Law & the Courts

Where Are the Women?

The Supreme Court in Washington, D.C., January 21, 2020 (Will Dunham/Reuters)

This week’s Supreme Court argument in the Little Sisters of the Poor case featured an impassioned statement by Justice Ginsburg about contraception. Several times during the argument, she claimed that the federal regulations offering religious freedom for the Little Sisters and others “tossed to the wind” congressional intent to provide women free contraception. She invoked the specter of desperate women spending scarce time and money searching for affordable contraception beyond the confines of their health insurance.

It was encouraging that Justice Ginsburg was able to join the Court’s argument by telephone from her hospital room; her voice was strong and her arguments impassioned. But she didn’t appear to understand that, even now, the states involved in the current litigation have no evidence that any woman has been unable to get contraception because of any kind of health-insurance exemption, religious or otherwise. In fact, there doesn’t seem to be any woman who has been “tossed to the wind” at all.

It is difficult to overstate this hole in the states’ argument, and in the entire nearly decade-long effort to defeat religious exemptions to the contraception mandate. The claim from Justice Ginsburg and others is that providing religious exemptions will harm women who will not get contraceptive coverage from their own employer. Yet nine years into the contraceptive mandate — and after nine years of experience with a broad range of exemptions — we have seen the opposite. Tens of millions of Americans continue to work for employers with grandfathered plans, which have been exempt from the mandate all along. Tens of millions more work for small employers who are not required by the law to provide any health insurance at all. Thousands of houses of worship and related organizations have also been exempted since the Obama administration. And thousands more organizations received the benefit of injunctions from the last round of litigation.

So where are the women Justice Ginsburg imagines? They don’t exist. During the oral argument and in their briefs, lawyers for the Little Sisters and the United States repeatedly noted the absence of any evidence that any women have been harmed; Pennsylvania has made no response. Why? Because contraceptives are widely available and accessible in our society. In fact, the Obama administration told the Supreme Court four years ago that an employee of an exempt employer can “obtain coverage through a family member’s employer, through an individual insurance policy purchased on an Exchange or directly from an insurer, or through Medicaid or another government program” (U.S. Br. at 65, Zubik v. Burwell). As the Obama administration explained, “all of those sources would include contraceptive coverage.” The Trump administration has additionally made contraception available under the federal Title X program to women unable to access it through their employer’s health plan.

These alternatives apparently work so well that the states trying the defeat the religious exemption can’t find any example of a situation in which an exemption (religious or otherwise) prevented a woman from getting coverage. Indeed, Pennsylvania told the Court that the status quo in 2018 — which included all of the exemptions described above — was great and had fully solved any problem. Pennsylvania even submitted declarations from doctors about how women were not having any difficulty with insurance for contraception. (Joint Appendix at 272 and 295, Pennsylvania v. Trump, [3d Cir.])

So no women are being “tossed to the wind” here. Instead, women who want contraception are getting it from many other available sources. This is why states can’t find a single person claiming to be harmed, despite the thousands upon thousands of employers who do not cover contraceptives for any reason — whether it be financial, political (“If you like your plan you can keep it”), or religious. Not one.

Interestingly, unlike Justices Ginsburg and Sotomayor, Justice Kagan did not sound the theme of harm to women as a result of religious exemptions for the Little Sisters of the Poor. Instead, she suggested during oral argument that the government may have made its exemption too broad, because some employers without religious objections might nevertheless switch from the so-called “accommodation” (in which employees still receive contraception on the plan) to the full exemption. But neither Justice Kagan nor any other Justice offered any reason to believe that there are employers who fit this mold. Those who object to the contraceptive mandate or its accommodation have probably already sued over it; and those who don’t are not likely to have any reason to refuse coverage at all. After all, the vast majority of employers have covered contraception in their health plans for many years. But even if these employers decided to claim an exemption, it wouldn’t matter much to women seeking contraception; as the Obama administration acknowledged, there are so many other sources available to them.

In the end, the Court heard yesterday at great length from three very able advocates — yet received not a word of evidence showing that religious exemptions will harm women. It’s time for the Court to put an end to this long-running saga by acknowledging that the contraception mandate requires a religious exemption.

Law & the Courts

200-Judge Letter Against Draft Advisory Opinion on Judicial Membership


On top of Carrie Severino’s post and my own about the inane attack on D.C. Circuit nominee (and current federal district judge) Justin Walker for signing his name to it, I think it worthwhile to review the excellent letter from 200-plus judges in opposition to the Code of Conduct Committee’s proposed opinion advising that federal judges may not be members of the Federalist Society but may be members of the American Bar Association. As I’ve noted, the signatories who were appointed by Democratic presidents include federal appellate judges José Cabranes, Julie Carnes, Frank Hull, Cheryl Krause, Stanley Marcus, and Richard Tallman. (I’m pleased to have made the proposed opinion public back in January, and I’ve previously critiqued it in various posts, including here, here, and here.)

I offer here an overview of the letter and some excerpts from it, but I encourage interested readers to read its crisp 7-1/2 pages on their own.

The judges summarize their objections up front:

We write to express our deep concern with the exposure draft of Advisory Opinion No. 117, recently issued by the Judicial Conference’s Code of Conduct Committee. We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences. The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.

They frame their discussion by highlighting that the Code of Conduct and its Commentary emphasize that “a judge should not become isolated from the society in which the judge lives” and affirmatively “encourage[]” judges to “contribute to the law” through “organization[s] dedicated to the law.” (I’m quoting the Commentary to Canon 4 that the letter invokes.)

The judges explain that the Committee’s previous position that membership in the Federalist Society is consistent with the Code of Conduct is correct and that the Committee’s reasons for departing from “its long-held understanding of the Code” are unsound:

Take the claim that the Federalist Society advocates particular policies, rather than the general improvement of the law. The draft fails to identify a single “policy position” taken by the Federalist Society. That is because—to the best of our collective knowledge—the Federalist Society has never, in its several decades of existence, lobbied a policymaking body, filed an amicus brief, or otherwise advocated any policy change. We are at a loss to understand how membership can be seen as “indirect advocacy” of the organization’s policy positions when the organization itself takes no policy positions.

The most the Committee can say is that the Federalist Society “describes itself as ‘a group of conservatives and libertarians dedicated to reforming the current legal order’” and that it has “promoted appreciation for the ‘role of separation of powers; federalism; limited, constitutional government; and the rule of law in protecting individual freedom and traditional values.’” These broad, bedrock principles lie at the foundation of our American constitutional order. Joining an organization that supports these principles simply cannot prohibit judicial service. Adherence to these principles at most suggests partiality in favor of the Constitution itself, which all judges must support and defend.

The judges also argue forcefully that the draft opinion’s “disparate treatment” of the Federalist Society and the American Bar Association is “untenable” and “rest[s] on a double standard”:

For some time now, the ABA has taken “public and generally liberal positions on all sorts of divisive issues.” What’s more, the ABA does so by directly advocating for particular outcomes in particular cases. Not long ago, the ABA submitted an amicus brief in a pending Supreme Court case related to abortion. The ABA also filed amicus briefs in other contentious cases like Masterpiece Cakeshop and Trump v. Hawaii. And before that, the ABA weighed in on cases involving gender identity, affirmative action, same-sex marriage, and the Second Amendment. In fact, over the last decade, the ABA has filed more than 100 amicus briefs in many of our nation’s most charged cases. The Federalist Society has not filed even one. Likewise, the ABA routinely lobbies Congress, while the Federalist Society does nothing of the sort.

The judges explain that the Committee’s position would have dramatic implications for judicial membership in organizations, such as the American Law Institute, that “advocate detailed changes to all aspects of the law,” and in specialty-bar associations (e.g., the Hispanic National Bar Association) that “often take policy positions and advocate for legal change.” Further, it raises serious questions about judicial involvement in law schools (many of which “frequently litigate to advance specific legal positions” and “take policy positions on pending legislation, executive actions, and judicial nominations”) and in religious organizations (which often “take policy positions” on hotly contested issues).

The judges also highlight some amazing procedural anomalies that they have been made aware of (my emphasis):

Since its inception, the federal judiciary has insisted that each judge on a collegial body may state his or her individual views on the question presented. Yet reports suggest that no member of the Committee was permitted to dissent, despite some members’ strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft.

They call for the Committee, if it adheres to its draft opinion, to answer these specific questions:

Was the Committee unanimous in its support of this policy? If not, how many members dissented, and what were their reasons?

Were members of the Committee allowed to note and explain their dissents? If not, why not? Does any regulation of the Judicial Conference authorize the suppression of dissent?

Are any members of the Committee also members of the ABA? [EW: Yes. ] If so, did these members recuse themselves from working and voting on the exposure draft? [EW: Fat chance.]

The Wall Street Journal editorial page passes along word that the Committee has received more than 70 letters from judges in response to its draft opinion. I hope that the Committee promptly makes all of those letters public.

Law & the Courts

This Day in Liberal Judicial Activism—May 8

Judge Stephen Reinhardt

2018—In his majority opinion in Dai v. Sessions, Ninth Circuit judge Stephen Reinhardt holds that the court is required to treat an asylum applicant’s testimony as credible in the absence of an explicit finding to the contrary by the immigration courts. Never mind, as Judge Stephen Trott points out in dissent, that the immigration judge “expose[d] the glaring factual deficiencies in Dai’s presentation” and “explain[ed] in specific detail and at length why Dai had not persuasively carried his burden of proving his case.” Over Trott’s objection, Reinhardt also holds that a 2005 federal law, the REAL ID Act, that affords an asylum applicant only a rebuttable presumption of credibility on appeal applies only to the Board of Immigration Appeals, not to petitions for review in the federal courts.

More than eighteen months later, in October 2019, ten judges will dissent from the Ninth Circuit’s failure to rehear the case en banc. Judge Consuelo Callahan condemns the panel’s “artful evasion of the REAL ID Act [as] nothing short of an outright arrogation of the agency’s statutory duty as trier of fact.” Judge Daniel P. Collins similarly laments that the panel’s “Simon says” rule means that “even where (as here) the record overwhelmingly confirms that the agency actually disbelieved critical portions of the applicant’s testimony, [the Ninth Circuit] will nonetheless conclusively treat that testimony as credible if the agency did not make an explicit adverse credibility determination.” Collins also explains that the “panel majority’s sharp distinction between a ‘petition for review’ and an ‘appeal’ is refuted by the very statutory provision on which the majority relies.”

2019—“I dissent!,” exclaims Sixth Circuit judge Bernice Donald in Fowler v. Benson. The panel majority rejects a challenge to a Michigan law that requires that a person’s driver’s license be suspended when that person has failed to pay fines. But Donald opines that enforcement of that law against indigent drivers “without regard to their ability to pay and without affording them reasonable payment alternatives” violates their due process rights.


Positive Developments for the Little Sisters of the Poor

Sister Loraine McGuire with Little Sisters of the Poor after the Supreme Court heard Zubik v. Burwell, an appeal demanding exemption from providing insurance covering contraception, in Washington, D.C., March 23, 2016. (Joshua Roberts/Reuters)

Wednesday’s oral argument in the Supreme Court was good news for the Little Sisters of the Poor and others hoping for a final resolution to the decade-long battle over the HHS mandate. 

What exactly is the Sisters’ objection to the abortion pills mandate? As Little Sisters lawyer Paul Clement said: “Their objection essentially is to having their plans hijacked and being forced to provide those services through their own plan and plan infrastructure.” Calling this a “complicity-based objection,” Justice Elena Kagan added that she has understood “that to be your consistent position throughout the litigation.” She’s exactly right.

Also encouraging was Justice Stephen Breyer’s dismissal of the states’ claim that the Trump administration somehow violated the federal administrative procedures act. 

Chief Justice Roberts, for his part, expressed a desire to bring the controversy to an end, and a few justices seemed frustrated that the Court’s 2016 Zubik ruling had not resolved the issue. 

The Little Sisters appreciate their frustration.

The high Court told the government back then to explore an accommodation with the Sisters and other objecting groups. Obama’s HHS studied the issue for several months but, said in January 2017 that it could find no way around penalizing the Little Sisters. The Trump administration wasn’t so perplexed and exempted the Little Sisters and other religious objectors from the mandate. An exemption is the normal resolution to claims of religious burden under federal civil-rights laws like the Religious Freedom and Restoration Act (RFRA). It’s also a sensible solution to end many years of litigation.  

The states suing the administration take a stingier view. Justice Samuel Alito repeatedly asked why it was wrong to exempt religious groups like the Little Sisters. After all, the government has long exempted churches from the mandate — even churches with no religious objections to contraception. Pennsylvania’s lawyer argued that the Obama administration did not have the authority under the Affordable Care Act even to exempt churches

Some justices suggested that the Trump administration’s exemptions were too broad. Not so. The rules are clear and precise: To the extent you object to direct contraceptive coverage, you can use the Obama-era “accommodation” and to the extent you sincerely object to the “accommodation” — and only to that extent — exemptions are available to you. 

