Law & the Courts

Supreme Court Gives Ninth Circuit a Chance to Block the Climate-Change Lawsuit

On Friday, the Supreme Court issued an order denying the federal government’s motion for a stay of the impending trial in the wildly adventuresome climate-change lawsuit in Juliana v. United States. At first blush, this might seem like a significant loss for the federal government. But the text of the Court’s order strongly suggests otherwise.

Most importantly, the Court makes clear that it is denying the government’s motion “because adequate relief may be available in the United States Court of Appeals for the Ninth Circuit.” Specifically, the government may seek mandamus relief from the Ninth Circuit. The Court points out that even though a Ninth Circuit panel has twice denied the government’s request for mandamus relief at earlier stages of the litigation (see opinions from March and July), those denials were “without prejudice” and were based on “reasons [that] are, to a large extent, no longer pertinent.”

The Court’s order also suggests substantial agreement with the government’s argument that the lawsuit is (in the Court’s paraphrase) “beyond the limits of Article III.” The Court states:

The Government notes [not “argues”] that the suit is based on an assortment of unprecedented legal theories, such as a substantive due process right to certain climate conditions, and an equal protection right to live in the same climate as enjoyed by prior generations. The Government further points out that plaintiffs ask the District Court to create a “national remedial plan” to stabilize the climate and “restore the Earth’s energy balance.” [Emphasis added.]

I gather that if* the government petitions the Ninth Circuit for a writ of mandamus, the same very liberal panel—chief judge Sidney Thomas, Marsha Berzon, and Michelle Friedland—that denied its two previous requests will rule on that petition. We’ll see if they grant relief this time. If not, my bet is that the Supreme Court will then step in.

* Update: The government filed such a petition on 11/5.

Law & the Courts

This Day in Liberal Judicial Activism—November 5

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”

Law & the Courts

This Day in Liberal Judicial Activism—November 4

(Shutterstock)

1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues. 

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.”

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism.

2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.

Law & the Courts

Dispute over Use of Inadmissible Opinion Testimony for Class Certification

In a strong dissent from denial of rehearing en banc yesterday, Ninth Circuit judge Carlos Bea, joined by four of his colleagues, objected to a panel ruling (in Sali v. Corona Regional Medical Center) that, as Bea summed it up, “accepted the undisputedly inadmissible opinion of plaintiffs’ paralegal … that the plaintiffs have damages typical of the class sought to be certified.” (Emphasis in original.) Bea argues that the panel’s holding that opinion testimony need not be admissible in order to be used at the class-certification stage “is contrary to our own precedent [and] also contrary to decisions of four other circuits and clear Supreme Court guidance.”

Look for this one to get the attention of the Supreme Court if a certiorari petition is filed.

Law & the Courts

This Day in Liberal Judicial Activism—November 2

(Pixabay)

2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise.

Law & the Courts

Michael Paulsen on the ‘Logical Necessity’ of Originalism

Having fallen behind on my reading, I missed the excellent series of essays in the recent (Oct. 1) issue of National Review on the theme “In Defense of the Constitutional Order.” I’ll highlight here the piece by law professor (and sometime-but-not-often-enough Bench Memos contributor) Michael Stokes Paulsen titled “Originalism: A Logical Necessity.” Here is an excerpt:

There are many good arguments in favor of Originalism: It is less subject to manipulation, produces greater clarity and consistency, better preserves democratic decision-making, and frequently yields better results than any other method. All of these points are true and important.

But the strongest argument for Originalism is simply that it is the method prescribed by the Constitution itself. It is the only method consistent with taking the Constitution on its own terms, as a binding, written document intended to function as supreme law. It is the only method consistent with the terms on which the Constitution claims to be authoritative. It is the only method consistent with the very idea of written constitutionalism. If what one is doing is interpreting a written constitution intended to serve as governing law, as opposed to engaging in some other project, one must take that constitution (literally) on its own terms.

What does the Constitution say about how it is to be interpreted? Quite a lot, actually: First, it designates a single, specific, authoritative written text as supreme law. This is hugely significant. The Constitution says, in express terms, that it is the written text of the Constitution that has been adopted by the People and that is authoritative and binding. “We the People of the United States . . . do ordain and establish this Constitution for the United States of America,” the Preamble states. “This Constitution . . . shall be the supreme Law of the Land,” Article VI declares. Plainly, the reference to “this Constitution” is to the written text — the words of the document itself. The text constitutes the Constitution. The text specifies the text as the object of interpretation.

