born and raised in the heartland of America, Michigan and Ohio. The love for this country and its founding principles that his parents instilled in him is illustrated by his mother’s decision, in the aftermath of the 9/11 attacks, to close her successful restaurant business and dedicate herself to helping military veterans adjust to civilian life. In response to a colleague’s charge that many Americans want to shut our borders “to all potential immigrants who are not blond-haired and blue-eyed,” Thapar replied that “as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.” …

Drawing on a broad range of sources, [Judge Thapar] provides a clear, compelling, and comprehensive account of how the Supreme Court’s abortion precedents in Roe and Casey are “wrong as a matter of constitutional text, structure, and history.” He also depicts the damage that they have wreaked on the law. As the Supreme Court decides Dobbs v. Jackson Women’s Health Organization, Thapar’s opinion provides forceful support for overruling Roe and Casey….

Thapar launches his originalist analysis by setting forth what public-meaning originalism entails. The meaning of a constitutional provision “is fixed when it is enacted and does not change unless the [Constitution] itself has been changed.” Courts determine this original meaning “by looking to the Constitution’s ‘text, structure, and original understanding’”—in other words, “by asking what a reasonable reader at the time of ratification (the intended audience) would understand the Constitution’s text to mean in light of the Nation’s history and legal backdrop.”…

As Thapar points out, there is no constitutional text, in the Fourteenth Amendment or elsewhere, that “explicitly provides a right to abortion.” Nor can such a right be said to be “deeply rooted” in our nation’s “history, legal traditions, and practices.” The Roe majority’s claim to the contrary badly “rewrote history” by relying heavily on the shoddy, and now thoroughly discredited, scholarship of abortion proponent Cyril Means. As Thapar discusses in detail, Means was flatly wrong to contend that abortion at common law “was not an offense of any kind, no matter at what stage of gestation it was performed.” On the contrary, abortion was a criminal offense at common law, at least from quickening (when the unborn child’s life could first be discerned), even if evidentiary challenges often prevented prosecution. And even if the common law, in light of the primitive state of embryology, did not forbid abortion before quickening, that would not mean that abortion was “affirmatively protected” as a right.

Law & the Courts

Sixth Circuit Vacates Injunction Against Tennessee Abortion Law

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In the immediate aftermath of the Supreme Court’s ruling in Dobbs, the en banc Sixth Circuit (in Memphis Center for Reproductive Health v. Slatery) has unanimously vacated a district court’s preliminary injunction against two provisions of Tennessee abortion law. One of the provisions bars abortion, except in the event of a medical emergency, once a baby’s heartbeat is detected (typically around six weeks of gestational age). The other bars abortions sought for discriminatory reasons—specifically, on the basis of the child’s race, sex, or condition of Down syndrome. (The Sixth Circuit’s one-sentence order is appended on the last page of Tennessee’s emergency motion to vacate the injunction.)

Congratulations to Tennessee attorney general Herbert H. Slatery III on his vigorous and ultimately successful defense of the provisions.

A Sixth Circuit panel had initially affirmed the district court’s order, with Judge Amul Thapar dissenting as to the discrimination ban. (I will have a post next on my just-published Texas Review of Law & Politics article on Thapar’s outstanding opinion.) The en banc Sixth Circuit granted review of the panel decision last December.

Law & the Courts

This Day in Liberal Judicial Activism—June 29

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1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade [OVERRULED BY DOBBS v. JACKSON WOMEN’S HEALTH ORGANIZATION]

The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.  

But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment.’ The Federalist No. 78.” 

2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place. 

In June 2022, the Iowa supreme court will repudiate this ruling.

2020—Presented an opportunity to begin making headway against the Supreme Court’s illegitimate Roe/Casey abortion regime, Chief Justice Roberts instead adopts a wooden view of stare decisis in June Medical Services v. Russo. While reiterating his belief that the Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt  was “wrongly decided,” Roberts casts the decisive fifth vote against Louisiana’s admitting-privileges law for doctors.  

From this and other recent votes by Roberts, the Left draws the lesson that bullying him pays big dividends. 