Unsurprisingly, Justice Ginsburg expressed concern that protections for religious objectors would “toss to the wind” coverage she thinks women are supposed to receive under the ACA. Wednesday’s hearing once again made clear, however, that the states have no evidence — none — that any American has been unable to get coverage because of the exemption. 

If working for an exempted employer was harmful to women, surely the states would have offered up some evidence of such harm by now. Why is there no smoking gun? Because, as President Obama’s solicitor general has said, an employee who wants contraceptive coverage but does not receive it from an exempt employer “will ordinarily obtain coverage through a family member’s employer, through an individual insurance policy purchased on an Exchange or directly from an insurer, or through Medicaid or another government program” (see page 65 of this brief). 

The fact is that contraception is more widely available today than it was when the Obama administration hailed these plentiful alternatives. Indeed, the Trump administration has since expanded Title X to make it easier for any women who don’t have coverage because of an employer’s religious objection to secure contraceptives. 

Justice Sonia Sotomayor downplayed the threat to the Little Sisters, asking if they weren’t exempt already because their benefits are provided by a “church plan.” But if forcing the Sisters to sign a “church plan” form was so meaningless, why have the Obama Administration and now Pennsylvania and New Jersey continued to wage a war against these nuns? The fact is that the Sisters’ signature authorizes paying secular companies who work with their church plan — like non-religious pharmacy benefits managers — to use the plan to distribute the contraceptive drugs over the Sisters’ objections. 

In the end, the only real question is not whether the justices will rule in favor of the Little Sisters. It’s how the justices will rule in their favor and recognize the religious exemption to which they are clearly entitled. Will they opt for a narrow ruling that guarantees that everyone will keep litigating this issue for another decade? Or, will the Supreme Court rule in a way that embraces the commonsense religious exemption and brings an end to this unnecessary fight?

Congress decided more than a quarter century ago that providing religious exemptions was precisely the kind of “sensible balancing” that is needed to protect diversity in our religiously pluralistic land. Here’s hoping the Supreme Court follows its bipartisan lead.

Law & the Courts

Yet Another Supreme Court Smackdown of Stephen Reinhardt


Notorious Ninth Circuit judge (or, if you prefer, liberal lion) Stephen Reinhardt—probably the most reversed judge ever—died more than two years ago, on March 29, 2018, but he is still generating posthumous smackdowns from the Supreme Court (as well as other controversies).

In a unanimous ruling today (in United States v. Sineneng-Smith), the Supreme Court, in an opinion by Justice Ginsburg, held that the Ninth Circuit panel on which Reinhardt was the presiding judge until his death—and at the time of the key order that the Court condemns—“departed so drastically from the principle of party representation as to constitute an abuse of discretion.” Specifically, the Court faulted the panel for its “takeover of the appeal,” for intervening to displace the arguments made by “competent counsel” on Sineneng-Smith’s behalf and to substitute instead a “radical transformation” of the case that “goes well beyond the pale.” Reinhardt and company (Judges Tashima and Berzon) effected that transformation when, after oral argument, they invited three left-wing organizations to file amicus briefs on three sweeping issues. (The panel issued its order on September 18, 2017; the opinion on the merits was issued after Reinhardt’s death, with Judge Andrew Hurwitz replacing Reinhardt on the panel.)

As Ginsburg sums things up (some citations omitted):

No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’”

Law & the Courts

Re: The Hit Job on the Federalist Society and Judge Walker


I have some comments to add to Carrie Severino’s excellent post about the concocted controversy over Judge (and D.C. Circuit nominee) Justin Walker’s adding his name to a letter from 200+ judges in opposition to the Code of Conduct Committee’s proposed opinion that federal judges may not be members of the Federalist Society but may be members of the American Bar Association. Specifically, I’d like to highlight the routine bias of the New York Times news staff, both in making this a story at all and in presenting it in such a lopsided manner.

The subheadline of the NYT article contends that Walker “joined a bevy of judges, many appointees of the president, in railing against” the proposed opinion. Its first sentence asserts that Walker “has stepped into a fierce ideological debate,” and its fourth sentence notes that the Code of Conduct Committee is “composed of judges appointed by both Democratic and Republican presidents.”

Only in the 17th paragraph does the reader learn that the Committee “solicited” feedback from judges, and only in the 24th (in the last fifth or so of the article) that the signatories to the letter included “a handful [of judges who] were named by” Democratic presidents.

I don’t think that any fairminded person would describe the tone of the judges’ letter as “railing.” Here is its opening paragraph:

We write to express our deep concern with the exposure draft of Advisory Opinion No. 117, recently issued by the Judicial Conference’s Code of Conduct Committee. We believe the exposure draft conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences. The circumstances surrounding the issuance of the exposure draft also raise serious questions about the Committee’s internal procedures and transparency. We strongly urge the Committee to withdraw the exposure draft.

That same tone pervades its eight pages of text.

As to “a fierce ideological debate”: Who, pray tell, is taking the other side in this debate? Has there been any serious defense of the Committee’s proposed opinion? Are there lots of letters from judges in support of it, and do they have anything meaningful to say? If so, perhaps Judge John McConnell, the Committee member and crony of Sheldon Whitehouse whom Carrie reasonably suspects of leaking the letter from 200+ judges in order to try to damage Walker’s nomination, should leak those letters, too.

By “stepped into,” the reporters also obscure what they only much later reveal: that Walker was simply responding to the Committee’s solicitation for comment.

The “handful”—eleven, by my count—of signatories to the letter who are Democratic appointees include federal appellate judges José Cabranes, Julie Carnes, Frank Hull, Cheryl Krause, Stanley Marcus, and Richard Tallman. If Walker’s critics want to pretend that there was anything improper about his signing the letter, will they criticize these judges as well?

(I’ve briefly addressed in point 3 here the silly NYT hit piece on Walker the very next day, hyping D.C. Circuit chief judge Sri Srinivasan’s purely procedural punt of Demand Justice’s smear of Judge Thomas Griffith.)

Law & the Courts

The Hit Job on the Federalist Society Looks Even Worse after the Walker Hearing

Sen. Sheldon Whitehouse during a Senate Judiciary Committee hearing, Washington, D.C., September 27, 2018 (Tom Williams/Pool via Reuters)

Back in January, I wrote about the campaign by the draft advisory opinion of the Committee on Codes of Conduct of the U.S. Judicial Conference to undo longstanding practice by barring judges from belonging to the Federalist Society. As I explained (here, here, here, here, here & here), it was a thinly veiled ideological hit job that applied one standard to the Federalist Society and another to the American Bar Association and any number of other organizations. If adopted, the opinion would wreak havoc on judges’ ability to connect to the legal profession and to faith and community organizations that (unlike the Society) take positions on issues.

In response to the proposed membership ban, a March 18 letter signed by 210 federal judges was sent to the Codes of Conduct Committee to “strongly urge” its members “to withdraw the exposure draft.” The letter explains that Canon 4 of the Judicial Code of Conduct “allows judges to serve as members — and even officers — of ‘nonprofit organization[s] devoted to the law, the legal system, or the administration of justice.’” After all, judges should “not become isolated from” the society around them.

The draft advisory opinion’s arguments for departing “from the text and its long-held understanding of the Code” all “rest on a flawed understanding of the Federalist Society and of the Code itself,” the judges’ letter asserts. Contrary to the notion that it advocates for particular policies, “the Federalist Society has never, in its several decades of existence, lobbied a policymaking body, filed an amicus brief, or otherwise advocated any policy change.” The judges contrasted that with the ABA, affinity bar associations, law schools, and even churches, all of which engage in such advocacy.

The judges added the following objections to the committee’s process:

[R]eports suggest that no member of the Committee was permitted to dissent, despite some members’ strong disagreement with the exposure draft. Other reports suggest that at least one member of the Committee was barred from voting on the draft. And the Committee’s reversal of its prior, settled interpretation—without any relevant change in the Code—raises further concerns.

That sounds a lot like railroading.

To make matters worse, the judges’ letter seems to have been used to try to run a judicial nomination off the rails. It was not public for a month and a half after it was submitted — that is, not until someone leaked it to the New York Times for a story that ran Sunday, just three days before today’s D.C. Circuit nomination hearing for Justin Walker. The nominee is a sitting judge who is among the letter’s signatories.

Lest there be any doubt that the leak was calculated to target Walker, the Times made it clear in its headline — “Trump Nominee Is Among Judges Opposed to Banning Membership in Conservative Group” — that the main story was not the letter itself, but the identity of a single signatory who is up for a promotion. Never mind the issue presented by the draft advisory opinion in the first place, or the fact that those who signed the judges’ letter include appointees of every president since Gerald Ford and span the ideological spectrum.

Not surprisingly, the one senator quoted in the article was the upper chamber’s chief conspiracy theorist on all things Federalist Society: Sheldon Whitehouse. As if on cue, it was Whitehouse who devoted his time during Walker’s hearing today to grilling him about the letter — not its content, but who wrote it.

Walker answered. Whitehouse moved on. He looked foolish, particularly as the senator who had secured his friend John McConnell’s appointment to the bench in 2011. That was after McConnell and his wife had donated almost $700,000 to Democratic candidates, including Whitehouse. Judge McConnell now sits on the Codes of Conduct Committee, a contributor to the draft advisory opinion that aims to silence the Federalist Society, Whitehouse’s favorite target.

Perhaps if the senator were less practiced in transactional politics, he wouldn’t be so paranoid.

Law & the Courts

Judge Srinivasan’s Bizarre Order on Demand Justice’s Smear of Judge Griffith


As someone who has had high regard for D.C. Circuit chief judge Sri Srinivasan (even while recognizing the ideological gulf between us), I am very surprised by his order last Friday regarding Demand Justice’s smear of his colleague Thomas Griffith. That order reflects a set of judgments by Srinivasan that range from implausible to indefensible, and the entirely predictable—and, it would seem to many, intended—effect of his order, especially given its timing, was to generate political ammunition for those opposing the confirmation of Griffith’s nominated successor, Judge Justin Walker.

Let’s consider each of the judgments that Srinivasan made:

1. Srinivasan requested that the Chief Justice transfer Demand Justice’s complaint to the judicial council of another circuit, pursuant to Rule 26 of the Rules for Judicial-Conduct and Judicial-Disability Proceedings. But these Rules contemplate that a circuit’s chief judge will ordinarily handle all complaints regarding his colleagues. A request for transfer is to be made only in “exceptional circumstances.” As Srinivasan notes in his order, the commentary to Rule 26 says that “transfers may be appropriate … where the issues are highly visible and a local disposition may weaken public confidence in the process.” The underlying report that the commentary cites elaborates this circumstance: a circuit

might wish to transfer to another circuit … a complaint, especially a high-visibility complaint, whose local disposition might create a threat to public confidence in the process—the view that judges will go easy on colleagues with whom they dine or socialize.

Except in the fever swamps of the Left, I don’t see how Demand Justice’s complaint was “highly visible.” I also don’t see why anyone would have objected to Srinivasan’s disposition of it or why that might have “create[d] a threat to public confidence in the process.” Again, it’s the ordinary rule that a chief judge handles complaints about his colleagues.

During his entire tenure on the D.C. Circuit, Srinivasan has been a colleague of Griffith’s. He surely knew that Griffith’s wife has long suffered from a serious illness and that Griffith has worked extensively from home in order to care for her. He surely knew that Griffith hadn’t hired clerks for next year. Like everyone else familiar with the D.C. Circuit, he surely had heard well back into 2019 that Griffith would likely step down. In short, he surely knew that Demand Justice’s charges were bogus. But by requesting a transfer of them instead of disposing of them himself, he acted to perpetuate them.

2. Srinivasan waited until last Friday to make his transfer request. But what he cites as the “circumstances [that] warrant a request for transfer”—that Demand Justice’s “request for an inquiry concerns the decision of a judge of this court to retire from service and the resulting creation of a vacancy on this court”—existed from the moment Srinivasan received Demand Justice’s letter six weeks earlier. Per my point 1, I don’t think that Srinivasan should have made that request at all. But if he was going to make it, why do so on the cusp of Walker’s hearing? Why not have done it right away? Or, alternatively, if you’ve already waited six weeks, why not wait a few more? Why not wait to see if Demand Justice ever properly submits its complaint under penalty of perjury?

3. Srinivasan made his order public. The usual rule (Rule 23(b)(1)) is that the “consideration of a complaint by a chief judge … is confidential”:

Information about this consideration must not be publicly disclosed by any judge or judicial employee, or by any person who records or transcribes testimony except as allowed by these Rules.

This usual rule is subject to an exception:

A chief judge … may disclose the existence of a proceeding under these Rules when necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct or disability.

