As I reported nearly a month ago, on June 20, in a notable victory for the Trump administration, a Ninth Circuit panel granted the motion by the U.S. Department of Health and Human Services for a stay of orders of three separate district courts that preliminarily enjoined HHS from implementing its revised Title X regulations imposing restrictions on funding of pre-pregnancy family planning services.
Some interesting things have happened since then:
First, on July 3, the Ninth Circuit granted rehearing en banc of the matter and ordered that the panel’s ruling “shall not be cited as precedent” in the Ninth Circuit.
One experienced court-watcher told me that he found it extraordinary that the Ninth Circuit would grant rehearing en banc on a motion for a stay (as distinct from a final ruling on the appeal). That action presumably had something to do with the subject matter of the motion, the existence of a majority of liberal judges on the Ninth Circuit, and the fact that the panel ruling was issued by three Republican appointees.
Second, just last Thursday, July 11, the eleven-member en banc panel selected to handle the rehearing denied motions to stay the original panel’s June 20 stay order. (See Circuit Rule 35-3 for more on the Ninth Circuit’s unique “limited en banc court.”) The panel divided seven to four, with the four dissenters being the Democratic appointees on the panel. The original panel’s stay order thus remains in effect.
It’s interesting that seven Republican appointees were drawn for the limited en banc panel. Three Democratic appointees recused themselves from the matter, so that would mean, I think, that the draw of ten judges (on top of the chief judge, Democratic appointee Sidney Thomas, who sits on every limited en banc panel) occurred from a pool of twelve Democratic appointees and eleven Republican appointees.
There is obviously some luck in drawing seven Republican appointees from that pool, but President Trump’s impressive success in rebalancing the composition of the Ninth Circuit made the odds much less formidable than they previously were.
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.
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.
2006—InUnited 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.
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.
Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?
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.
Last month, the New York Timesran a story about left-wing dark-money groups preparing a secret list of judges in case a Democrat is elected president in 2020. According to the Times, “liberal judicial activists have begun a new effort to recommend possible successors who could immediately be funneled into the judicial pipeline.”
The Times reported that the new initiative was called “Building the Bench,” and was being underwritten by the Alliance for Justice, as well as a number of other (unnamed) “liberal advocacy groups and labor unions.” But here was the kicker: “Unlike the unprecedented Trump list, the liberal groups do not intend to make their recommendations public.”
I responded in this space, wondering why Democratic candidates and these groups were so afraid to say exactly who they would want to nominate to the Supreme Court. My organization, JCN, also ran an ad during the first Democratic debates. We asked: “What are they hiding?” and urged the candidates to release their lists. In 2016, President Trump told voters exactly who he would nominate to fill the seat left vacant by Justice Antonin Scalia. Why all the secrecy from Democrats?
But Nan Aron, President of the Alliance for Justice, has vehemently denied the existence of a list. Yesterday Aron told the Daily Beast, “I’m not sure where Carrie Severino got the idea of a list.” Aron tried to set the record straight, saying that AFJ is not creating a list but rather “evaluating potential judicial nominees for a future Democratic president.”
Ohhhhh. I see. They are “evaluating potential judicial nominees.” Who happen to be unnamed. This is more of, say, a collection? DEFINITELY NOT A SECRET LIST.
Laurie Kinney, communications director for AFJ, told Yahoo News similarly said that her organization is “identifying potential judicial nominees for a future Democratic administration.” Kinney went on to tell Yahoo News that AFJ was “trying to sound out progressives about promising lawyers who could be stars on the federal bench in a Democratic administration.”
And apparently, none of those promising lawyers Kinney described will be a part of anything that could possibly resemble something that could be fairly described as A LIST.
Nan Aron gave a helpful clarifying quote to Yahoo News: “Building the Bench is about making the next administration and senators aware of the broad pool of legal talent that should be considered for appointments to the federal bench.”
I see now. “A pool” of names. What crazy person could ever think that was the same thing as a list? A pool is completely different. A list would have names organized in a column. Maybe multiple columns. In a pool, the names would be all jumbled up. Perhaps this would be more like picking names out of a hat? Nobody would ever call that a list.