Second, by virtue of the specificity of its designation of “This Constitution” as supreme law, the Constitution seems clearly to imply that the written text is exclusive. Nothing not in the document constitutes any part of “This Constitution.”

Third, the Constitution specifies that “this Constitution” — the written text — is binding on judges and all other government officials. Right after designating the Constitution supreme law, Article VI provides that “the Judges in every State shall be bound thereby.” It further specifies that all federal and state officers, of every branch, “shall be bound by Oath or Affirmation, to support this Constitution.” All who exercise authority under the Constitution’s auspices swear an oath of fidelity to abide by the supremacy and binding nature of the Constitution’s text.

Finally, Article V provides an elaborate set of procedures and criteria for making amendments to the text, which then become part of “this Constitution.” The logic of Article V suggests that the document otherwise is permanent and must be taken as is. One must change the words of the text in order to change the content, the meaning, of “this Constitution.”

The conclusion seems inescapable: The Constitution’s text prescribes fidelity to a single, specific, exclusive, defined, determinate written legal text, designed to serve as permanent, supreme law, the content of which can be changed only by a formal process of changing the text itself.

Law & the Courts

Next Week’s Senate Elections

Pardon me for spelling out the obvious, but next week’s Senate elections will have huge ramifications for judicial confirmations in 2019 and 2020. (Much less so, if at all, for the 57 or so judicial nominees who are already, or who will soon be, on the Senate floor for votes in the closing weeks of 2018.)

Republicans currently have a 51-49 margin in the Senate. If the Republicans retain or expand their control of the Senate, you can expect confirmations to the lower courts to continue at roughly the same impressive pace as over the past two years. Conversely, if Democrats gain control of the Senate, it is unlikely that any nominees would be confirmed, unless they are basically selected by home-state Democratic senators.

I’d ballpark at 15% or so the probability that another Supreme Court vacancy will arise in the next two years. If a vacancy does arise, the path to confirmation will be much smoother if Republicans increase their numbers to 52 or more. And there will be no path to confirmation for a judicial conservative if Democrats take control of the Senate.

Law & the Courts

Heritage Foundation Debate on Judicial Supremacy

At noon tomorrow (Thursday), I’ll be taking part in a debate at the Heritage Foundation on the proposition “Resolved: Congress and the President are required to obey the Supreme Court’s interpretations of the Constitution.” Roger Pilon of the Cato Institute will defend that proposition, and I will argue against it.

Former Attorney General (and Heritage Foundation’s Ronald Reagan Distinguished Fellow Emeritus) Ed Meese will introduce the event, and Heritage’s Tom Jipping (a frequent blogger here at Bench Memos) will moderate the debate. The event will be live-streamed.

The debate over judicial supremacy is one that does not divide scholars along the usual ideological lines. I have set forth my general views on the topic in my review of the excellent book on the Constitution by law professor Michael Stokes Paulsen and his son Luke (as well as in numerous Bench Memos posts in recent years).

Law & the Courts

This Day in Liberal Judicial Activism—October 31

(Shutterstock)

1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.”

1979—Give Harry Pregerson credit for candor. At the Senate Judiciary Committee hearing on his nomination to a Ninth Circuit seat, Pregerson testifies that if what the law required ran against his conscience, “I would try and find a way to follow my conscience and do what I perceived to be right and just.” (No, he isn’t talking about recusing.)

Over the ensuing four decades up to, and even beyond, his death in November 2017, Pregerson, though less flamboyantly outspoken than his colleague (and fellow Carter appointee) Stephen Reinhardt, will prove himself nearly Reinhardt’s match in his feats of lawless judicial activism.

Law & the Courts

This Day in Liberal Judicial Activism—October 30

(Wikimedia Commons)

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statement, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.

Law & the Courts

From OIRA to the D.C. Circuit?

Senate confirmation of Associate Justice Brett Kavanaugh has opened up a seat on the U.S. Court of Appeals for the D.C. Circuit for President Trump to fill. This presents a tremendous opportunity. This morning, Axios reported that President Trump has interviewed Neomi Rao for the nomination. She would be an excellent choice.

Rao currently serves as Administrator of the Office of Information and Regulatory Affairs in the Office of Management and Budget. As such, she is the administration’s “regulatory czar”. In this role, she oversees implementation of the Administration’s deregulatory agenda and regulation-related Executive Orders. Given that regulatory matters make up the lion’s share of the D.C. Circuit’s docket, she would be a perfect fit for this court.