Srinivasan invokes this exception, but offers no further explanation why he thinks it applies. For the reasons previously stated, I don’t see how public disclosure of his order is “necessary or appropriate to maintain public confidence in the judiciary’s ability to redress misconduct.” On the contrary, I think that Srinivasan’s public disclosure, especially given its timing, invited—and would reasonably be perceived as having been intended to invite—distorted hit pieces like this New York Times article on Monday that grandiosely begins:

Just days before a high-profile Senate confirmation hearing to fill a vacancy on the prestigious U.S. Court of Appeals for the District of Columbia Circuit, the court’s chief judge has opened the door to an inquiry into whether ethical improprieties occurred in the creation of the coveted opening.

4. In the face of Demand Justice’s continuing failure to comply with the requirement of setting forth its complaint under penalty of perjury, Srinivasan substituted his own “identification” of the complaint’s charges. That’s the technical term under Rule 5 by which charges can be considered in the absence of a proper complaint under Rule 6. As he explains, he had to identify the complaint in order to be able to have it transferred.

But Rule 5, in explaining this alternative of identification, states:

Identification. When a chief judge has information constituting reasonable grounds for inquiry into whether a covered judge has engaged in misconduct or has a disability, the chief judge may conduct an inquiry, as he or she deems appropriate, into the accuracy of the information even if no related complaint has been filed.

As I read this, a chief judge must have “information constituting reasonable grounds for inquiry” in order to make an identification of a complaint. But Srinivasan states only that he is identifying the complaint “without any inquiry by this court into the statements contained in the unverified correspondence or the questions posited by the organization in the correspondence about the possibility of judicial misconduct.” So he doesn’t indicate that he has made any effort to establish the predicate needed for identification.* Nor, given how frivolous Demand Justice’s charges are, could he do so.

In sum, these four judgments, each of which was essential to Srinivasan’s order on Friday, strike me as flatly wrong or highly dubious, and the combination of all four is particularly extraordinary.

* I’ve tweaked the original version of this sentence.

Law & the Courts

NPR Report Obliterates Demand Justice’s Smear of Judge Griffith


Ho, hum. A judge who is retiring in order to care for his very ill wife is instead baselessly accused of doing so in exchange for a bribe. That, alas, is par for the course for the left-wing group Demand Justice and its lead henchman Brian Fallon.

In mid-March, Demand Justice filed—or, more precisely as we shall see, purported to file—an ethics complaint against D.C. Circuit judge Thomas Griffith regarding Griffith’s decision to retire on September 1, “two months before the November election.” The lead charge in Demand Justice’s scurrilous letter is that Griffith might be stepping down in exchange for a bribe arranged by Senate majority leader Mitch McConnell—perhaps a “promise of future employment, such as a prestigious professorship, or future income or any bonuses that could have come with an agreement for future employment.” According to Demand Justice, Griffith’s decision “to retire outright,” rather than to continue in senior status, is “particularly suspicious,” as he is “making himself available for alternative full-time employment.” Demand Justice has tried to use its charge to obstruct the confirmation of Griffith’s nominated successor, Judge Justin Walker.

Yesterday NPR reported Griffith’s own account of his decision to retire: he made the decision a year ago, in June 2019; he informed his family and law clerks at the time; he faced no political pressure to step down; and his wife’s “debilitating chronic illness” was the “sole reason” for his retirement. None of this could have come as a surprise to anyone familiar with the D.C. Circuit. Among other things, Griffith hadn’t hired clerks for the coming year, and Griffith has worked extensively from home for years in order to care for his wife. That’s why it had long been widely expected that Griffith would step down.

There is nothing remotely suspicious about the timing of Griffith’s retirement. He will qualify for his pension (under the so-called Rule of 80) on June 29, 2020, 15 years from his appointment. By retiring on September 1, Griffith will complete the D.C. Circuit’s current term and thus do his best to ensure that all, or nearly all, of the cases on which he is sitting will have been resolved.

For all the attention that Demand Justice’s smear received in the fever swamps of the Left and (pardon the redundancy) in the liberal media, it turns out that Demand Justice didn’t even file a proper complaint. Governing rules require that a complaining party verify its charges under penalty of perjury. (See Rule 6(d) of Rules for Judicial-Conduct and Judicial-Disability Proceedings.) As D.C. Circuit chief judge Sri Srinivasan made clear in his bizarre order last Friday regarding the charge—an order about which I will have much more to say—his court promptly informed Demand Justice of its failure to comply with this requirement, yet in the six weeks between its filing and Srinivasan’s order, Demand Justice did not act to remedy this defect. Evidently Demand Justice realized that it’s one thing to make a vicious and baseless smear against a judge, and another thing to do so under oath.

Demand Justice and Brian Fallon should retract their charge and apologize for their smear. But in repeating the smear even in the aftermath of the NPR report, they have already made clear that they won’t.

Addendum: A reader sensibly suggests that I make explicit what I think is implicit: It’s especially unpleasant that Demand Justice’s smear has required Judge Griffith to discuss his wife’s private health situation in public.

Law & the Courts

This Day in Liberal Judicial Activism—May 6

U.S. Supreme Court building in Washington, D.C., November 2011 (Architect of the Capitol)

2016—Anticipating the imminent prospect of a liberal majority on the Supreme Court, Harvard law professor Mark Tushnet encourages the Left to abandon what he somehow imagines to have been an era of “defensive-crouch liberalism.” Among his modest and genial recommendations:

The Left “should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided” and should “aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling.”

Rather than try to “accommodate the losers” in the culture wars, the Left should take a “hard line” against its fellow citizens. “Trying to be nice to the losers didn’t work well after the Civil War.” And “taking a hard line seemed to work reasonably well in Germany and Japan after 1945.”

“Finally (trigger/crudeness alert), f*** Anthony Kennedy.” (Except Tushnet doesn’t use asterisks.)

Law & the Courts

Judge Justin Walker: What Are They Saying?

(Carlos Jasso/Reuters)

The Senate Judiciary Committee has announced that it will hold a hearing tomorrow morning on the nomination of Judge Justin Walker, President Trump’s nominee to the D.C. Circuit.

Support for Judge Walker’s nomination is very strong, and continuing to grow by the day.  Here’s a look at what people are saying:

U.S. Senate majority leader Mitch McConnell (R., Ky.)

“Judge Walker is a brilliant and fair jurist who reveres the Constitution and our nation’s founding principles. He understands the crucial but limited role that a judge must play in our constitutional order. I have known my fellow Kentuckian for a long time. The entire country will benefit from having this brilliant, principled and fair-minded legal expert on this consequential bench.”

Senator Rand Paul (R., Ky.)

“I was proud to recommend Justin to the administration for the Western District vacancy, and I congratulate him on his confirmation by the Senate today. I am confident his experience, knowledge, and dedication to the Constitution will serve Kentuckians well.”

Senator Mike Lee (R.,Utah)

“I have known Justin Walker for years, and have had many opportunities to review his legal and scholarly writings. He is an unusually gifted lawyer and judge, and I couldn’t be more pleased that President Trump has decided to nominate him to serve on the U.S. Court of Appeals for the D.C. Circuit. The American people will benefit tremendously from his service on that important tribunal.”

Allison Ball, State Treasurer of the Commonwealth of Kentucky

“Congratulations to my friend Justin Walker on the @POTUS nomination for the U.S. Court of Appeals for the D.C. Circuit. Justin is an intelligent and principled jurist and I am proud to support this Kentuckian!”

Leonard Leo

“Judge Walker has had an impressive legal career, during which he has aligned himself with originalism, textualism, and the important separation of powers principles that make our country great.  He is very close to Leader McConnell, and I expect he will be confirmed, continuing the unprecedented success that President Trump, Leader McConnell, and conservatives have had in restoring the rule of law to our federal courts.”
Carrie Severino, Judicial Crisis Network President

“Congratulations to Judge Justin Walker on his nomination to the U.S. Court of Appeals for the D.C. Circuit. Currently a district judge in Kentucky, Walker graduated top of his class at Duke University and Harvard Law. He is a former law clerk to both then-Judge Kavanaugh and Justice Kennedy. Before his confirmation to the district court, Judge Walker was a law professor at the University of Louisville. His scholarship focused on separation of powers and the administrative state from an originalist perspective. Judge Walker was an unrelenting defender of Justice Kavanaugh during the left’s unprecedented smear campaign. I expect Walker to bring similar courage with him to the DC Circuit as he defends the rule of law. I look forward to his confirmation.”

Donald McGahn, former White House counsel 

“He has exceptional academic credentials, clerked at the U.S. Supreme Court, and has focused his legal scholarship on precisely the sort of issues that come before the D.C. Circuit. Judge Walker fits the mold of the president’s federal appellate court nominees, I applaud his selection, and wish him a speedy confirmation.”

Mike Davis, Article III Project president

“Judge Walker will bring to the Second Highest Court in the Land his everyday-American upbringing, Midwestern sensibilities, impeccable credentials, conservative judicial philosophy, and brilliant legal mind,” Mr. Davis said. “He understands that his modest, but critical, role as a judge is to interpret the law as written — not how he wishes it were written if he were a senator.”


Law & the Courts

Abortion on Her Mind?


Some humor was found in the fact that Justice Sotomayor, for the second day in a row, forget to unmute her phone when it was her turn to ask questions today in US AID v. Alliance for Open Society International. But that gaffe was trivial compared to the confusions embedded in her questions.

Her first question (emphasis added):

Mr. Michel, the long and the short of this is that a domestic agency that does not want to adopt a policy of being opposed to abortion but who is willing to not support it in a program, they can’t receive funds unless they affiliate with someone who will make the statement for them, correct? [Transcript, pp. 21-22.]

Uh, no. For starters, the case has nothing to do with abortion. It concerns, rather, prostitution and sex trafficking—a requirement that a recipient of federal funds to fight HIV/AIDS overseas have a policy explicitly opposing prostitution and sex trafficking.

Second, the case doesn’t involve “domestic” agencies. The challenged restriction, in the aftermath of the Court’s 2013 decision involving the same parties, doesn’t apply to domestic agencies. It applies only to foreign entities. Mr. Michel made that clear in his response, but Sotomayor repeated the confusion in her very next question (transcript, p. 22):

JUSTICE SOTOMAYOR: But the domestic corporation who doesn’t want to speak the government’s message but does want to do the program can’t, unless it finds a affiliate who will speak the government’s message?

MICHEL: Well, with respect, Justice Sotomayor, that — I think that was the issue in the case last time. But –


MICHEL: — that’s no longer true. Yeah.

I love that “Exactly”—yeah, she understood that all along, despite her two questions asserting the opposite.

And then came this further confusion (transcript, pp. 22-23):

JUSTICE SOTOMAYOR: Exactly. And the last time when you sought for cert before us, you said it was a facial — it was tantamount or amounting to a facial challenge. If we read our prior decision as basically facially addressing the restriction, do you win?

MICHEL: I think if you read it as truly facially invalidating the statute, then, no, we couldn’t win.

Law & the Courts

Lawsuit Against Wisconsin Pandemic Orders


Yesterday two Wisconsin residents, represented by Cooper & Kirk, filed a lawsuit challenging various Wisconsin orders addressing the pandemic. Notably, they filed their lawsuit—or, more precisely, their emergency petition—as an original action in the Wisconsin supreme court.

Petitioners contend that aspects of the state orders violate their rights to engage in religious worship and in political protest. An excerpt (emphases in original):

Petitioners do not question the seriousness of the present health crisis, or the weight of the State’s interest in dealing with it. But the inexplicable lines drawn and distinctions made in the Order that Respondents have promulgated in response to the epidemic refute any contention that these constitutional infringements are the least restrictive means, or even sensible means, of combatting the virus. While EO 28 permits 60 individuals—ten adult staff and 50 children (who obviously can not be required or expected to be properly masked and distanced)—to gather together in a day care center, it does not allow even ten religious believers (who can be required and expected to observe recognized protective measures) to gather together for worship. While Respondents allow hundreds of customers into Costco at any given time, no group of any size is allowed to assemble in the park, or any other public or private place, to engage in political protest or expression.

Law & the Courts

This Day in Liberal Judicial Activism—May 5


1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman.

2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture.

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified”.

Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)

Law & the Courts

Forceful Dissent from Ninth Circuit Ruling on Trump Order Barring Immigrants Without Adequate Health Insurance


In a ruling issued minutes ago (in John Doe #1 v. Trump), a divided panel of the Ninth Circuit has denied the Trump administration’s motion for a stay pending appeal of a district-court order that bars the Trump administration from enforcing Presidential Proclamation No. 9945, Suspension of Entry of Immigrants Who Will Financially Burden the United States Health Care System. The panel divided on ideological lines: Chief Judge Sidney Thomas, joined by Judge Marsha Berzon, wrote the majority opinion, and Judge Daniel Bress wrote the dissent.