So what do we know now? Pretty much exactly what we did a month ago. A liberal dark-money group is claiming to be building a secret list of judges in the event that a Democrat wins in 2020 and there is a Supreme Court vacancy.
One thing we do know more about now is the identity of some of the other liberal groups that might be involved. AFJ Aron told Bloomberg that it “will work with progressive organizations including Planned Parenthood, the Mexican American Legal Defense and Educational Fund, People For the American Way, and the NAACP Legal Defense Fund” to identify potential judges.
Aron also makes the laughable claim that Building the Bench will be a “much more open, transparent, and democratic process than exists on the far right.”
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.
This afternoon, a three-judge panel of the U.S. Court of Appeals for the Fifth Circuit will hear oral argument in Texas v. United States, the latest challenge to the lawfulness of the Affordable Care Act. This suit, filed by multiple state attorneys general, argues that the entire ACA must fall because the so-called individual mandate, stripped of its constitutionality saving tax penalty, is unconstitutional. Late last year, a federal district court agreed, and that decision is now being appealed.
As some readers my know, while I supported prior challenges to the ACA and its implementation, I do not believe this suit has much merit. Over at the Volokh Conspiracy, I have a post summarizing the issues and linking to more detailed analyses. My bottom line: This suit should fail and ultimately will fail, if not before the Fifth Circuit, then before the Supreme Court.
A group of 206 corporations has submitted an amicus brief in the three Supreme Court cases to be argued next term that present the question whether Title VII’s ban on employment practices that “discriminate … on the basis of … sex” prohibits discrimination on the basis of sexual orientation and gender identity. The corporations submit their brief in support of the plaintiff employees who argue that Title VII does prohibit such discrimination.
1. On its own terms, the corporations’ brief makes little or no sense.
a. The corporations argue that they “share a common interest in equality because they know that ending discrimination in the workplace is good for business, employees, and the U.S. economy as a whole.” Among other things, they contend that “[d]iversity is a key factor in U.S. businesses’ ability to compete and succeed in the modern global economy”; that “LGBT-inclusive workplaces result in stronger work performance by all employees”; and that “companies with LGBT-inclusive workplaces also have better financial outcomes.”
Let’s assume that these assertions are unqualifiedly true. If they are, then the “woke” corporations that embrace them will have a significant competitive advantage over the corporations that don’t. Why would the corporate signatories to the amicus brief want to give away their competitive advantage?
b. The corporations argue that “[f]or years, many businesses have operated under the expectation that Title VII prohibits sexual orientation and gender identity discrimination without incurring oppressive costs or burdens.” That would be a strange “expectation” to have. Until a mere four years ago, when the EEOC first opined that Title VII bars sexual-orientation discrimination, every federal court of appeals that had addressed the question over a period of decades had ruled to the contrary. So the interests that the corporations assert in the “clarity, predictability, reliability and efficiency that comes [sic] from the uniform application of federal law” ought to be in favor of preserving the longstanding rule.
c. The corporations contend that “voluntary company initiatives are not a substitute for the force of law.” That might well be true in the abstract. But these corporations could impose on themselves obligations (e.g., low-cost arbitration with arbitrator selected by employee from list compiled by LGBT groups, stipulation in advance to large damages award for violations, personal vicarious liability of corporate officers) that are, from an employee’s perspective, much more valuable than a prospective Title VII lawsuit. If they truly believe their rhetoric, why don’t they? Wouldn’t that just enhance their “ability to compete and succeed in the modern global economy”?
2. For all their talk about their commitment to “equality in the workplace,” these corporations are strangely silent about some critical aspects of what their norm of non-discrimination means in practice.
Do these corporations, for example, allow individuals who identify as transgender to use the common restrooms and shower facilities (e.g., in corporate gyms) of the sex they identify as, on exactly the same terms as members of that sex?
Do these corporations even continue to maintain sex-segregated restrooms? If so, how can they reconcile that with the theory of Title VII that they are supporting? (Allowing a man who identifies as female to use a women’s restroom while barring a man who identifies as male from doing so would seem a clear case of discrimination on the basis of gender identity. After all, the only relevant difference between the two men is that they have different gender identities.)
