Law & the Courts

This Day in Liberal Judicial Activism—June 25

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School children on a field trip gather outside the U.S. Supreme Court in Washington (Reuters: Jim Bourg)

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

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

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

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

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

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

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

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

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

Law & the Courts

Ninth Circuit Madhouse on Asylum

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Back in the office for the first time in months, I’ve had time to dig into an amazing Ninth Circuit opinion that’s been sitting on my desk. In Al Otro Lado v. Wolf, a divided panel denied the Department of Homeland Security’s motion for a stay pending appeal of a district court’s preliminary injunction. That injunction barred DHS from enforcing its “Third Party Transit Rule” against a supposed class of some 26,000 asylum seekers.

Okay, your eyes are glazing over. So let me jump to the opening of Judge Daniel Bress’s tour de force dissent:

In a case that does not challenge it, the district court below partially enjoined an asylum rule that the Supreme Court just months ago ordered could go into effect pending appeal. See Barr v. East Bay Sanctuary Covenant, 140 S. Ct. 3 (2019). How could this even happen?

As Bress explains, the plaintiffs in Al Otro Lado challenge DHS’s “metering” policy, which limits the number of aliens who can gain access to U.S. ports of entry at any particular time. They don’t challenge the Third Party Transit Rule, which generally bars asylum for persons who did not previously seek asylum in a third country through which they traveled on their way to the United States. What’s more, in a separate lawsuit (East Bay Sanctuary Covenant v. Barr) in another district court—the wild Judge Jon Tigar in the Northern District of California—that actually does challenge the Third Party Transit Rule, the Supreme Court intervened to block the Tigar’s preliminary injunction from taking effect while the government seeks certiorari.

But somehow none of this stopped Judge Cynthia Bashant from granting the preliminary injunction against the Third Party Transit Rule in Al Otro Lado.

Bress objects that “courts cannot go around enjoining immigration rules in cases that do not challenge them, particularly where the Supreme Court has just allowed the rule to go into effect.” Beyond the minor detail that plaintiffs aren’t challenging the Third Party Transit Rule, Bashant’s injunction rests on her “unprecedented” holding that “our asylum laws apply not only to persons physically ‘in’ the United States, but to persons outside the United States who are ‘in the process of arriving into it.”

Bress further charges that the injunction “forces immigration officials to undertake an effectively impossible mission at our already overwhelmed border with Mexico.” The 26,000-person class “consists of aliens from all over the world who sought entry over a period of years at numerous points of entr[y] at the United States-Mexico border.” “Requiring the government to now apply different rules to this subclass, and even figuring out who such persons are, will be an enormous and arduous task, made only more difficult by the lack of documentation and the incredible strain under which our immigration system already labors.”

There’s much, much more in Bress’s compelling dissent.

Law & the Courts

This Day in Liberal Judicial Activism—June 24

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Supreme Court justice Antonin Scalia (Alex Wong/Getty Images)

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

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

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

Law & the Courts

‘Quotation Modified’?!?

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As someone who admires Justice Kagan’s craftsmanship, I’m surprised to learn from this tweet thread of the strange use that she made in an opinion last year of the citation appendage “(quotation modified).”

It’s conventional to modify quotations—without, of course, altering the meaning—by using bracketed material and ellipses to signal the modifications you’re making. I’m also fine on cleaning up quotations to eliminate clutter, such as brackets or ellipses, or to change confusing punctuation or capitalization, and a notation that says “cleaned up” strikes me as unobjectionable. But what Kagan did in two instances in her unanimous opinion in Thacker v. Tennessee Valley Authority was something very different.

Here is her first instance:

And Congress generally “intend[s] the full consequences of what it sa[ys]”—even if “inconvenient, costly, and inefficient.” Id., at 249 (quotation modified).