Here are the opening paragraphs of Judge Bress’s 50+-page dissent (some citations omitted or simplified):

Today’s decision is yet the latest example of our court allowing a universal injunction of a clearly constitutional Executive Branch immigration policy. This time, the President in Proclamation No. 9945 imposed certain restrictions on the entry of immigrants who, in the President’s judgment, will unduly burden the American healthcare system. In what unfortunately has become standard operating procedure, the district court enjoined the Proclamation on a nationwide basis before it could take effect. While declining to endorse the district court’s central rationale, my fine colleagues in the majority find a way to justify the district court’s decision, while refusing to stay or limit its blanket injunction.

The majority gravely errs in concluding that the Proclamation is likely unconstitutional. There is no legal basis to impose novel and unjustified restrictions on what the Supreme Court has described as “the President[’s] sweeping authority to decide whether to suspend entry, whose entry to suspend, and for how long.” Trump v. Hawaii (2018). The President issued Proclamation No. 9945 based on his constitutional powers and his statutory authority in 8 U.S.C. § 1182(f). The Supreme Court has held that this provision “[b]y its terms” “exudes deference to the President in every clause.” Yet the majority opinion gives deference to everyone but the President—the district court, whose analysis was deeply flawed; States who joined an amicus brief and who are not even parties to this case; and plaintiffs’ expert, Dr. Leighton Ku, who candidly admits he performed “not an ideal analysis.”

It is a bad day for the separation of powers when the Executive—operating at the apex of his constitutional mandate—loses out to players who lack the authority that the Constitution and Congress entrusted to him. And it is an equally bad day for the rule of law when the majority opinion endorses arguments that the Supreme Court expressly rejected two years ago in Trump v. Hawaii. As with many immigration policies, reasonable minds will differ as to whether Proclamation No. 9945 is good or bad policy. But the great policy debates of our time should be resolved in the halls of Congress, the public square, and at the ballot box, not by a district court in Oregon or a three-judge panel in San Francisco. What I know is that Proclamation No. 9945 is valid as a matter of law. And that is what matters here.

The majority’s unjustified intrusion on presidential prerogative is, however, only made more problematic by the scope of the injunction that the court allows. The district court, as noted, issued a nationwide injunction, and one that in fact operates worldwide. Injunctions such as this raise many issues, as the Supreme Court has signaled in repeatedly staying lower courts’ (and our court’s) universal injunctions. [Citing five recent rulings.]

Not heeding these signals, the majority allows another universal injunction to remain in place, but with new and unfortunate twists. When the district court enjoined Proclamation No. 9945, it did so without certifying any class. Just recently, however, and many months into this appeal of its injunction, the district court certified two classes, one of persons in the United States and one of “foreign nationals” around the world. The sequence of events here is cause for concern, and the majority’s reliance on the belated class certification decision confirms that the district court’s universal injunction was not justified when issued. But what the class certification ruling also shows is that the excesses of universal injunctions stem in large part from a failure to abide by the rigorous requirements for class certification—requirements that the district court unfortunately did not observe.

If there is any solace here, it is that the majority has only denied a stay of the injunction. I hope the merits panel that receives this case will see things differently. But that decision will be issued many months from now, if not longer. There is no reason for the Executive to have his chosen and plainly constitutional Proclamation put on ice in the interim—a delay that inflicts real damage on our constitutional system. For the reasons expressed here and in my prior dissent in this matter, I would have stayed the district court’s injunction. I therefore respectfully dissent.

Law & the Courts

Sixth Circuit Injunction Against Kentucky Ban on Drive-In Religious Services


“While the law may take periodic naps during a pandemic, we will not let it sleep through one.” So declared a Sixth Circuit panel in a ruling on Saturday (in Maryville Baptist Church v Beshear) that prevents Kentucky governor Andy Beshear from enforcing pending appeal two COVID-19 social-distancing orders against a church’s drive-in religious services.

In a per curiam opinion, the panel (Sutton, McKeague, and Nalbandian) determined that the church was likely to succeed on its claims that the orders, especially as they applied to drive-in services, violated its rights under state and federal law.

As for Kentucky’s Religious Freedom Restoration Act, “[t]he way the orders treat comparable religious and non-religious activities suggests that they do not amount to the least restrictive way of regulating the churches.” “How,” the panel asks, “are in-person meetings with social distancing” (which the orders allow in “typical office environments”) “any different from drive-in church services with social distancing?” And how can the orders “permit big-lot parking for secular purposes [but] not for religious purposes”?

The panel also found that the governor’s orders likely violate the church’s Free Exercise protections of the federal Constitution. The orders have “several potential hallmarks of discrimination” that deprive them of the deference that generally applicable laws receive. For example, “many of the serial exceptions for secular activities pose comparable public health risks to worship services,” yet the governor “has offered no good reason so far for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.”

Although the panel concluded that the governor’s orders were also likely illegal in their application to in-person services, the panel found that the balance of harms was “more difficult” to determine and, on that basis, did not at this stage enjoin the governor from applying his orders to in-person services. At the same time, the panel warned that the “breadth of the ban on religious services, together with a haven for numerous secular exceptions, should give pause to anyone who prizes religious freedom.”

Law & the Courts

This Day in Liberal Judicial Activism—May 4

Laurence Tribe outside the Supreme Court in 2000. (Brendan McDermid/Reuters)

2009—On the heels of Justice David Souter’s announcement of his decision to retire, Harvard law professor Laurence H. Tribe writes a letter to his protégé, Barack Obama, offering his nuggets of wisdom on how President Obama should seize the “opportunity to lay the groundwork for a series of appointments that will gradually move the Court in a pragmatically progressive direction.” Among the nuggets: Don’t nominate Sonia Sotomayor:

“Bluntly put, she’s not nearly as smart as she seems to think she is, and her reputation for being something of a bully could well make her liberal impulses backfire and simply add to the fire power of the Roberts/Alito/Scalia/Thomas wing of the Court on issues like those involved in the voting rights case argued last week and the Title VII case of the New Haven firefighters argued earlier, issues on which Kennedy will probably vote with Roberts despite Souter’s influence but on which I don’t regard Kennedy as a lost cause for the decade or so that he is likely to remain on the Court.”

Instead, Tribe recommends that Obama nominate Elena Kagan. As Tribe explains it, the techniques that Kagan deployed as Harvard law school dean “for gently but firmly persuading a bunch of prima donnas to see things her way in case after case” would give her much more of “a purchase on Tony Kennedy’s mind” than Justice Breyer or Justice Ginsburg have.

Law & the Courts

This Day in Liberal Judicial Activism—May 3

H. Lee Sarokin

1984—Federal district judge H. Lee Sarokin modifies a consent decree to require that layoffs of New Jersey firefighters be on a proportional quota basis rather than (as state law provided) according to seniority. The result is that white firefighters with more seniority are to be laid off in favor of minority firefighters with less seniority.

In an especially bizarre twist, Sarokin rules that his own order constitutes a compensable taking of the property (seniority rights) of white firefighters, and he orders the federal government, which opposed his order, to provide compensation for his taking! Sarokin expresses sympathy for the white firefighters, stating that they are “not themselves the perpetrators of the wrongs inflicted upon minorities over the years [but] are being singled out to suffer the consequences.”

In June 1984, after the Supreme Court’s ruling in Firefighters v. Stotts forces Sarokin to change his order and to have seniority govern layoffs, Sarokin will change his tone and attack the white firefighters: “If they have not directly caused the discrimination to occur, many have certainly condoned it by their acquiescence, their indifference, their attitudes and prejudices, and even their humor.”

2019—In a 300-page opinion (in Ohio A. Philip Randolph Institute v. Householder), a three-judge district court rules that Ohio’s congressional districting map is an unconstitutional “partisan gerrymander.” In a particularly bizarre move, the court gives the Ohio legislature barely a month to enact a new map. The court’s rushed deadline is some two weeks before the end of the Supreme Court’s term, in which important redistricting cases are pending.

Three weeks later, the Supreme Court, without recorded dissent, will grant Ohio’s application for a stay of the district-court ruling. At the end of June, the Court will nullify the ruling, as it holds in Rucho v. Common Cause that claims of partisan gerrymandering are nonjusticiable.

Law & the Courts

The Second Amendment Day of Reckoning Is About to Dawn

(Jonathan Ernst/Reuters)

The ballyhoo over the U.S. Supreme Court’s tiptoe around a Second Amendment decision this week might be a gun control celebration a little too soon.

The Supreme Court ruled this week in New York State Rifle & Pistol Association v. City of New York that changes made after the Court granted certiorari (agreed to hear the appeal) to the City of New York’s onerous ordinance and regulations rendered the case “moot.” That’s the ordinance that burdened the ability of the city’s gun owners to travel with lawfully owned, unloaded, and locked firearms to destinations outside the city.

While the result may be disappointing to Second Amendment advocates, the silver lining is that a Second Amendment day of reckoning may be dawning.

Justice Samuel Alito wrote a well-reasoned dissent, which Justices Neil Gorsuch and Clarence Thomas (mostly) joined, for why the case is not moot. He wrote, “By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”

Justice Alito observed that one would have expected the City of New York to continue to forcefully defend its law, as it had in lower courts. “But once we granted certiorari, both the City and the State of New York sprang into action to prevent us from deciding this case,” he continued. “Although the City had previously insisted that its ordinance served important public safety purposes, our grant of review apparently led to an epiphany of sorts, and the City quickly changed its ordinance. And for good measure the State enacted a law making the old New York City ordinance illegal.”

Justice Alito noted that the Court has “been particularly wary of attempts by parties to manufacture mootness in order to evade review.” Regrettably, that is exactly what the City of New York successfully did in this case.

Had the Court reached the merits of the plaintiffs’ Second Amendment claims, the dissenting justices, at least, would have held the City’s ordinance violated the Second Amendment, calling it “not a close question.”

The true importance of the case, however, is not the fact that the City of New York dodged a proverbial bullet, but rather what Justice Alito and Justice Kavanaugh had to say about how the lower courts have applied the Court’s holding in Heller and McDonald.

Heller and McDonald

The Court has shied away from taking challenges to states’ attempts to limit the right to keep and bear arms. Proponents of individual rights hoped the City of New York case would break the logjam, as the Supreme Court hasn’t decided a case on these issues since 2008 with the Heller decision and 2010 with the McDonald decision.

“Since then, the lower courts have decided numerous cases involving Second Amendment challenges to a variety of federal, state, and local laws. Most have failed,” Justice Alito wrote. “We have been asked to review many of these decisions, but until this case, we denied all such requests.”

In discussing how the plaintiffs’ Second Amendment claims were handled, Justice Alito wrote, “Although the courts below claimed to apply heightened scrutiny, there was nothing heightened about what they did.” He concluded his dissenting opinion by noting, “We are told that the mode of review in this case is representative of the way Heller has been treated in the lower courts. If that is true, there is cause for concern.”

This frustration among the justices that the Court is treating the Second Amendment as a second-class right isn’t new. Justices Thomas and Gorsuch vented their frustration with the Supreme Court’s refusal to grant review in the Peruta v. California case in 2017. In his dissent, Justice Thomas wrote the case “reflects a distressing trend: their treatment of the Second Amendment as a disfavored right.” He added, “For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense.”

A year later, in dissenting from a denial to grant certiorari in Silvester v Becerra he said, “The right to keep and bear arms is apparently this Court’s constitutional orphan. And the lower courts seem to have gotten the message . . . this Court declared [in McDonald] that the Second Amendment is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees.’”

Time Has Come

Justice Kavanaugh, while departing from Justice Alito on the procedural issue of mootness claim in his concurring opinion, agreed with Justice Alito’s general analysis of the misapplication of Heller and McDonald by the lower courts. “The Court should address that issue soon, perhaps in one of the several Second Amendment cases with petitions for certiorari now pending before the Court,” Justice Kavanaugh wrote. These words may prove to be prophetic.

The same day the Supreme Court sidestepped the City of New York case, it scheduled for conference ten pending Second Amendment cases to decide whether to grant certiorari and hear those appeals. These cases arguably involve more important and substantial Second Amendment issues than the City of New York case. Several of these cases challenge restrictions on where an individual can carry a firearm outside their home. Three cases challenge more industry-specific issues. The National Shooting Sports Foundation, the firearm industry trade association, filed amicus briefs in support of the two plaintiffs. Those cases include:

Mance v. Barr — a case which a Washington, D.C.-based couple is challenging the federal interstate handgun transfer ban on Second Amendment grounds after they were prohibited from purchasing two firearms from a Texas federal firearms licensee without going through D.C.’s only licensed firearm retailer. NSSF’s brief argues the Second Amendment right to keep and bear arms, including handguns, does not stop at your state’s border. The federal ban on interstate handgun sales is not narrowly tailored to the professed government compelling interest. The ban unreasonably infringes upon the Second Amendment rights of individuals who are otherwise qualified to purchase handguns and violates their Fourteenth Amendment right to equal protection under the law.