Law & the Courts

Sotomayor’s Shoddy Dissent in Kennedy v. Bremerton

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Justice Sotomayor’s dissent in Kennedy v. Bremerton is as shoddy as its first sentence, where she uses deceptive wordplay to recast Coach Kennedy’s quiet post-game prayer at midfield as “say[ing] a prayer at the center of a school event.” No, the fact that Kennedy prayed at the 50-yard line after the game was over did not make his prayer “at the center of a school event.”

It gets much worse. Sotomayor refuses to focus on the actual grounds that the school district identified for disciplining Kennedy. As Justice Gorsuch’s majority opinion explains, “The District disciplined him only for his decision to persist in praying quietly without his players after three games in October 2015.” Sotomayor does not dispute this. She complains instead that by looking only to the grounds that the school district “articulate[d],” the majority “errs by assessing [the district’s Establishment Clause concerns] divorced from the context and history of Kennedy’s prayer practice.”

As Gorsuch’s majority opinion spells out, for over seven years no one complained to the school district about Kennedy’s pre-game and post-game practices (which took different forms over time). When the school district in September 2015 did object to Kennedy’s post-game “inspirational talks” with “overtly religious references,” Kennedy complied by ending those talks.

Under Sotomayor’s contextual assessment, it doesn’t matter that Kennedy stopped giving post-game talks with religious content, and it doesn’t matter that the school district stated that it was disciplining Kennedy only for (in Gorsuch’s summary) “praying quietly without his players after three games in October 2015.” What this means is that Sotomayor would treat Kennedy differently from another coach with no history of prayer practice who started praying quietly without his players at midfield. Kennedy’s prayers would somehow violate the Establishment Clause, while the other coach’s identical conduct wouldn’t. What sense does that make, especially when the district itself didn’t invoke Kennedy’s past practice against him?

Sotomayor has also gotten a lot of attention for including in her dissent three photos that the usual suspects misinterpret as somehow refuting Gorsuch’s statement of the facts. Oddly, Sotomayor does not discuss the photos and thus invites the misinterpretations.

The first photo (on page 5 of her dissent) shows Coach Kennedy in a prayer circle with players from both teams. Unlike with the other two photos, Sotomayor doesn’t include a date in the photo’s caption, so only a careful reader will know that it came from the time that Kennedy was giving post-game talks (i.e., before he received the school district’s directive in September 2015), not from any of the three games for which the school district punished Kennedy.

The second photo (on page 9) shows Coach Kennedy in a prayer circle surrounded by players, and it bears the date of October 16, 2015—the first game for which Kennedy was punished. But only the careful reader will discern that all of the players surrounding Kennedy are “from the opposing team” (as Sotomayor states on the previous page). So any suggestion that he coerced them to join him would be absurd.

The third photo, on page 10, shows Coach Kennedy in a prayer circle without any players, but with some players in the background. The caption states that it is from October 26 (after the third game). Sotomayor’s text preceding the photo states that “The BHS [Bremerton High School] players, after singing the fight song, joined Kennedy at midfield after he stood up from praying.” (Emphasis added.) I’m reliably informed that the players in the background of the photo, in white jerseys, are from the opposing team, not from Bremerton High. In any event, even if that weren’t so, I don’t see how she thinks that the photo helps her argument.

Even if the “endorsement” test that Sotomayor invokes were a sound interpretation of the Establishment Clause, how and why would an objective observer, on a proper presentation of the facts, think that the school district was endorsing religion by allowing Coach Kennedy to say a quiet prayer at midfield after a football game? How and why would the fact that no players from his team joined him for any of the prayers after the three games suggest that players felt coerced to join those prayers?

Law & the Courts

Coach Kennedy’s Win Off the Field

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Yesterday saw yet another big victory for religious liberty at the Supreme Court. And a win for high school football coach Joseph Kennedy. For kneeling after games on the 50-yard line and saying a quiet personal prayer, the school district placed him on administrative leave and advised against rehiring him.