Here is what the cited source, Federal Housing Administration v. Burr (1940), actually says (emphasis added):

In our view, however, the bridge was crossed when Congress abrogated the immunity by this “sue and be sued” clause. And no such grave interference with the federal function has been shown to lead us to imply that Congress did not intend the full consequences of what it said. Hence, considerations of convenience, cost and efficiency which have been urged here are for Congress which, as we have said, has full authority to make such restrictions on the “sue and be sued” clause as seem to it appropriate or necessary.

The phrase “inconvenient, costly, and inefficient” simply doesn’t appear in Burr. What’s the point of concocting the quote? Why not simply cite Burr for the proposition? Similarly on the other change: The statement in Burr that “Congress did not intend the full consequences of what it said” might well imply that “Congress generally intends the full consequences of what it says” (my cleaned-up version of Kagan’s statement), but it doesn’t in fact say that, so why quote it as though it does?

Here is Kagan’s second instance in Thacker:

But it is no higher than appropriate given Congress’s enactment of so broad an immunity waiver—which demands, as we have held, a “liberal construction.” Ibid. (quotation modified).

Here, again, she is citing and quoting Burr. But here is what Burr says (emphasis added):

[W]e start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed.

Citing Burr seems entirely proper. But what’s the point of putting “liberal construction” in quotes when the phrase from Burr is “liberally construed”? Why not just let the citation do its proper work? Or, if Kagan wanted to quote Burr and avoid the ugly “liberal[] constru[ction],” she could easily have used the actual quote: “which demands, as we have held, to be ‘liberally construed.’”

Yesterday’s opinion by Justice Sotomayor in Liu v. SEC marked the second time that “(quotation modified)” has been used in a Supreme Court opinion:

In civil actions, the SEC can seek civil penalties and “equitable relief.” See, e.g., §78u(d)(5) (“In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, . . . any Federal court may grant . . . any equitable relief that may be appropriate or necessary for the benefit of investors”); see also §78u(d)(3) (“Money penalties in civil actions” (quotation modified)).

Unlike Kagan’s, Sotomayor’s use of “(quotation modified)” is trivial and probably gratuitous. Specifically, all that she did was eliminate a comma where she added the second ellipsis. But what’s strange about her quote is that she should have retained the words that she eliminated because they are what directly establish her proposition that “the SEC can seek … ‘equitable relief.’” Here’s the full 15 U.S.C. § 78u(d)(3), with the restored words italicized:

In any action or proceeding brought or instituted by the Commission under any provision of the securities laws, the Commission may seek, and any Federal court may grant, any equitable relief that may be appropriate or necessary for the benefit of investors.

Law & the Courts

D.C. Circuit Panel Slams District-Court Injunction Against Expedited Removal

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In September 2019, federal district judge Ketanji Brown Jackson issued a 122-page opinion, with an elaborate table of contents, in support of her preliminary injunction (in Make the Road New York v. McAleenan) barring the Department of Homeland Security from enforcing its decision expanding the reach of its expedited-removal process to the statutory limit. Jackson ruled (among other things) that plaintiffs had sufficiently established that her court had jurisdiction over the challenge to the decision; that Congress “did not intend to commit implementation of the expedited removal process it authorized entirely to agency discretion”; that plaintiffs had procedural claims under the Administrative Procedure Act; and that the DHS decision was arbitrary and capricious.

In a decision issued today, the D.C. Circuit reverses Judge Jackson. All three judges on the panel agree that Jackson got things very wrong. They differ only on which error requires vacating the injunction.

In her majority opinion, Judge Patricia Millett, joined by Judge Harry Edwards, holds that Congress did indeed commit to DHS’s “sole and unreviewable discretion”—that’s the statutory language—the judgment whether to expand expedited removal to the statutory limit. The DHS decision is therefore not subject to review under the APA, and Jackson’s preliminary injunction was improper.

In a separate opinion, Judge Neomi Rao determines that Jackson made an earlier threshold error in exercising any jurisdiction over plaintiffs’ challenge. In her 24-page opinion, Rao explains that courts “must interpret jurisdiction-stripping statutes to mean what they say” and that federal immigration law “unambiguously strips the federal courts of jurisdiction to review” the DHS decision. In addition, Rao explains, even if jurisdiction did exist, federal immigration law “categorically prohibits injunctive relief absent proceedings against an individual alien.” (Rao’s opinion is styled a dissent, rather than a concurrence in the judgment, because she would require that the district court dismiss the case for lack of jurisdiction.)