Worman v. Healey — a Second Amendment challenge to Massachusetts’ ban on commonly owned modern sporting rifles. NSSF’s amicus brief argues that lower courts disagree on what standard of review applies and the standards articulated by five circuit courts of appeal are unconstitutional. The First, Second, Fourth, Ninth, and D.C. Circuits have all ruled that “intermediate scrutiny” should apply to laws of this sort. The Seventh Circuit chose to apply the standard of which gun control laws were in place when the Bill of Rights was ratified. NSSF argues that the “intermediate scrutiny” standard has no grounding in the Second Amendment and gives judges unlimited discretion to approve and disapprove firearms regulations. NSSF further argues that lower courts are relegating the Second Amendment to a second tier right, despite its clear and unambiguous proscription of government overreach.

Threats and Tantrums

The City of New York decision offers more than just a glimpse into the Court’s appetite to finally taking more Second Amendment cases. It also foreshadows the lengths to which those who are crowing over the dismissal might react when the Supreme Court takes up one or more of these pending reviews.

A prominent brief supporting the City filed by Senators Sheldon Whitehouse (D., R.I.), Mazie Hirono (D., Hawaii), Richard Blumenthal (D., Conn.), Richard Durbin (D., Ill.), and Kirsten Gillibrand (D., N.Y.)  threatened the Court with political consequences. “The Supreme Court is not well. And the people know it,” the senators’ brief reads. “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’ Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

Justice Alito made it clear the Supreme Court’s integrity, and that of the senators who confirm justices, was on the line.

“United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed,” Justice Alito wrote. “If the Court did not do so, they intimated, the public would realize that the Court is ‘motivated mainly by politics, rather than by adherence to the law,’ and the Court would face the possibility of legislative reprisal.”

The attacks on the court then presage what can be expected. Senate majority leader Mitch McConnell (R., Ky.) anticipated as much when he reassured the Supreme Court that judicial integrity would be respected under his watch in a letter which garnered the signatures of 52 senators.

The same senators who threatened the Supreme Court smeared Justice Kavanaugh with unfounded, unsubstantiated, and unproven claims of violent criminal misconduct. One can imagine what will happen if the Court were to grant certiorari in these more far-reaching Second Amendment cases. In addition to being unprofessional, bordering on sanctionable for the senators admitted to the Supreme Court, it probably was not the wisest move. It clearly didn’t sit well with Justice Alito.

The ballyhoos heard now could well become gnashing of teeth and wails of frustration. Hopefully, a day of reckoning is coming for the Second Amendment.

Editor’s Note: This piece originally identified the Fifth Amendment as guaranteeing equal protection under the law from state infringement. In fact that is a Fourteenth Amendment guarantee. It has been corrected.

Law & the Courts

The Second Amendment Will Soon Be Back at the Supreme Court

AR-15 rifles displayed for sale at the Guntoberfest gun show in Oaks, Pa., in 2017 (Joshua Roberts/Reuters)

The Supreme Court should and will take a Second Amendment case very soon, and Senator Sheldon Whitehouse (D., R.I.) won’t be happy. When Whitehouse basically threatened the Supreme Court over a recent Second Amendment case, perhaps he didn’t realize that he could get what he wanted and still lose the fight. This week, although the Court dismissed as moot the case that had Whitehouse in a tizzy, the Court is reviewing a slew of Second Amendment petitions that he’ll like even less.

The mooted case, New York State Rifle and Pistol Association v. NYC, was a challenge to NYC’s bizarre travel restrictions for permitted gun owners and the first Second Amendment case the Court had taken in a decade. After the justices agreed to hear the case, New York City and New York state, fearing a decision that would strengthen the Second Amendment, moved quickly to change the law to keep the Court from issuing a decision. This is a form of strategic mooting, because courts generally don’t hear controversies that are no longer “live” because there is no relief a court can give if the law has already been changed. And while strategic mooting is fairly common, it’s an unsavory form of gamesmanship with the Court’s docket.

New York City asked that the case be removed from the docket, and Whitehouse, joined by four other senators, wrote an infamous amicus brief urging the Court to dismiss the case. Whitehouse didn’t just confine his arguments to the legal question of mootness. He came within a hair’s breadth of outright accusing the Court’s Republican-appointed justices as being shills for the NRA and the Federalist Society. His shocking brief closed with what many interpreted as a threat to restructure the Court if the justices didn’t go along with his request. “The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’”

On Monday, the justices, by a 6-3 vote, dismissed the case as moot. The same day, they added ten held-over Second Amendment petitions to the Court’s calendar. These are petitions that were being held pending the Court’s decision in the New York case. The justices will discuss these petitions Friday, with decisions likely to be released on Monday.

Five of the petitions challenge various states’ “good reason” restrictions on the right to carry a weapon outside the home. Eight states issue carry permits provided that the applicant meets certain objective criteria (e.g. a criminal background check) as well as the vague subjective criterion that the applicant demonstrates a justified need to carry a firearm, often determined by a local sheriff. This has long been thought unconstitutional, and with good reason: No other constitutional right can be conditioned on the subjective determination of a local official. I wouldn’t want a Sheriff Sheldon Whitehouse determining whether I can carry a gun.

Another petition challenges California’s microstamping requirement, which requires new pistols to stamp the casing with an identifiable mark for better tracking. Problem is, no gun manufacturer has figured out how to do this. It’s akin to a law saying people have a right to free speech only if they’ve turned lead into gold.

There are also a couple of petitions challenging so-called “assault weapons” bans and high-capacity magazine restrictions, and a petition challenging the federal ban on interstate firearm sales, which for some reason irrationally applies to handguns but not rifles.

The Court needs to take a Second Amendment case soon, whether it’s one of these cases or another. In the ten years since the Court took a Second Amendment case, the lower courts have floundered to figure out what the decisions in Heller and McDonald mean. The Ninth Circuit has made a habit out of rubber-stamping almost any restriction on firearms. For example, the court upheld California’s ten-day waiting period law as it applied to those who passed the background check in fewer than ten days and were already owners of a firearm or even had a concealed carry permit.

The Seventh Circuit, on the other hand, struck down Chicago’s ban on shooting ranges in the city — correctly reasoning that if the purpose of the Second Amendment is to allow guns for self-defense, then that entails the ability to practice with the gun. In response to the Seventh Circuit’s decision, the city created an elaborate set of regulations for shooting ranges that left only 2.2 percent of the city even theoretically available for shooting ranges. The Seventh Circuit struck those down too.

There’s a wide variance between the circuits where seemingly any gun law is okay and those, like the Seventh, that take the Second Amendment seriously. One of the Court’s most important jobs is to rectify that variance. They’ll soon take a case to do that, and Senator Whitehouse will again be unhappy.

Law & the Courts

This Day in Liberal Judicial Activism—May 1

Judge Stephen Reinhardt

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause.

One year later, the Supreme Court will reverse the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor, and Souter dissent.

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination will finally be confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005.

Law & the Courts

Dissenters Challenge Ninth Circuit’s Denial of En Banc Review in Takings Case


A year ago, a divided panel of the Ninth Circuit ruled (in Cedar Point Nursery v. Shiroma) that a California regulation that requires an agricultural employer to give union organizers access to agricultural employees at employer worksites does not constitute an unconstitutional taking. In an order today, the Ninth Circuit denied the employer’s petition for rehearing en banc.

Eight judges publicly dissented from the denial. Here is the powerful opening paragraph of Judge Sandra S. Ikuta’s dissent (some citations omitted):

Once again, the Ninth Circuit endorses the taking of property without just compensation. See Horne v. U.S. Dep’t of Agric., 750 F.3d 1128 (9th Cir. 2014), rev’d sub nom. Horne v. Dep’t of Agric., 135 S. Ct. 2419 (2015). California property law and Supreme Court precedent make clear that an easement is private property protected by the Takings Clause. In opposition to this precedent, the majority concludes there is no taking because the state’s appropriation of an easement is not a “permanent physical occupation.” This decision not only contradicts Supreme Court precedent but also causes a circuit split. We should have taken this case en banc so that the Supreme Court will not have to correct us again.

Law & the Courts

This Day in Liberal Judicial Activism—April 29

Laurence Tribe outside the Supreme Court in 2000. (Brendan McDermid/Reuters)

1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

Law & the Courts

Faith, Family, and Judge Justin Walker

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, D.C., June 14, 2019 (Jonathan Ernst/Reuters)

Earlier this month, I was overjoyed to learn that President Trump had selected my friend and former colleague, judge Justin Walker, to fill a vacancy on the U.S. Court of Appeals for the D.C. Circuit. In the words of Senate majority leader Mitch McConnell, by selecting a jurist born, raised, and holding court in Louisville, Kentucky, the President’s “search took him outside the Beltway and into the Bluegrass.” All Americans should hail this choice, but particularly conservatives who share Judge Walker’s passionate commitment to his family, faith, and community.

To fully appreciate Judge Walker’s nomination, it helps to understand one of his favorite TV shows — the short-lived but critically-acclaimed NBC comedy drama Ed (2000-04). In the show’s pilot episode, the title character starts as a successful attorney at a large New York law firm. But after a series of events forces some personal introspection, he returns to his hometown of Stuckeyville, Ohio. There, he buys and renovates a bowling alley, reconnects with his high-school crush, and starts a local law practice to help his neighbors. He finds enduring meaning in the bonds of family and friends and the opportunities for service provided by his hometown.

Like Ed, Judge Walker started his legal practice at a major coastal law firm — Gibson Dunn LLP in Washington, D.C. (I worked there at the time and was assigned to be his associate “buddy.” We bonded over bowling.) Justin quickly excelled at drafting briefs and delving into records in complex commercial cases. It would have been easy for Justin — whose impeccable credentials include being a summa cum laude graduate from Duke; a magna cum laude graduate from Harvard Law; a notes editor on the Harvard Law Review; and a clerk for then-judge Brett Kavanaugh and Justice Anthony Kennedy — to continue to thrive as a D.C. litigator.

But Justin ultimately felt called to return to his hometown of Louisville, where he could live closer to his mom and support his wife’s career building Global Game Changers, a non-profit for underserved school children. Once back home, Justin went on to inspire year after year of students as a professor at the University of Louisville Brandeis School of Law. He also served as pro bono legal counsel at the Global Game Changers Student Empowerment Program and volunteered his time teaching writing to high school students.

Conservatives who rightly praise the virtues of family, community, education, and service should find much to admire in Judge Walker’s career. And to these virtues I would also add faith, as Justin’s desire to serve others stems directly from his deeply rooted Catholic beliefs. While he was still in D.C., I met him frequently at church when we were both parishioners at St. Thomas Apostle in Woodley Park, where Justin was also an acolyte. As a former speechwriter, Justin relished a clear, concise, and theologically sound homily. We would compare notes after Mass and share stories of our favorite homilies from home and our involvement with campus ministry in law school.

Through these conversations, I came to appreciate Justin’s commitment to how the Constitution, as originally understood, provides strong protection to religious believers. When I joined a team of Gibson Dunn attorneys in defending the constitutionality of prayer at town meetings before the U.S. Supreme Court, Justin was my biggest supporter. In that case, two citizens of our client, the town of Greece, New York, claimed that the town violated the Establishment Clause by starting its monthly meetings with a prayer. When the Supreme Court took our case, Justin told me, “Congrats! Just don’t lose!” Fortunately, we didn’t: The Court relied on centuries of history and tradition in affirming the right of this predominantly Christian community to pray in its own idiom, invoking Jesus’s name.

Not long afterward, Justin enthused about a chapter in senator Mike Lee’s book, Our Lost Constitution, on how the Supreme Court had strayed from the original meaning of the Establishment Clause. The book explains that, for a century and a half, the Clause “was not interpreted as requiring the government to be completely neutral between religion and atheism.” But since 1947, after Everson v. Board of Education, the Supreme Court “led this nation on a dramatic and distressing detour from this tradition.” The chapter shows how Justice Hugo Black’s anti-Catholic animus contributed to this more hostile and regrettable turn against religion and the Court’s adoption of Thomas Jefferson’s metaphor of a “wall of separation between church and State.”

It therefore did not surprise me when, on Holy Saturday, Judge Walker penned a stirring defense of religious liberty in an order that forbade the Mayor of Louisville from interfering with a local Christian organization that wished to hold drive-in Easter services that complied with CDC guidelines for social distancing during COVID-19. And I am confident that, if confirmed to the D.C. Circuit, Judge Walker would continue to honor his commitment to religious liberty through careful attention to the text and original meaning of the U.S. Constitution. As judge J. Harvie Wilkinson III suggested in his article, “Is There a Distinctive Conservative Jurisprudence?,” the “textual and structural dictates of the Constitution” require “recognizing and reaffirming the role of important intermediate institutions in American life” — our states, churches, civic organizations, and families. Judge Walker knows firsthand how important those mediating institutions are to our shared American experience. He has written eloquently in their defense and prioritized them throughout his own life of service to family and friends, from the Beltway to the Bluegrass.