Kennedy conducted his prayers for over seven years before the school district’s superintendent apparently learned of his practice in 2015 and tried to stop it. He initially prayed alone, but players would eventually ask to join him, to which he replied, “This is a free country. You can do what you want.” He also offered (in a tradition predating him) locker-room prayers and incorporated prayer or religious references into postgame motivational talks to his team, both practices he ended after being directed by the district to avoid such “religious expression, including prayer.”

There were ultimately several occasions on which the district ordered Kennedy to desist in his religious expression. The coach, trying to work with his employer, made the modest request to be able to offer a short prayer on the field while students were occupied with other activities such as boarding the bus or singing the school fight song, but the district would not budge. He was disciplined for saying such prayers, quietly and in the absence of his students, after three games. The record made clear that Kennedy was disciplined solely for persisting in such prayer, with the district admitting it was restricting his actions at least in part because of their religious character.

Writing for a 6–3 Court in Kennedy v. Bremerton School District, Justice Neil Gorsuch wrote that the school had violated both Kennedy’s free exercise as well as his free speech rights. “Where the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities,” Gorsuch wrote. “That the First Amendment doubly protects religious speech is no ac­cident. It is a natural outgrowth of the framers’ distrust of government attempts to regulate religion and suppress dis­sent.”

The Free Exercise Clause was implicated because the school was targeting the religious character of the coach’s actions and because it failed to set generally applicable standards. Other members of the coaching staff were permitted for brief periods after games “to do things like visit with friends or take personal phone calls.”

Kennedy’s prayer was private expression in his capacity as a private citizen, which was key to carrying his threshold burden to make his free speech claim. As the school district admitted, “Mr. Kennedy’s actual job description left time for a private moment after the game to call home, check a text, socialize, or engage in any manner of secular activities,” but he used that time to pray.

Since Kennedy met his threshold under both clauses, the school district needed to demonstrate that its restrictions served interests that would satisfy either strict scrutiny or a more lenient standard of review. The Court found that the district did not satisfy its burden regardless of which test applied.

The school district’s attorneys misconstrued Kennedy’s prayers as government speech that violated the Establishment Clause, which they argued trumped any protection they otherwise might have under the Free Exercise and Free Speech Clauses, and thus required the imposed restrictions. Yet as Gorsuch noted, the three clauses appear in the same sentence and “would seem to . . . have ‘complementary’ purposes, not warring ones.”

That describes the textual problem with the school district’s argument, also made by the three liberal justices in a dissent by Justice Sonia Sotomayor, that Kennedy was violating the Establishment Clause. “The Constitution does not authorize, let alone require, public schools to embrace this conduct,” Sotomayor asserted. According to that argument, Gorsuch countered, the Court should “adopt the view that the only acceptable government role models for students are those who eschew any visible religious expression.” The argument drew from the ahistorical test the Court used to apply, established by Lemon v. Kurtzman (1971). But Gorsuch noted that the Court “long ago abandoned” the defunct, ahistorical Lemon test and replaced that test with a command to interpret the Establishment Clause in light of its “original meaning and history.”

The district and the dissent also argued that because Kennedy was an authority figure, his students might feel coerced to pray alongside him—which none of them did during the three games for which he was disciplined. “Mr. Kennedy’s private reli­gious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion,” Gorsuch observed. What was coercive, of course, was the boorish behavior of school administrators who refused to make a simple accommodation.

Yesterday the Court struck the right balance between the various First Amendment interests that were implicated and added yet another case to its decade-plus stretch of decisions affirming the religious liberty protections guaranteed by the Constitution.

An important part of the Court’s message is that “learning how to tolerate speech or prayer of all kinds is ‘part of learning how to live in a pluralistic society,’ a trait of character essential to ‘a tolerant citizenry.’” Hopefully, after yesterday’s win in court, Coach Kennedy will have the opportunity to achieve many more wins on the football field.

Law & the Courts

This Day in Liberal Judicial Activism—June 28

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1971—In an opinion by the jurisprudentially rudderless Chief Justice Warren Burger, the Supreme Court in Lemon v. Kurtzman concocts an ahistorical and highly malleable test for Establishment Clause violations. Under the Lemon test, a law satisfies the Establishment Clause only if it has a secular purpose, has a principal or primary effect that neither advances nor inhibits religion, and does not cause an entanglement of government with religion. 