This isn’t the first time that Jackson has written a 100-page-plus opinion in support of an attention-getting injunction that she has issued on behalf of liberal plaintiffs, only to have an ideologically diverse D.C. Circuit panel overturn her for messing up a threshold issue.

Law & the Courts

The Myth of the Unqualified Trump Judge

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President Donald Trump holds a meeting in the Cabinet Room of the White House in Washington, D.C., May 18, 2020. (Leah Millis/Reuters)

In just over three years in office, President Trump has made nearly 200 Article III appointments. Although much of the related commentary has focused on the rate of these appointments, relatively little attention has been paid to their qualifications except to perpetuate the myth that they are “unqualified.”

The president’s opponents reflexively denigrate President Trump’s judicial nominees as “inexperienced or worse,” as an op-ed published in the Los Angeles Times recently asserted, or, in the words of Massachusetts senator Elizabeth Warren, “aggressively unqualified.” The facts say the opposite. By many objective measures — and according even to the American Bar Association, which Senate Democrats describe as “the gold standard by which judicial candidates are judged” — President Trump’s judicial appointments are among the most qualified in history.

The ABA “gold standard” moniker is, of course, questionable. Peer-reviewed studies have shown the ABA evaluates nominees of Republican presidents more harshly than those of Democratic presidents. According to one study, “even controlling for credentials, Clinton nominees [had] 9.7-15.9 times as high odds of getting a unanimous well qualified ABA rating as similarly credentialed Bush appointees.” That study concluded that just being nominated by a Democrat (Clinton) rather than a Republican (Bush) was “better than any other credential or than all other credentials put together.”

So it is all the more extraordinary that President Trump’s judicial appointments have earned the ABA’s “Well Qualified” rating at nearly the highest rate in five decades. Consider President Trump’s court-of-appeals appointments: The ABA has rated 77 percent of them “Well Qualified,” exceeding the 75 percent for the Clinton and Carter administrations, the 69 percent for the George W. Bush administration, the 62 percent for the George H.W. Bush administration, and the 57 percent for the Reagan administration. Only President Obama’s percentage was higher, at 80 percent. Otherwise, President Trump’s appointments to the courts of appeals have been rated “Well-Qualified” by the ABA at the highest rate of any president since at least Gerald Ford.

Similarly, President Trump’s district-court appointments have been rated historically well-qualified by the ABA — with nearly 66 percent receiving a “Well Qualified” rating. President Obama’s district-court nominees, by contrast, received that rating only 58.6 percent of the time. District-court judges appointed by Presidents Clinton, George H.W. Bush, Reagan, and Carter likewise lagged behind those appointed by President Trump.

Overall, a remarkable 68.8 percent of President Trump’s judicial appointees have earned the ABA’s “Well Qualified” rating. Since the Ford administration, only President George W. Bush exceeded that level, and even then only by less than 1 percent.

President Trump’s critics ignore this historic achievement. Instead, they mischaracterize the ABA’s few harsh ratings as representing the whole, an attack not rooted in the truth. The ABA’s decision to rate a nominee “Not Qualified” is often premised on its fixed requirement of twelve or more years of certain experience. In its rating letters, the ABA has conceded that several of the president’s nominees would have gotten a “Qualified” rating, but for barely missing this mark. For other nominees, such as Judge Lawrence Van Dyke — the only Court of Appeals nominee ever to have served as the highest appellate lawyer in two states within his circuit — the ABA’s process was clearly flawed.