Law & the Courts

Alito Dissent: Second Amendment Challenge to NYC Gun Laws Not Moot


In a one-paragraph per curiam opinion today in New York State Rifle & Pistol Ass’n v. City of New York, the Supreme Court stated that the petitioners’ claim for declaratory and injunctive relief with respect to New York City’s “old rule” regarding the transport of firearms is moot and that their challenge to the City’s new rule, as well as any claim for damages under the old rule, should be addressed in the first instance by the lower courts on remand.

In a lengthy dissent, Justice Alito, joined by Justice Gorsuch and for the most part by Justice Thomas, objected to the Court’s disposition and would have ruled in favor of petitioners on their Second Amendment challenge. Here are some interesting excerpts (citations omitted) on the mootness question:

[T]his case is not moot because the amended City ordinance and new State law do not give petitioners all the prospective relief they seek. Petitioners asserted in their complaint that the Second Amendment guarantees them, as holders of premises licenses, “unrestricted access” to ranges, competitions, and second homes outside of New York City, and the new laws do not give them that.

The new City ordinance has limitations that petitioners claim are unconstitutional, namely, that a trip outside the City must be “direc[t]” and travel within the City must be “continuous and uninterrupted.” Exactly what these restrictions mean is not clear from the face of the rule, and the City has done little to clarify their reach. At argument, counsel told us that the new rule allows “bathroom breaks,” “coffee stops,” and any other “reasonably necessary stops in the course of travel.” But the meaning of a “reasonably necessary” stop is hardly clear. What about a stop to buy groceries just before coming home? Or a stop to pick up a friend who also wants to practice at a range outside the City? Or a quick visit to a sick relative or friend who lives near a range? The City does not know the answer to such questions.…

Consider where acceptance of the argument adopted by the per curiam leads. Suppose that a city council, seeking to suppress a local paper’s opposition to some of its programs, adopts an ordinance prohibiting the publication of any editorial without the approval of a city official. Suppose that a newspaper challenges the constitutionality of this rule, arguing that the First Amendment confers the unrestricted right to editorialize without prior approval. If the council then repeals its ordinance and replaces it with a new one requiring approval only if the editorial concerns one particular city program, would that render the pending lawsuit moot and require the paper to commence a new one?

Or take this example. A State enacts a law providing that any woman wishing to obtain an abortion must submit certification from five doctors that the procedure is medically necessary. After a woman sues, claiming that any requirement of physician certification is unconstitutional, the State replaces its old law with a new one requiring certification by three physicians. Would the court be required to dismiss the woman’s suit? Suppose the court, following the precedent set by today’s decision, holds that the case is moot, and suppose that the woman brings a second case challenging the new law on the same ground. If the State repeals that law and replaces it with one requiring certification by two doctors, would the second suit be moot? And what if the State responds to a third suit by enacting replacement legislation demanding certification by one doctor?

Mootness doctrine does not require such results. A challenge to an allegedly unconstitutional law does not become moot with the enactment of new legislation that reduces but does not eliminate the injury originally alleged. And that is the situation here.

Law & the Courts

Title VII, Compositionality, and ‘Discriminate Against’


James C. Phillips, a scholar at Stanford law school’s Constitutional Law Center (and author of several National Review essays), has kindly forwarded to me an interesting new paper of his, “The Overlooked Textual Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality.” As he explains, the principle of compositionality “is, simply put, the notion that a phrase is often more (or less) than the sum of its parts.”

From his abstract:

This short essay focuses on a linguistic (and therefore textualist) principle overlooked in the trio of Title VII cases currently before the U.S. Supreme Court: compositionality. By taking that principle seriously–a principle the Supreme Court has recognized in some form for a century–the essay uncovers corpus linguistic and dictionary evidence contemporaneous to the enactment of Title VII that sheds light on the relevant statutory language. That light provides an answer to the interpretive question the Court is facing.

Title VII makes it unlawful “to discriminate against any individual . . . because of such individual’s . . . sex.” Many observers seem to drop the word “against” and focus just on “discriminate.” Or if they do take “against” into account, they nonetheless fail to read the whole operative statutory phrase—including “discriminate,” “against,” and the relevant trait (in this case, sex)—as an indivisible whole. The argument for the plaintiffs, in particular, would require us to give “discriminate” and “against” the meaning each of them would have if it existed apart from the rest of the phrase. This “dissection” approach is most obvious in the most precise and careful formulations of the plaintiffs’ central textualist argument, as this Essay will show.

But that approach, as I will also show, violates the linguistic principle of compositionality. So it produces a demonstrably inferior reading of the text on purely linguistic grounds, prior to any appeal to subjective intent, purpose, policy concerns, or other modes of legal argument.

That is because, as it turns out, the phrase “discriminate against . . . because of [some trait]” was a linguistic unit (a composite) by the time of Title VII’s enactment, which makes the principle of compositionality relevant. And read as a composite, the phrase had more semantic content than one could glean from separately analyzing and then amalgamating its three parts (“discriminate,” “against,” and “sex”). While a “dissection” reading might suggest that Title VII covers any adverse treatment that even adverts to sex, as plaintiffs suppose, a linguistically superior reading (taking compositionality into account) proves that the operative text refers only to adverse treatment that rests on prejudice—i.e., unfair beliefs or attitudes—directed at some or all men, or at some or all women. And this defeats the plaintiffs’ textualist argument. Whatever the legal merits of their case overall, their textualist case fails because it violates a basic linguistic principle as applied to linguistic data from the era. But as it happens, the prejudice-based conception of discrimination that is required by the text properly read also fits well with all the Court’s precedents on sex discrimination.

By contrast, plaintiffs’ reading of Title VII’s text is irreconcilable with employers’ long-accepted practices of sex-specific dress codes, restrooms, and locker rooms and showers (e.g., in company gyms). Because that misreading would also apply to colleges and schools receiving federal funds under Title IX, it would also bar those institutions from continuing their long-accepted practices of sex-specific restrooms, showers, dormitories, and sports teams.

Law & the Courts

This Day in Liberal Judicial Activism—April 27

A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, D.C., June 14, 2019 (Jonathan Ernst/Reuters)

2015—Federal district judge Jon S. Tigar denies the state of California’s request for a stay, pending appeal, of his preliminary injunction ordering the state (supposedly pursuant to the Eighth Amendment) to provide prisoner Jeffrey Norsworthy “sex reassignment surgery as promptly as possible.”

Tigar agrees that the state’s appeal raises a serious legal question but he concludes that the state can’t show irreparable injury from denial of the stay. Never mind that, if the mutilation-as-surgery goes forward, the state will never be able to recover the costs of surgery that it incurs. Tigar’s denial of the stay is evidently designed to render the matter moot—what relief could the state obtain post-surgery?—and thus immunize his own ruling from appellate review.

A Ninth Circuit panel will promptly issue an order staying Tigar’s injunction pending appeal. But one day before oral argument on the Ninth Circuit appeal, the state will release Norsworthy on parole.

Law & the Courts

This Day in Liberal Judicial Activism—April 26

Judge Martha Craig Daughtrey

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.


2019— The Kansas supreme court rules (in Hodes & Nauser v. Schmidt) that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” means that any restriction on abortion must be subjected to strict scrutiny (rather than the more permissive “undue burden” standard that the U.S. Supreme Court misread into the federal Constitution in Planned Parenthood v. Casey in 1992).

The ruling comes in a challenge to a Kansas law, enacted in 2015, that prohibits use of the dilation-and-evacuation (D&E) method of abortion except where necessary to preserve the life or health of the mother. D&E is the most common method of abortion in the second trimester. In his opinions in the partial-birth abortion cases (Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)), Justice Kennedy described what ordinary D&E entails (in order to distinguish it from partial-birth abortion, which is a variant of D&E). In his solo dissent, Justice Caleb Stegall quotes Justice Kennedy’s descriptions:

The [D&E] procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.” Using the resistance “created by the opening between the uterus and vagina” the “grasped portion” is torn “away from the remainder of the body.” “For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.” The baby then “bleeds to death as it is torn limb from limb.” The child “can survive for a time while its limbs are being torn off.” The heartbeat can continue even “with ‘extensive parts of the fetus removed.’” “At the conclusion of a D&E abortion . . . the abortionist is left with ‘a tray full of pieces.’”

Six members of the Kansas supreme court would have you believe that a mother has a “natural right” to have her child killed in this way.

In his lengthy and impressive dissent, Justice Stegall castigates the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”

Law & the Courts

This Day in Liberal Judicial Activism—April 25


1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution.

1938—In his famous footnote 4 in United States v. Carolene Products Co., Justice Harlan F. Stone lays the foundation for courts, in addressing substantive due process claims, to exercise “more exacting judicial scrutiny” of certain disfavored classes of statutes.

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark all the way across the country to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers.

2018—A Ninth Circuit panel rules (in Richey v. Dahne) that a prison official is liable to a prisoner under the First Amendment for not processing a grievance that, even after the prison official’s initial objection, “included rude comments about [a] guard’s weight” and stated that “[i]t is no wonder why guards are slapped and strangled by some prisoners.”

A year later, in dissenting from the Supreme Court’s denial of review, Justice Alito, joined by Justice Thomas and Justice Kavanaugh, will question the proposition that “a prison must accept grievances containing personal insults of guards” and will marvel at the proposition that the First Amendment “require[s] a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard.” The Ninth Circuit’s decision, they observe, appears to “def[y] both our precedents and common sense.”

Law & the Courts

Sixth Circuit Ruling on ‘Fundamental Right to a Basic Minimum Education’


In a divided ruling yesterday in Gary B. v. Whitmer, a Sixth Circuit panel held that the Constitution “provides a fundamental right to a basic minimum education,” which it said means an education “that plausibly provides access to literacy.” Judge Eric L. Clay (a Clinton appointee) wrote the 61-page majority opinion, which Judge Jane Branstetter Stranch (an Obama appointee) joined. Judge Eric E. Murphy (a recent Trump appointee) wrote a 24-page dissent.

I think that Murphy’s excellent dissent has by far the better of the argument. In particular, I find the majority opinion to be highly adventuresome and recklessly nebulous.

I will outline here the basic arguments in the competing opinions and offer some comments of my own. There is a lot of back and forth between the opinions, and I won’t be able to capture it all, so I encourage interested readers to read the opinions themselves.

1. Background: Plaintiffs in the case are students at several of Detroit’s worst-performing public schools. Complaining of the abysmal conditions in their schools, they sued Michigan state officials on three theories: (a) that the poor education they are receiving violates their rights under the Equal Protection Clause; (b) that the restriction on their liberty imposed by compulsory-attendance laws can’t be justified by the inferior education they are receiving; and (c) that there is a substantive due-process fundamental right to a basic minimum education. The district court dismissed their complaint.

The big divide between the majority and the dissent is on this third theory of a fundamental right under substantive due process, and I will focus my attention on it. (The majority and the dissent agree, for different reasons, that the district court was correct in dismissing the claims based on the first two theories, and the majority invites the plaintiffs to recast and revive their claims on remand.)

2. Here’s a high-level summary of the majority’s argument (pp. 33-61) that “a basic minimum education—meaning one that plausibly provides access to literacy—is a fundamental right” guaranteed by substantive due process:

The Supreme Court has developed a “two-prong analysis” for determining whether an asserted right is fundamental: Is the right deeply rooted in our nation’s history and tradition? If not, is it implicit in the concept of ordered liberty, such that neither liberty nor justice would exist without it? (Pp. 33-36.)

Although the Court has found that there is no broad, general right to state-provided education, it has left open whether a “minimally adequate education” is a fundamental right. (Pp. 36-41.)

A basis minimum education, “meaning one that plausibly provides access to literacy,” is a fundamental right. First, there is a longstanding practice of free state-sponsored schools, which were ubiquitous when the 14th Amendment was adopted. Race-based restrictions on education have been used to subjugate African Americans and other people of color. Education has held paramount importance in American history and tradition. (Pp. 41-46.)

Second, basic literacy education is essential to the exercise of other fundamental rights and is thus implicit in the concept of ordered liberty. Effectively every interaction between a citizen and the government—voting, taxes, the legal system, jury duty—depends on literacy. Education has historically been viewed as a great equalizer. (Pp. 42, 47-51.)

The arguments for deferring to the political processes are weak. The lack of literacy of which plaintiffs complain is exactly what prevents them from obtaining a basic minimal education through the normal political process. (Pp. 51-52.)

It’s not the case that substantive due process provides only “negative” rights (that is, rights against government deprivation or denial). It can also provide “positive, affirmative rights,” such as the right to counsel in criminal cases and the right to marry. (Pp. 52-56.)