3. The assertion by these corporations that all businesses have an interest in having the same “LGBT-inclusive workplaces” assumes that other business owners aren’t intelligent enough to discern their own interests. But it just might be, say, that the operator of a local funeral home knows his own business better than these corporations do. (I am of course not contending that the laws should always allow businesses to pursue their own best interests; I am simply responding to the feeble business argument that the corporations are making.)
4. The entire brief would seem to be nothing more than a showy exercise in virtue-signaling.
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.”
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.”
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.
In an op-ed in the July 5 Wall Street Journal, David B. Rivkin, Jr. and Gilson B. Gray argue that the Trump administration should rely upon what they see as an overlooked mandate of the Constitution. Here is how Rivkin and Gray put it: “The Constitution itself requires the collection of citizenship information.” Where, you ask? They continue:
Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.
The ellipses employed by the authors are too convenient. Here is the full text of Section 2 of the Fourteenth Amendment (with my emphasis):
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
A little later, Rivkin and Gray characterize the amendment’s requirement this way: “The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).” While the concluding parenthetical concession is true, the foregoing sentence is false.
Section 2 requires that a state’s representation in the House—and thus also its votes in the electoral college—be reduced according to the proportion of its male citizens age 21 or higher, not disqualified from voting for rebellion or criminal history, who are prevented from voting. Let us suppose, for instance, that Louisiana, whose population today is about one-third African-American, simply denied all those citizens the right to vote. If the black male citizens over 21 wrongly denied the suffrage amounted to one-third of all male citizens over 21 in Louisiana, the state would lose two of its six seats in the House of Representatives (and two of its eight electoral votes).
Note that the amendment does not actually protect anyone’s voting rights by any direct enforcement action of the federal government; it simply imposes a cost on states that deny the suffrage—and again, only if they deny it to male citizens 21 or more years of age. The population of voters today, of course, includes all adult citizens of both sexes who are at least 18. But it is the worst kind of “keeping the Constitution in tune with the times” nonsense to say that today “male citizens over 21” actually means “all eligible voters,” as Rivkin and Gray blithely claim.
In our hypothetical Louisiana example above, the state would lose two seats in the House if Section 2 were enforced. But it never has been, and one could hardly call the provision self-executing, in the way that provisions like due process and equal protection of the laws are self-executing—that is, at least in some respects by judicial enforcement of their terms against offending states. Under its powers granted by Section 5 of the amendment “to enforce, by appropriate legislation, the provisions” of the previous sections, Congress would have to legislate some scheme by which an assessment has been made of whether male citizens over 21 have been improperly prevented from voting, followed by a correctly proportioned reduction of an offending state’s representation in the House—with the concomitant redistricting that this in turn would require.
It’s really no wonder that Section 2 of the Fourteenth Amendment has never been enforced. It would be both complicated and unpleasant to attempt it. No doubt realizing that this roundabout mechanism for securing the suffrage of the former slaves of the South was ineffectual, Congress proposed and the states ratified the Fifteenth Amendment just two years later. As historian Paul Moreno notes, “The Fifteenth Amendment made Section 2 [of the Fourteenth] superfluous.” And although even this last Reconstruction amendment awaited real enforcement for 95 years before the Voting Rights Act was enacted, at least the Fifteenth had the textual advantage of making no reference to sex or age, simply forbidding denial of the suffrage on the basis of “race, color, or previous condition of servitude.” And so unlike Section 2 of the Fourteenth Amendment, the Fifteenth was not doomed to be an anachronism.
Can the president, as Rivkin and Gray suggest, simply issue an executive order adding a citizenship question to the census in order to “comply with the requirements of Section 2”? Not, I should think, if the Congress has not asked for the pertinent information on male citizens over 21 denied the vote, in order to set in motion a reduction of offending states’ congressional representation. And no enforcement legislation exists requiring any such information.
A little over a week ago, Chief Justice Roberts rejected the Trump administration’s stated reason for the citizenship question as pretextual. Whether that decision was right or wrong, the Rivkin-Gray gambit looks like a dubious new pretext for adding a citizenship question to the census.
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.
2008—Nearly 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.
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.)
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