Two decades later, Justice Scalia will liken the Lemon test to “some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried.” He adds: 

“The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Sometimes, we take a middle course, calling its three prongs ‘no more than helpful signposts.’ Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.” 

In 2022 (just yesterday!), the Supreme Court will finally certify the death of the Lemon ghoul in Kennedy v. Bremerton School District.

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.” 

Law & the Courts

Recommended Reading on Dobbs

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Amidst the ocean of bad takes on Dobbs, there are some lush islands. I’ll highlight two here.

1. In the City Journal, law professor Joel Alicea, who six months ago wrote a piece on “Dobbs and the Fate of the Conservative Legal Movement,” follows up with an excellent essay titled “An Originalist Victory.” Alicea explains that “Dobbs is, without question, a triumph for originalism and a vindication of the support given to originalism by the conservative legal and political movements since Roe was decided almost half a century ago.” He addresses two critiques that contend otherwise.

One critique, from moral critics of originalism, contends (in Alicea’s summary) that “the overruling of Roe and Casey is not a momentous victory because it leaves abortion to be decided on a state-by-state basis.” That critique, he points out, involves a “combination of goalpost-shifting and heads-I-win-tails-you-lose argumentation [that] is as obvious as it is unconvincing.” Further:

To say that the overruling of Roe and Casey is not a monumental moral achievement because it did not ban abortion is like saying that the Thirteenth Amendment was not a monumental moral achievement because it did not guarantee full civil and political equality to black people. No doubt the efforts of the pro-life movement have only just begun, just as the efforts of those who sought to guarantee full civil and political equality for black people had only just begun with the Thirteenth Amendment’s ratification. But to diminish the importance of the crucial first step in light of the ultimate destination of our journey is as unsound morally as it is practically.

The second critique, from some originalists, is that Justice Alito’s majority opinion “is not originalist in methodology.” Alicea offers a long and intricate response to this critique. Here is an excerpt:

[T]he opinion devotes page after page to a detailed historical analysis of how abortion was treated by American law up through the ratification of the Fourteenth Amendment—precisely what one would expect in an originalist opinion. Though that analysis is presented as showing that a right to abortion is not “deeply rooted in [our] history and tradition” (rather than as showing that it is not part of the original meaning of the Fourteenth Amendment), in the context of this case, it serves the same function as demonstrating that a right to abortion is not supported by the original meaning of the Fourteenth Amendment. Indeed, the opinion’s staid refusal to affirmatively endorse substantive-due-process doctrine and its footnote pointing out that its Glucksberg analysis would carry over to an originalist analysis under the Privileges or Immunities Clause shows that the Court was thinking of its Glucksberg analysis as serving the same function as an originalist analysis. And the Court’s self-understanding of its analysis is right: the fact that abortion was so widely prohibited in the lead-up to and during the ratification of the Fourteenth Amendment should—given the range of potential original meanings of the amendment put forward in the scholarly literature—conclusively establish that abortion is not protected by any provision of the Fourteenth Amendment as originally understood.

2. On Public Discourse, law professor (and stalwart originalist) Michael Stokes Paulsen argues that “Dobbs may be the most important, magnificent, rightly decided Supreme Court case of all time.” Here’s his summary assessment that his essay amplifies:

[Dobbs] is as important as Brown v. Board of Education. It is as fundamental to the Constitution as Youngstown Sheet & Tube. It is as beautiful, in its own way, as Barnette. It is restorative of constitutional principle. It upholds the values of representative, democratic self-government, and the rule of law, at the same time that it supports the protection of fundamental human rights. It is literally a matter of life and death. It is potentially transformative of American society, for the better. It is a rare act of judicial courage and principle. In every way, Dobbs is a truly great decision.