The Supreme Court has required in substantive due process cases a “careful description” of the asserted fundamental right. At this stage of the litigation, it would be difficult to define the exact limits of what constitutes a basic minimum education “sufficient to provide access to a foundational level of literacy—the degree of comprehension needed for participation in our democracy.” The task is best suited for the district court on remand. But we offer a few guideposts. First, literacy or proficiency rates do not provide sufficient evidence. Second, a rudimentary educational infrastructure “would seem to include at least three basic components: facilities, teaching, and educational materials,” the quantify and quality of which “must at least be sufficient for students to plausibly attain literacy within the educational system at issue.” (Pp. 56-58.)

3. Here’s a summary of Murphy’s dissent (pp. 62-85):

The plaintiffs allege that they have a fundamental “right to State-provided access to literacy protected by the Due Process Clause.” Both portions of this proposed right—the state-provided portion and the access-to-literacy portion—depart from settled doctrine.

The Supreme Court has repeatedly held that education is not a “fundamental right.” The Court’s decisions should lead to circuit court to be very cautious before adopting a novel right to a minimally adequate education. (Pp. 65-66.)

In any event, substantive due process has never compelled states to provide their residents with the funds they need to exercise fundamental rights; it has instead barred states from interfering with the exercise of those rights. (Pp. 66-73.) That’s consistent with the text of the Due Process Clause and with its original meaning. (Pp. 66-68.) It’s consistent with the Court’s precedents on substantive due process, which have not touched the states’ spending power. (Pp. 68-70.) It’s consistent with the Constitution’s federalist structure. (Pp. 70-72.) And it’s consistent with a proper understanding of Article III’s judicial power, as the proposed right would entangle the courts in policy controversies well outside their authority to say what the law is. (Pp. 73-74.)

The majority’s contrary result rests on several errors. The Court’s substantive due process framework does not extend to the subsidy context, and there is in any event little daylight between plaintiffs’ proposed right and the one the Court has rejected. The plaintiffs propose a vague right to the “access to literacy” without clearly identifying its contours. (Pp. 75-77.)

The right to counsel and the right to marry are not exceptions to the rule that fundamental rights are negative rights against state interference, and they don’t allow lower courts to discover a new font of positive rights. (Pp. 77-79.)

Even on the assumption that some cases could be read to have left open the possibility of a fundamental right to a minimum education, those cases involved Equal Protection claims, not substantive due process. Even then, those cases can’t justify the plaintiffs’ alleged right. (Pp. 79-82.)

The 14th Amendment was designed to stop rampant racial discrimination, but it did so by creating an equality right that applies once a state decides to provide for education, not a substantive right to a minimum education. (Pp. 82-84.)

4. I find Murphy’s critique compelling. What’s especially conspicuous is how dismally the majority carries out its acknowledged obligation to carefully describe the fundamental right that it is recognizing (or, if you prefer, to require that the plaintiffs do so). Phrases like “a basic minimum education,” “plausibly provides access to literacy,” and “the degree of comprehension needed for participation in our democracy” are hopelessly nebulous, and the majority proves the point by punting to the district court the task of giving them substance.

5. This ruling would seem to scream out for en banc review.

Law & the Courts

Vile Smear of Justice Alito

Associate Supreme Court Justice Samuel Alito arrives for the swearing in ceremony of Judge Neil Gorsuch as an Associate Supreme Court Justice in the Rose Garden of the White House in Washington, D.C., April 10, 2017. (Joshua Roberts/Reuters)

In a rant on Vox, Ian Millhiser condemns Justice Alito as a “defender of white racial innocence”—indeed, as the Court’s “foremost defender” of that supposed cause—and as a proponent of a “brand of racial resentment.” But his charges are baseless smears.

Millhiser broadly contends that Alito “bristl[es] at the idea that racism still shapes many policymakers’ decisions today, and that the legacy of past racism still affects people of color.” He seems not to grasp that it is possible to believe that racism still has those effects and to believe that a judge’s role in deciding a particular case ought to be governed by rules of logic, procedure, and evidence. I hold both those beliefs, and I’m confident that Alito does, too.

Let’s march through the shoddy particulars of Millhiser’s vicious indictment:

1. Discussing the Court’s decision on Monday in Ramos v. Louisiana requiring unanimous verdicts by juries in state criminal cases, Millhiser states that “the Court’s lead opinion pointed out [that] non-unanimous juries are a practice rooted in white supremacy” but that “[o]ne justice took umbrage with that invocation of racism: Justice Samuel Alito.”

The trusting reader might fairly think that Alito was disputing the majority’s historical account of the 19th-century adoption of non-unanimous verdicts. Only eight paragraphs later does Millhiser acknowledge that Alito was “mak[ing] a fair point”: that the re-adoption by Oregon and Louisiana of non-unanimity rules in more recent years (Oregon in 1934, Louisiana in 1974) was made “under different circumstances,” devoid of evidence of racism. Even then, Millhiser entirely omits Alito’s observation that the British Parliament and the Constitution of Puerto Rico permit non-unanimous verdicts, that the American Law Institute and the American Bar Association once advocated in their favor, and that “prominent scholars” (including Yale’s Akhil Reed Amar) have supported them.

Millhiser is also wrong to assert that only “[o]ne justice”—Alito—“took umbrage” with the majority on this point. Chief Justice Roberts joined Alito’s dissent in full (Millhiser reveals this only at the very end of his discussion of Ramos), and Justice Kagan—yes, Justice Kagan—joined all but one subpart of it, including the very part that Millhiser objects to. Millhiser obscures Kagan’s agreement with Alito by stating only that she “joined most of Alito’s opinion, most likely because Kagan is the Court’s most stalwart defender of” stare decisis. The trusting reader would not discern that she joined Alito’s supposed defense of “white racial innocence.” (His claim about Kagan on stare decisis is also dubious.)

A sidenote: Millhiser also wonders whether Alito will adhere to his “forgiving rule in a pending case [Montana v. Espinoza] alleging that [a] provision of Montana’s 1972 constitution is tainted by 19th-century anti-Catholic bias.” The provision at issue in that case explicitly discriminates on the basis of religion, and, if the Court reaches the merits, I suspect that it will be assessed by Alito on that basis.

2. Millhiser contends that Alito “began his dissent [in Department of Commerce v. New York] with characteristic anger at the idea that anyone would dare accuse the Trump administration of racism.” But here is the actual opening of Alito’s dissent:

It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision. While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable. No one disputes that it is important to know how many inhabitants of this country are citizens. And the most direct way to gather this information is to ask for it in a census. The United Nations recommends that a census inquire about citizenship, and many countries do so.

Asking about citizenship on the census also has a rich history in our country. Every census, from the very first one in 1790 to the most recent in 2010, has sought not just a count of the number of inhabitants but also varying amounts of additional demographic information….

Where is the supposed “anger”? How can Alito fairly be said to be bristling in defense of the Trump administration? It’s quite something for Millhiser to misportray this passage as he does. But that, alas, is routine for him.

3. According to Millhiser, the “greatest triumph of Alito’s efforts to write white innocence into the law came in [his majority opinion] in Abbott v. Perez,” a redistricting case decided in 2018. Note the sharp tension between Millhiser’s overall claim that Alito is distinctively bad among the justices on racial issues and the fact that he garnered a majority for his opinion, including Justice Gorsuch, who penned the racial history in Ramos that Millhiser celebrates.

I can’t make much sense of Millhiser’s critique of Alito’s opinion. Millhiser states, correctly, that Alito set out this elementary standard: “Whenever a challenger claims that a state law was enacted with discriminatory intent, the burden of proof lies with the challenger, not the State.” But he doesn’t seem to understand the standard that he quotes, as he promptly asserts that “Alito then swiftly absolved the Texas legislature of any racial guilt.” What Alito and the other justices in the majority found is that the challengers hadn’t met their burden; judges don’t provide absolutions. (Millhiser’s claim that the majority’s reasoning would have allowed “a new law recreating the same racially segregrated schools that were challenged” in Brown v. Board of Education is badly confused; Brown’s holding that “[s]eparate educational facilities are inherently unequal” does not hinge on the legislature’s motivation.)

4. Millhiser posits that there is some sort of inconsistency between “Alito’s opinions in Ramos, New York, and Perez, [where] he views allegations of racial animus with extreme skepticism,” and his concurring opinion in Ricci v. DeStefano (2009), in which he “wrote a lengthy concurring opinion suggesting that a cohort of mostly white firefighters were denied promotions due to a conspiracy between New Haven Mayor John DeStefano and a local black preacher.” But Millhiser’s account of Alito’s concurring opinion in Ricci is as sloppy as his accounts of those three other cases.

Although you wouldn’t know it from Millhiser’s account, Alito wrote his concurrence explicitly for the purpose of responding to Justice Ginsburg’s dissent. As Alito explains in his first paragraph, Ginsburg “provides an incomplete description of the events that led to New Haven’s decision to reject the results of its exam.” The purpose of Alito’s dissent is to show that “when all the evidence in the record is taken into account,” the district court was wrong to award summary judgment in favor of New Haven. All that he sets out to show is that a “reasonable jury could find that the City’s asserted reason for scrapping its test—concern about disparate-impact liability—was a pretext and that the City’s real reason was illegitimate, namely, the desire to placate a politically important racial constituency.”

Ironically, Millhiser unwittingly appears to agree with Alito that the evidence could have supported a jury finding of pretext. (He writes: “It is still possible that the Civil Service Board felt pressured to throw out the test by the mayor, and it is equally possible that the mayor acted the way he did due to pressure from Kimber.”) He simply doesn’t grasp that that’s what Alito’s concurrence sets out to do. Rather, he complains that the “implication of Alito’s opinion … is that the tests were scuttled due to a corrupt bargain.” He says that Alito “hedges a bit” and that his “ultimate conclusion” is only that a reasonable jury could have found the city’s reason pretextual. But Alito’s “ultimate conclusion” answered the limited question that he defined at the outset, and it’s a strange misunderstanding of the judicial role to think that answering that question amounts to “hedg[ing] a bit.”

Millhiser owes Alito a retraction and an apology. Alas, he has a clear record of not correcting his errors, much less of apologizing for them.

Law & the Courts

Religious Freedom and the Little Sisters of the Poor

Sister Loraine McGuire with Little Sisters of the Poor speaks to the media in Washington, D.C., March 23, 2016. (Joshua Roberts/Reuters)

When the Supreme Court gets fully back to business again in May after a brief COVID-19 hiatus, one of cases the justices will hear oral arguments in — by phone — will be the continuing saga of the Little Sisters of the Poor’s stout defense of service to the poor and vulnerable consistent with their religious beliefs.

Haven’t the Little Sisters been there, done that — and won in the Supreme Court? Hasn’t this small religious order of women founded to tend to the elderly poor already beaten back the Affordable Care Act’s mandate that the health insurance they offer their employees include contraceptives, abortifacients, and sterilizations?

Yes, the Supreme Court directed the Obama administration in 2016 to work with the Little Sisters to “arrive at an approach going forward” that would resolve the Little Sisters’ objections to the mandate. But Obama’s appointees failed to do so before leaving office. The Trump administration fashioned a broad and acceptable accommodation of religious objections to the mandate, but attorneys general from Pennsylvania and New Jersey refused to accept this regulatory accommodation. They ran to court and obtained something extraordinary — a nationwide injunction against the new rule. Their astonishing claim: The federal government is somehow powerless to guard against its own encroachment on religious freedom.

The Little Sisters have refused to back down, because, serving elderly poor is part of their calling as Catholics. Catholics faithful to the teaching of the Catholic Church. So, they’re back at the Supreme Court.

An amicus brief filed by The Catholic Association Foundation in the case highlights all the good works that would be lost if the Little Sisters and other Catholic organizations are forced to shut down. It chronicles the historic and current-day contributions to the social good by Catholic-run organizations.

It’s not too much to say that the story of Catholic charitable work and community uplift is the American story. From our nation’s Founding to the present, American Catholics have consistently served the poor and vulnerable at home and abroad. Along the way, American Catholics have ministered to the sick and the hungry, the deprived and the downtrodden, the lost and forgotten of all creeds and colors. Religious orders founded by American women Saints Elizabeth Ann Seton, Katharine Drexel, and Mother Frances Cabrini opened schools, orphanages, hospitals, and charitable missions that formed a vital part of our country’s social safety net.

The past, it turns out, is prologue. Today, Catholic-run organizations are the largest non-governmental providers of health care, education, and charitable services to the poor and vulnerable in America. Catholics partner with local and state governments to address the growing foster-care crisis and to find “forever homes” for children in need of adoption. They also minister to the needs of immigrants at our border, run food banks and soup kitchens, support pregnant women in need, stand against human trafficking, and respond to the humanitarian crises that follow natural disasters, armed conflict, and religious persecution.

In the COVID-19 pandemic, for example, the Knights of Columbus recently launched a “Leave No Neighbor Behind” initiative to encourage members to support local food banks and donate blood. The two-million-member Catholic fraternal organization is meeting the challenges of this pandemic the same way the Knights have responded to every great crisis of American life — the two World Wars, the Great Depression, the civil-rights struggle — since its founding in 1881.