Despite these anomalies, based on objective qualifications, this administration’s historic ABA “Well Qualified” record should come as no surprise. Take, for example, one of the most impressive credentials in the legal profession: a Supreme Court clerkship. President Trump has appointed 30 former Supreme Court clerks to the bench. To put that in perspective, 40 percent of President Trump’s appellate nominees clerked for the Supreme Court, against less than a quarter of President Obama’s. A similar ratio holds for appellate clerkships: 78 percent of President Trump’s appellate appointments clerked on a federal court of appeals, whereas only 40 percent of President Obama’s appellate nominees did the same.

The personal stories of these individuals, often unreported, are as impressive as their credentials. In addition to serving on the Seventh Circuit, Judge Amy Barrett and her husband raise seven children, including two adopted from Haiti. Fifth Circuit Judge Jim Ho immigrated to this country from Taiwan as a child and learned English from watching children’s television. President Trump’s first appointment to the courts of appeals, Sixth Circuit Judge Amul Thapar, was the first federal judge of South Asian descent. President Trump’s latest nominee to the D.C. Circuit, Judge Justin Walker, was raised by a single mother and graduated with high honors from Harvard Law School, although neither his mother nor his grandparents had attended college. These are not isolated examples.

President Trump’s nearly 200 new judges have also brought deep and varied experiences to the bench: 33 have served as a federal district-court or magistrate judge; 11 have served as a state supreme court justice; and 53 have served as a state-level trial or appellate judge. Sixty have served as federal prosecutors; 24 have served as state prosecutors; and over 100 have served in either the executive branch or in the legislative branch. In short, as liberal commentator Ian Millhiser recently acknowledged: “Based solely on objective legal credentials, the average Trump appointee has a far more impressive résumé than any past president’s nominees.”

Beth A. Williams is the Assistant Attorney General at the Department of Justice’s Office of Legal Policy (OLP). OLP advises and assists the President and the Attorney General in the selection and confirmation of federal judges.

Law & the Courts

This Day in Liberal Judicial Activism—June 23

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(Kuzma/Dreamstime)

2005—In an act of judicial passivism, a five-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.

It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.

Law & the Courts

This Day in Liberal Judicial Activism—June 21

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Supreme Court Justice William Douglas

1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”

Law & the Courts

This Day in Liberal Judicial Activism—June 20

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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)

2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”

Law & the Courts

This Day in Liberal Judicial Activism—June 19

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

2004—A mere audience member at an American Constitution Society panel discussion on the forthcoming presidential election, Second Circuit judge Guido Calabresi can’t restrain himself. Calabresi begins his comments from the floor by acknowledging that he is “not allowed to talk politics,” but he quickly descends into an extraordinary diatribe: “What the Supreme Court did in Bush v. Gore” was “exactly what happened when Mussolini was put in by the King of Italy” and “what happened when Hindenburg put Hitler in.” Of course, Calabresi is “not suggesting for a moment that Bush is Hitler.” But, “like Mussolini, he has exercised extraordinary power.” And “when that has happened it is important to put that person out [of office].”

A week later, Calabresi will apologize that his comments could reasonably have been understood to be partisan. In April 2005, the Judicial Council of the Second Circuit will confirm that Calabresi violated the canon of judicial ethics that provides that a judge “should not … publicly endorse or oppose a candidate for public office.”

Law & the Courts

Bostock Majority: A ‘Trans Woman’ Is Not A Woman

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In his majority opinion in Bostock v. Clayton County, Justice Gorsuch dutifully parrots some of the rhetoric of transgender ideology. In its ruling in the funeral-home case, the district court stated straightforwardly:

The Funeral Home hired Stephens in October of 2007. At that time, Stephens’s legal name was Anthony Stephens. All of the Funeral Home’s employment records pertaining to Stephens — including driver’s license, tax records, and mortuary science license — identify Stephens as a male.

Stephens served as a funeral director/embalmer for the Funeral Home for nearly six years under the name Anthony Stephens.

Gorsuch instead turns this into: “Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male.”

Similarly, in presenting his argument that discrimination on the basis of gender identity is sex discrimination, Gorsuch speaks of “a transgender person who was identified as a male at birth.”