Law & the Courts

Federal Laws Bar Mailing and Interstate Carriage of Abortion Drugs

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One longstanding federal statute (18 U.S.C. § 1461), amended as recently as 1994, bars use of the United States postal service for abortion drugs:

Every article or thing designed, adapted, or intended for producing abortion … and

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion …

Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.

Another longstanding federal statute (18 U.S.C. § 1462), amended as recently as 1996, bars use of “any express company or other common carrier … for carriage in interstate or foreign commerce” for “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

Each statute imposes a prison sentence of up to five years for a first offense and up to ten years for each additional offense.

The existence of Roe v. Wade might well have been a barrier to enforcement of these provisions. But now that Roe has been overruled, surely the Department of Justice will enforce these provisions, right? And even if Attorney General Garland and the Biden administration fail in their duty to pursue evenhanded enforcement of our laws, anyone who violates these provisions is vulnerable to prosecution in the next administration for violations that occur during this administration (subject, of course, to the relevant statute-of-limitations period, which I believe is five years).

These federal statutes ought also to mean that states have free rein to enact similar bans on carriage of abortion drugs. For there would surely be no conflict between the federal and state bans.

(There are First Amendment objections that can be brought against the parts of these statutes that limit advertising and other speech about abortion drugs, but those objections should have no bearing on their application to mailing and carrying abortion drugs.)

 

 

Law & the Courts

Court’s Excellent Ruling in Coach Kennedy Case

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By a 6-to-3 vote, the Supreme Court ruled today in Kennedy v. Bremerton School District that a school district violated the Free Exercise and Free Speech rights of a high-school football coach when it disciplined him for praying quietly after three games. Justice Gorsuch wrote the outstanding majority opinion, and the three liberal justices dissented.

Gorsuch’s majority opinion forcefully explains that the Free Exercise and Free Speech Clauses do not conflict with the Establishment Clause. In the process, it observes that the Court has already abandoned the notorious Lemon test under the Establishment Clause. And it emphasizes the increasingly unpopular point that “[r]espect for religious expressions is indispensable to life in a free and diverse Republic.”

Here is a quick outline of the key points in Gorsuch’s majority opinion (with many verbatim passages not cluttered with quotation marks):

1. Free Exercise Clause/threshold inquiry (pp. 11-14). Kennedy has shown that the school district burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable” (under Employment Division v. Smith test). The school district disciplined him only for his decision to persist in praying quietly without his players after three games in 2015. It sought to restrict his actions at least in part because of their religious character. Its policies were not neutral toward religion. Nor were they generally applicable: In response to Kennedy’s religious exercise, the district imposed on him a post-game obligation to supervise students that it did not impose on other members of the coaching staff.

2. Free Speech Clause/threshold inquiry (pp. 15-19). Kennedy’s speech was private speech, not governmental speech. During the postgame period when these prayers occurred, coaches were free to attend briefly to personal matters. (Justice Kavanaugh did not join this part and was evidently content to rely on the Free Exercise ground.)

3. The district did not meet its burden (pp. 19-31). Whether the standard under the Free Exercise Clause and the Free Speech Clause is strict scrutiny or intermediate scrutiny, the district loses.

a. The district is wrong to contend that its suspension of Kennedy was necessary to avoid violating the Establishment Clause. This Court has long ago abandoned the Lemon test and has instead instructed that the Establishment Clause must be interpreted by reference to historical practices and understandings.

b. The district is wrong to contend that Kennedy’s praying would have coerced students to pray. Kennedy’s private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion. Kennedy did not seek to direct any prayers to students or require anyone else to participate. Learning how to tolerate speech or prayer of all kinds is part of learning how to live in a pluralistic society, a trait of character essential to a tolerant citizenry.

There is no indication in the record that anyone expressed any coercion concerns to the district about the quiet, postgame prayers that Kennedy asked to continue and that led to his suspension. Nor is there any record evidence that students felt pressured to participate in these prayers. To the contrary, and as we have seen, not a single Bremerton student joined Kennedy’s quiet prayers following the three October 2015 games for which he was disciplined.