Prior to joining the Administration, Rao was a professor at the George Mason University Antonin Scalia Law School. She also worked in White House Counsel’s office during the George W. Bush Administration, and for the Senate Judiciary Committee. She is a graduate of Yale University and the University of Chicago Law School, and clerked for Justice Clarence Thomas and Judge J. Harvie Wilkinson of the U.S. Court of Appeals for the Fourth Circuit.

In the 1980s, the Reagan Administration recognized the importance of the D.C. Circuit and, in particular, the value of adding intellectual firepower to the court through the nomination of academics. This strategy resulted in the nominations of Antonin Scalia, Robert Bork, Douglas Ginsburg, and Stephen Williams to this court. Nominating Neomi Rao would be a choice in this mold. She is a brilliant lawyer and would add substantial intellectual firepower to the D.C. Circuit. I may be biased, as I have known her for over twenty years, but I find it hard to imagine a better pick to fill the Kavanaugh seat.

Law & the Courts

So Now NBC News Tells Us

Attorney Michael Avenatti speaks to reporters in Los Angeles, Calif., September 24, 2018. (Andrew Cullen/Reuters)

Yesterday, Senate Judiciary Committee chairman Charles Grassley asked the Department of Justice to investigate whether Julie Swetnick and her attorney, Michael Avenatti, illegally conspired to provide materially false statements or otherwise obstruct the Committee’s investigation of allegations against Brett Kavanaugh. Senator Grassley’s letter to DOJ may be found here.

Also yesterday, NBC News reported on “new questions” about Swetnick’s and Avenatti’s claims about Justice Kavanaugh. The report notes that when NBC interviewed Swetnick about her allegations against Kavanaugh, she refused to corroborate some of the claims made in her sworn statement or by her attorney, Avenatti. (NBC aired the interview anyway.)

The report also notes that a second woman, identified by Avenatti as someone who could corroborate Swetnick’s claims, also provided inconsistent accounts and refused to reiterate specific charges made in her sworn statement provided to the network by Avenatti. For example, the woman’s statement claims she witnessed Kavanaugh “spike” the punch at high school parties in an effort to get girls drunk. Yet when asked about this by NBC News, “the same woman told NBC News a different story,” much like Swetnick.

What’s interesting about the NBC News story is that all of the relevant interviews and reporting occurred weeks ago, while the Senate was still considering whether to confirm Brett Kavanaugh to the Supreme Court. Yet only now is NBC disclosing this information and claiming there are “new questions” about Avenatti’s allegations.

To be fair, Swetnick’s allegations fell apart rather quickly. Nonetheless, this additional information would seem to have been particularly relevant when the Senate was still considering Kavanaugh’s nomination. Why, then, is NBC News only reporting on these discrepancies now?

Law & the Courts

Re: Improving the Ninth Circuit

In this post five months ago, I explained why it would be a mistake to write off the Ninth Circuit as a lost cause. Among other things, I discussed how the Ninth Circuit’s unique “limited en banc panel” mechanism means that a sizeable increase in the number of Republican appointees can dramatically improve Ninth Circuit law even if that number falls short of a majority.

Since that time, President Trump has appointed two judges to that court and has made or announced* five additional nominations, including four to seats previously held by appointees of Democratic presidents. On the downside, there was the fiasco in which the nomination of Ryan Bounds was withdrawn right on the cusp of a Senate floor vote.

In terms of admittedly crude numbers, here’s where things now stand: For its 29 active authorized judgeships, the Ninth Circuit now has 16 appointees of Democratic presidents, 7 appointees of Republican presidents, and 6 vacancies. This 16-7-6 configuration is only slightly changed from the 19-6-4 configuration when President Trump took office.

Yesterday, the Senate Judiciary Committee held hearings on the Ninth Circuit nominations of Eric Miller and Bridget Bade. The Senate Republican leadership is intent on confirming those nominations by year-end. That would result in a 16-9-4 configuration.

If and when the three recently announced nominations are confirmed, the Ninth Circuit will have 16 Democratic appointees, 12 Republican appointees, and 1 vacancy.

By my count, 8 of the 16 Democratic appointees are eligible to retire or take senior status. But who knows whether any will choose to do so any time soon?

* The three Ninth Circuit nominations that the White House announced on October 10 appear not yet to have been submitted to the Senate.

Law & the Courts

This Day in Liberal Judicial Activism—October 25

(Chip East/Reuters)

1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“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,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court.

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples.

Law & the Courts

This Day in Liberal Judicial Activism—October 23

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

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