The Knights of Columbus, like the Little Sisters of the Poor, serve the vulnerable and needy as an expression of Catholic faith, consistent with Catholic teaching on human sexuality and respect for life. Violating Church teaching in order to continue to be a vital part of our nation’s social safety net would make them Catholic in name only.

The two state attorneys general advance the extreme position that the federal government cannot act to secure and protect the religious freedom of nonprofits with religious objections to providing contraceptives, abortifacients, and sterilizations in their health-insurance plans. This flawed argument sets up the federal government for a future of contentious battles with all kinds of religious groups. Worse, it forces religious organizations into controversies unrelated to the needs of those they aim to serve.

Enforcing the Affordable Care Act’s mandate without the Trump administration’s broad religious accommodation will push Catholics out of the nation’s public square. For the sake of religious freedom and the care of our most needy and vulnerable, the Supreme Court should put an end to these state officials’ latest expression of hostility to Catholicism. It’s high time to leave the Little Sisters of the Poor and other religious organizations in freedom and peace.

Law & the Courts

Fifth Circuit Overturns Second TRO That Would Have Broadly Exempted Abortion from Emergency Pandemic Order


Two weeks ago, I highlighted a Fifth Circuit ruling (Abbott II) that held that a district court wrongly exempted all abortion procedures from Texas governor Greg Abbott’s order, GA-09, postponing non-essential medical procedures until April 21. On remand, the district court issued another very broad TRO (temporary restraining order) against the governor’s order. In another important ruling yesterday, the same divided panel of the Fifth Circuit overturned much of this second TRO.

I can’t concisely summarize the very thorough majority opinion, jointly authored by Judge Jennifer Walker Elrod and Judge Stuart Kyle Duncan, but I offer here some excerpts (citations simplified or omitted):

We are persuaded by [the State’s] arguments that the district court, in the April 9 TRO, disregarded our mandate in Abbott II. The court again “fail[ed] to apply . . . the framework governing emergency exercises of state authority during a public health crisis, established over 100 years ago in Jacobson v. Commonwealth of Massachusetts.” Moreover, the court again second-guessed the basic mitigation strategy underlying GA-09 (that is, the concept of “flattening the curve”), and also acted without knowing critical facts such as whether, during this pandemic, abortion providers do (or should) wear masks or other protective equipment when meeting with patients. Those errors led the district court to enter an overbroad TRO that exceeds its jurisdiction, reaches patently erroneous results, and usurps the state’s authority to craft emergency public health measures “during the escalating COVID-19 pandemic.” …

We therefore grant the writ in part and direct the district court to vacate these parts of the April 9 TRO:

  • That part restraining enforcement of GA-09 as a “categorical ban on all abortions provided by Plaintiffs.”
  • That part restraining the Governor of Texas and the Attorney General.
  • That part restraining enforcement of GA-09 as to medication abortions.
  • That part restraining enforcement of GA-09 as to patients who would reach 18 weeks LMP4 on the expiration date of GA-09 and who would be “unlikely” to be able to obtain abortion services in Texas.
  • That part restraining enforcement of GA-09 after 11:59 p.m. on April 21, 2020.

We do not grant the writ, and therefore do not order vacatur, of that part of the TRO restraining GA-09 as to patients “who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020.”…

There is no constitutional right to any particular abortion procedure. Gonzales v. Carhart (2007). Yet the district court bluntly concluded that GA-09’s temporary postponement of one kind of early-abortion method—medication abortions—is “beyond question” a violation of Casey. Despite our instructions in Abbott II, the district court failed to compile a record that remotely justifies this conclusion. Indeed, the record before the district court—which we already reviewed in Abbott II and found inconclusive—does not provide the tools even to answer the pertinent factual question. That question is not, as the district court evidently thought, whether medication abortion consumes PPE during normal circumstances, but instead whether it does so under the pandemic conditions Texas faces and GA-09 addresses. As for the legal question, the district court’s analysis fails to address why temporary postponement of one type of early-abortion method is “beyond question” unconstitutional if it leaves open other means of obtaining an abortion. Restraining state officials from implementing an emergency health measure based on such findings is “a clear abuse of discretion that produces patently erroneous results.”…

As we explained before, Jacobson prohibits courts from “usurp[ing] the state’s authority to craft measures responsive to a public health emergency.” Courts have no authority to ask whether a “particular method [is]—perhaps, or possibly—not the best.” Instead, courts may ask only whether the state has acted in an “arbitrary, unreasonable manner.” During a pandemic emergency, public authorities must make numerous, complex judgment calls. GA-09 addresses one of the most vexing: how to prevent critical strains on medical resources during a surge in contagious disease. Respondents have submitted declarations of infectious disease experts who believe GA-09 is profoundly misguided. Texas authorities believe, to the contrary, that GA-09 is critical to protect the state’s citizens and has supported that view with its own medical experts. The Supreme Court, and this court, have already explained how to resolve such an impasse: “[I]f the choice is between two reasonable responses to a public crisis, the judgment must be left to the governing state authorities.” The district court’s findings in support of the April 9 TRO failed to heed this basic constraint on judicial power….

We turn to the part of the April 9 TRO blocking application of GA-09 as to patients who “would reach 18 weeks LMP by April 21, 2020,” and who, in a physician’s judgment, are “unlikely to be able to obtain an abortion at an [ambulatory surgical center] before [her] pregnancy reaches the 22-week cutoff.” For those patients, the district court concluded GA-09 would amount to “an absolute ban on abortion” that violates Casey. Once again, the district court’s failure to apply the framework articulated in Abbott II led to a patently erroneous result that cannot be sustained on this record….

The district court’s treatment of GA-09 as “an absolute ban on abortion” as applied to this category of women was obviously wrong. A woman who would be 18 weeks LMP when GA-09 expires has up to four weeks to legally procure an abortion in Texas. No case we know of calls that an “absolute ban” on abortion. Cf., e.g., Casey (explaining that “[n]umerous forms of state regulation might have the incidental effect of increasing the cost or decreasing the availability of medical care, whether for abortion or any other medical procedure”).

GA-09 expires at the end of today, so this litigation is presumably at an end. But Governor Abbott has issued a new executive order, GA-15, that the panel notes “is similar to GA-09, but has some textual differences.”  will be in place through May 8. The panel’s opinion yesterday will be binding circuit precedent on any challenges to GA-15.

Meanwhile, several oral surgeons have filed suit against the City of Fort Worth for issuing a stay-at-home order that postpones elective medical, surgical, and dental procedures within the city but that doesn’t similarly postpone (or at least doesn’t clearly postpone) abortion procedures.

Law & the Courts

This Day in Liberal Judicial Activism—April 21

Justice William Brennan in 1972 (Library of Congress)

1969—In his majority opinion in Shapiro v. Thompson, Justice Brennan rules that state and D.C. laws that deny welfare assistance to residents of less than a year violate a constitutional right to travel interstate. Brennan’s usual ally, Chief Justice Warren, dissents on the ground that Congress had authorized the one-year residency requirement. In a separate dissent, Justice Harlan objects that he “know[s] of nothing which entitles this Court to pick out particular human activities, characterize them as ‘fundamental,’ and give them added protection under an unusually stringent equal protection test.” More broadly, Harlan observes:

“Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.”

Law & the Courts

Justice Kagan and Stare Decisis


In today’s decision in Ramos v. Louisiana, the Supreme Court ruled by a vote of 6 to 3 that the Constitution requires that jury convictions in state criminal trials be unanimous. In so holding, the justices divided sharply, and in an unusual alignment, on how stare decisis considerations ought to apply to the Court’s ruling in 1972 in Apodaca v. Oregon that Oregon’s allowance of conviction by a 10-2 vote was constitutionally permissible.

If I’m understanding them correctly, three justices—Justice Gorsuch in a plurality portion of his lead opinion, joined by Justice Ginsburg and Justice Breyer—say that Apodaca doesn’t really count as a precedent. Three justices—Justice Thomas, Justice Sotomayor, and Justice Kavanaugh—vote to overrule Apodaca. And the three justices in dissent—Alito, joined by the Chief Justice and (with the exception of one subpart) Kagan—invoke the “enormous reliance interests” of the two states that “[f]or 48 years … have conducted thousands and thousands of trials under rules allowing non-unanimous verdicts” and, on that ground, would decline to overrule Apodaca. (They don’t maintain that Apodaca reached the right result.)

There is much that can and will be written about this interesting case and the five separate opinions that it produced. Here I would like to focus on Justice Kagan’s rather surprising joinder in Justice Alito’s dissent (including in the part in which Alito decries “ad hominem [racial] rhetoric” in the lead opinion). Kagan’s joinder is surprising because I would have thought her much more susceptible than Alito or the Chief to Gorsuch’s plea that no one should vote to “leave Mr. Ramos in prison for the rest of his life” without being “prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment.”

One possible explanation for Kagan’s vote is that she holds a very strong view of stare decisis on constitutional questions. Kagan arguably suggested such a view just one year ago, when she joined a much-trumpeted dissent by Justice Breyer (in Franchise Tax Board v. Hyatt) that vaunted the importance of “stability in the law” and proclaimed that the Court should “overrul[e] prior precedent only when the circumstances demand it” (whatever those last five words might mean). But a mere week later she (along with Breyer, Ginsburg, and Sotomayor) did not hesitate to overrule a 130-year-old precedent. She again presented herself as a staunch defender of stare decisis in her dissent last June in Knick v. Township of Scott. But after the Court ruled days later in Rucho v. Common Cause that claims of excessive partisan gerrymandering are not justiciable, Kagan declared that she would “never accept” that ruling.

Further: In 2013, Kagan, in voting to overrule a constitutional precedent in Alleyne v. United States, joined an opinion by Justice Thomas that stated that the “force of stare decisis is at its nadir in cases concerning procedural rules that implicate fundamental constitutional protections.” In 2015, she joined an opinion by Justice Scalia in United States v. Johnson that overruled two precedents on the simple ground that they had “proved to be anything but evenhanded, predictable, or consistent.” In that same year she joined Justice Kennedy’s majority opinion in Obergefell v. Hodges, which only obliquely acknowledged that it was overruling overruled the Court’s 1972 summary decision in Baker v. Nelson. And in 2016 she voted to overrule two death-penalty precedents on the ground that (as the opinion she joined put it) their “underpinnings” had been “eroded” by later cases.

Perhaps Kagan has resolved to try to become more consistent in applying a very strong view of stare decisis. But it’s fair to wonder whether any such resolution is simply strategic—based, that is, on a judgment that, given the revised composition of the Court, she has more to lose than to gain from precedents being overruled.

Law & the Courts

This Day in Liberal Judicial Activism—April 20

Judge Stephen Reinhardt

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.

Harper’s complaint will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.

Law & the Courts

This Day in Liberal Judicial Activism—April 19

Supreme Court Justice William Douglas

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”

Under Douglas’s rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.

2016—Rarely if ever has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception.

In G.G. v. Gloucester County School Board, a divided panel of the Fourth Circuit defers to the Obama administration’s radical claim that federal law requires any school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.” Never mind that the Obama administration never actually interpreted the particular 1975 regulation in the manner that the panel majority imagined it owed deference to. Never mind that assigning facilities and programs on the basis of biological sex disregards—and thus clearly does not discriminate on the basis of—gender identity.

In August the Supreme Court will block the Fourth Circuit’s ruling from taking effect, and in late October it will grant the school board’s certiorari petition. In March 2017—after the incoming Trump administration repudiates the Obama’s reading of federal law—the Court will vacate the Fourth Circuit’s ruling and remand the case for further consideration.

Law & the Courts

This Day in Liberal Judicial Activism—April 18

Supreme Court Associate Justice Ruth Bader Ginsburg at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents.

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws.

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:

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

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.

2018—A Sixth Circuit panel rules (in Planned Parenthood v. Himes) that an Ohio law that bars the state department of health from funding organizations that perform or promote nontherapeutic abortions violates a Planned Parenthood affiliate’s constitutional rights.

In March 2019, the en banc Sixth Circuit, by a vote of 11 to 6, will repudiate the panel’s reasoning.

Law & the Courts

This Day in Liberal Judicial Activism—April 17

President Obama and Sonia Sotomayor in 2009 (Jewel Samad/AFP/Getty)

2009—Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Association—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:

“The power of working together was, this past November, resoundingly proven.”

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”

“On November 4, we saw past our ethnic, religious and gender differences.”

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.”

Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat.

Law & the Courts

This Day in Liberal Judicial Activism—April 16

Retired Supreme Court Justice John Paul Stevens departs the funeral of Supreme Court Associate Justice Antonin Scalia at the Basilica of the National Shrine of the Immaculate Conception in Washington, February 20, 2016. (Carlos Barria/Reuters)

2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.”

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.”