The district suggests that any visible religious conduct by a teacher or coach should be deemed—without more and as a matter of law— impermissibly coercive on students. Such a rule would be a sure sign that our Establishment Clause jurisprudence had gone off the rails. In the name of protecting religious liberty, the district would have us suppress it. Rather than respect the First Amendment’s double protection for religious expression, it would have us preference secular activity.

Addendum: I’ve only skimmed Justice Sotomayor’s 35-page dissent (slightly longer than Gorsuch’s majority). It sure doesn’t get off to a good start with this ridiculous first sentence:

This case is about whether a public school must permit a school official to kneel, bow his head, and say a prayer at the center of a school event. [Emphasis added.]

The “school event” here was a football game, and what happens at the “center” of a football game is very different from a coach’s kneeling at midfield (the “center” of the field) after the game has ended. It’s stupid wordplay for her to try to suggest otherwise.

Law & the Courts

This Day in Liberal Judicial Activism—June 27

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1979Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.” 

2005By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.  

Law & the Courts

This Day in Liberal Judicial Activism—June 26

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1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.  

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade. 

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.  

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA. 

2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.” 

 It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”  

Law & the Courts

This Day in Liberal Judicial Activism—June 25

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1962—“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.” 

In Engel v. Vitale, the Supreme Court holds that the Establishment Clause forbids a state board of education from directing that prayer to be said at the beginning of each school day, even if students who wish to do so are permitted to remain silent or to be excused from the room. 

In solo dissent, Justice Potter Stewart objects that the prayer is consistent with “the deeply entrenched and highly cherished spiritual traditions of our Nation—traditions which come down to us from those who almost two hundred years ago avowed their ‘firm Reliance on the Protection of divine Providence’ when they proclaimed the freedom and independence of this brave new world.” 

1979—Racing to fill the 35 new federal appellate judgeships that a Democrat-controlled Congress had given Jimmy Carter, Senate Judiciary Committee chairman Teddy Kennedy holds a confirmation hearing for seven Carter nominees to the Fifth Circuit. (Six of the seven nominations were to new seats.) All seven will be confirmed by the Senate a mere seventeen days later. 

1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

“As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”  

2008 By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.) 

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law. 

Law & the Courts

The Long Battle to Overturn Roe

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Some reflections on the long, and now successful, battle to overturn Roe:

1. I was a law clerk for Justice Scalia when the Court decided Planned Parenthood v. Casey in 1992. That case presented a golden opportunity for the Court to overturn Roe. But Justices O’Connor, Kennedy, and Souter instead combined to produce a joint majority opinion that was breathtaking in its grandiose misunderstanding of the Court’s role and that made me long for the sterile incoherence of Justice Blackmun’s opinion in Roe.

In their deservedly mocked declaration that “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” O’Connor, Kennedy, and Souter were asserting an unconstrained power to define for all Americans which particular interests should be beyond the bounds of citizens to address through legislation. And in their command that the “contending sides of a national controversy … end their national division by accepting a common mandate [supposedly] rooted in the Constitution,” they set forth what Scalia aptly labeled a “Nietzschean vision of us unelected, life tenured judges … leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals.’”

2. When Casey was decided, I doubted very much that Roe would ever be overturned. That doubt intensified a year later, when President Clinton appointed Ruth Bader Ginsburg to replace Justice Byron White, who had dissented both in Roe and Casey. As Senate Judiciary Committee counsel to Senator Orrin Hatch, I saw how unwilling so many Republican senators were to engage in a battle over judicial philosophy generally and over Roe in particular.

3. There are at least two large reasons that the long battle to overturn Roe has succeeded. First, pro-lifers did not heed Casey’s command that they give up on working to defend the lives of unborn human beings, and they remained a powerful political force in the Republican party, all the more so as nearly all Democrats had abandoned the pro-life cause. Second, the conservative legal movement grew and flourished, thanks in large part to the Federalist Society and to Justice Scalia and Justice Thomas. Over time, pro-lifers and the conservative legal movement drove Republican senators to fight for and against judicial nominations on the ground of judicial philosophy.

4. One episode that deserves special mention is President George W. Bush’s nomination of Harriet Miers, his White House counsel, to replace Justice Sandra Day O’Connor in early October 2005. That nomination elicited a firestorm of opposition from the conservative legal movement, which did not perceive Miers to be a conservative judicial stalwart and which did not want to see Bush repeat his father’s error in nominating the unknown David Souter to the Court in 1990. Judicial conservatives were seeking a justice with intellectual heft, the sort of justice who could, say, write a forceful opinion overturning Roe. Weeks later, Bush abandoned the Miers nomination and instead nominated Alito.

 

Law & the Courts

Dobbs and Rational-Basis Review

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Justice Samuel Alito’s magisterial majority opinion in Dobbs v. Jackson Women’s Health Organization displaces the abortion regime that the Supreme Court had imposed on the nation for the past five decades. Under that regime, the states were stripped of their perennial broad authority to bar and regulate abortion. In its 1973 decision in Roe v. Wade, the Court ruled that states could not prohibit abortion before “viability,” the point at which the baby is thought to be able to survive outside the mother’s womb—under current technology, at 23 or 24 weeks of gestation. And in its ruling 30 years ago in Planned Parenthood v. Casey, the Court adopted a subjective and amorphous “undue burden” standard for assessing regulations of abortion before viability.

In overruling Roe and Casey, the Court in Dobbs sets forth “rational-basis review” as the appropriate constitutional standard for review of challenges to abortion laws. Under this very deferential standard, a law governing abortion, like most other laws, “is entitled to a ‘strong presumption of validity’” and “must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests.” The Court expressly acknowledges a broad array of legitimate state interests, including “respect for and preservation of prenatal life at all stages of development” (i.e., from conception forward), “the preservation of the integrity of the medical profession,” “the mitigation of fetal pain,” and “the prevention of discrimination on the basis of race, sex, or disability.”

Dobbs puts an end to the Court’s intrusive micromanagement of abortion legislation. No longer will the Constitution be said to require (or even allow) courts to cast a jaundiced eye on abortion laws or to concoct supposedly damning evidence of an improper legislative intent.

Of the dozens of state laws that courts have enjoined under the Roe/Casey regime, it is doubtful that a single one would fail to satisfy rational-basis review. Indeed, the Court takes only one paragraph to conclude that the Mississippi law at issue in Dobbs, which would generally bar abortion after 15 weeks of gestation, rationally serves legitimate state interests. Similarly brisk dismissal of challenges to abortion laws should be routine under the rational-basis standard.

Law & the Courts

Supreme Court in Dobbs Overturns Roe

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In a crowning achievement of the conservative legal movement, the Supreme Court has—at long last!—overturned Roe v. Wade and restored abortion policy to our democratic processes. On a quick review, Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization is essentially the same as the draft that was leaked more than seven weeks ago (and which I summarized here). That isn’t surprising, as the countless criticisms of the draft ranged from the insubstantial to the ridiculous.

Alito and the other four members of the majority—Justices Thomas, Gorsuch, Kavanaugh, and Barrett— deserve ardent praise for their fidelity to the Constitution and for their courage. Even before the leak, the justices were subject to intense pressures that many armchair critics seem oblivious to. It would have been very tempting to look for a way to capitulate to these pressures, but these justices all remained strong.

Law & the Courts

This Day in Liberal Judicial Activism—June 24

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1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court! 

Law & the Courts

New York State Rifle & Pistol Association v. Bruen a Major Win for the Second Amendment

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In today’s 6–3 ruling in New York State Rifle & Pistol Association v. Bruen, the Supreme Court vindicated the Second Amendment by invalidating New York’s denial of petitioners’ applications for concealed-carry licenses for self-defense. New York is one of only seven jurisdictions that had similarly onerous restrictions conditioning the issuance of a license to carry on a citizen’s showing of an additional special need.

Under New York’s licensing law, anyone wanting to carry a concealed handgun outside his or her home or place of business for self-defense must show, among other requirements, “proper cause.” To meet this high standard, applicants had to show something more than the mere desire to protect themselves or their property. Absent such a showing, only a “restricted” license for public carry may be issued, and that would confine permission to carry a firearm to a limited purpose like hunting or employment.

In New York, “need for self-protection” must be “distinguishable from that of the general community,” a standard interpreted by state courts so rigidly that they held it insufficient to apply to those who live or work in an area “noted for criminal activity” in the absence of evidence of “particular threats, attacks or other extraordinary danger to personal safety.”

In a scholarly opinion written by Justice Clarence Thomas, the Court applied its precedents in District of Columbia v. Heller (2008) and McDonald v. Chicago (2010), which recognized the Second Amendment as protecting an individual right for law-abiding citizens to possess a handgun at home for self-defense. Lower court decisions since those cases were decided adopted a “two-step” framework for Second Amendment challenges that looks not only to history, but also to a “means-end scrutiny” of gun laws. The latter notion in this context entails case-by-case examination of how worthwhile a particular law is, a standard so flimsy as to be difficult to distinguish from legislating. Quoting Heller, Thomas observed, “A constitutional guarantee subject to future judges’ assessments of its use­fulness is no constitutional guarantee at all.”

The Court articulated as the applicable standard:

[W]hen the Second Amend­ment’s plain text covers an individual’s conduct, the Consti­tution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is con­sistent with this Nation’s historical tradition of firearm reg­ulation. Only if a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” [citation omitted]

This standard clearly follows from both Heller and McDonald. The point of a fundamental right is that one must able to exercise it, and New York’s discretionary licensing scheme was simply too demanding to meet constitutional muster. Indeed, the phrase “keep and bear arms” in the Second Amendment would be rendered practically meaningless if New York’s gun regulations had been allowed to stand because then the average citizen then could only keep a gun at home, not bear it elsewhere.

Likewise, Thomas noted that the right to bear arms in public for self-defense is not (quoting McDonald) “a second-class right” subject to a different standard from that governing “the other Bill of Rights guarantees.” Just as the Court would not require individuals to “demonstrat[e] to government officers some special need” before they can exercise their speech or free exercise rights under the First Amendment or the right to confront witnesses against them under the Sixth Amendment, the Second Amendment rights should not be subjected to a different analytical framework.

Justice Stephen Breyer’s dissent, which was joined by Justices Sonia Sotomayor and Elena Kagan, argued in favor of a means-end standard, but it focused on policy arguments in favor of New York’s law, as if to admit to the weakness of its advocated level of scrutiny. The opinion cited a litany of statistics on gun violence and even noted the greater population density of the restrictive jurisdictions, as if that had any bearing on constitutional rights. If anything, the need for self-defense that Heller recognized to be at the core of the Second Amendment is greater for those who live or work in dangerous places and who find no solace under New York’s gun laws.

Justice Samuel Alito penned a concurring opinion that exposed the irrelevancy of much of Breyer’s exposition on gun policy to the issue before the Court and chided the dissent for a one-sided presentation of much of the data it presented. Justice Brett Kavanaugh’s concurrence reiterated language from Heller that was also quoted in McDonald: “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of fire­arms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

Breyer professed a deference to elected officials—“the question of firearm regulation . . . should be solved by legislatures rather than courts”—that of course is situational and oblivious to constitutional text. As we have seen (and surely shall soon see again) in contexts such as abortion, where a right the liberal bloc favors is not in the Constitution, they will gladly steamroll legislatures. Yet they rail against judicial intervention when a right they disfavor is explicitly stated in constitutional text, as in the Second Amendment.

Breyer, who had dissented in Heller, made a feeble attempt to claim he was now deferring to that precedent as a matter of stare decisis, only to repeatedly add why he found that decision’s historical observations “questionable.” “Many experts now tell us that the Court got it wrong in a number of ways,” he noted in reference to liberal historians who supported his view, just three sentences after claiming that he was not trying to “relitigate Heller.” Sure he wasn’t.

Fortunately, today’s ruling commanded a strong majority. This is a reminder of how far we have come to have a majority on the Court who look primarily to the text, history, and tradition when analyzing constitutional questions rather than acting like legislators.