But what these pious evasions obscure is that Gorsuch’s statutory analysis, for all its flaws, is predicated on the proposition that a man who identifies as a woman—a so-called transgender female, in transgender lingo—is in fact a man. (And likewise, of course, for a woman who identifies as a man.) Gorsuch’s opinion not only “proceed[s] on the assumption that ‘sex’ [in Title VII] … refer[s] only to biological distinctions between male and female.” His entire reasoning in favor of Stephens turns on the fact that Stephens was indeed a man when the funeral home fired him.

Consider this key passage from Gorsuch:

[T]ake an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

If a person “who was identified as a male at birth” had actually somehow become a female at the time of the contested employment action, it would make no sense to say that an employer who treated that female differently from other females was discriminating on the basis of sex. It is precisely because Stephens remained a man from birth through the time he was fired that Gorsuch can say that the funeral home “penalize[d]” him “for traits or actions that it tolerate[d] in” women.

In short, Gorsuch and all the justices in the majority reject, implicitly but emphatically, the radical transgender claim that “trans women are women” and that “trans men are men.”

More broadly, as Ryan Anderson argues in this excellent piece, Gorsuch’s opinion is built on the “gender binary” that transgender ideologues reject. His reasoning applies to men who identify as women and to women who identify as men, but it doesn’t apply at all to individuals who identify as any of the dozens of other genders that are said to exist. Simply put, if an employer decides not to hire (or decides to otherwise penalize) anyone who identifies as “genderqueer” or “pangender” or “agender” or “gender fluid,” the employer’s decision is obviously not treating men (oops, people who were “identified as male at birth”) any differently from women and therefore does not amount to sex discrimination.

Similarly, Gorsuch’s reasoning on sexual orientation extends protections to gays and lesbians but not to bisexuals. An employer who decides not to hire anyone who identifies as bisexual doesn’t treat men and women differently.

The notion that the ordinary meaning of Title VII when it was enacted in 1964 (or any time since) embodies these distinctions embedded in Gorsuch’s reasoning is of course preposterous. That’s just further evidence that Gorsuch’s reasoning is deeply unsound.

Law & the Courts

Justice Gorsuch’s Past Statements Embracing Originalism and Textualism

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Justice Neil Gorsuch in his chambers at the Supreme Court in Washington, D.C., September 13, 2019 (Jonathan Ernst/Reuters)

In my analysis of Justice Neil Gorsuch’s opinion for the Court in Bostock v. Clayton County, I noted his past adherence to originalism and textualism, citing as an example the following passage from Wisconsin Central Ltd. v. United States, 138 S. Ct. 2067, 2074 (2018):

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]

That was far from an aberration. Gorsuch’s opinions have professed the same principles in numerous cases, going back to his tenure on the Tenth Circuit. Here are just some examples of passages from past cases. (All citations are to opinions of the court unless otherwise indicated.)

  • “[I]t’s a ‘fundamental canon of statutory construction’ that words generally should be ‘interpreted as taking their ordinary . . . meaning . . . at the time Congress enacted the statute.’” After all, if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the “single, finely wrought and exhaustively considered, procedure” the Constitution commands. We would risk, too, upsetting reliance interests in the settled meaning of a statute. Of course, statutes may sometimes refer to an external source of law and fairly warn readers that they must abide that external source of law, later amendments and modifications included. But nothing like that exists here. Nor has anyone suggested any other appropriate reason that might allow us to depart from the original meaning of the statute at hand.

—New Prime, Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019) (quoting Wisconsin Central) (citations omitted)

  • [T]he real cure doesn’t lie in turning judges into rubber stamps for politicians, but in redirecting the judge’s interpretive task back to its roots, away from open-ended policy appeals and speculation about legislative intentions and toward the traditional tools of interpretation judges have employed for centuries to elucidate the law’s original public meaning. Today it is even said that we judges are, to one degree or another, “all textualists now.”

—Kisor v. Wilkie, 139 S. Ct. 2400, 2442 (2019) (concurring in the judgment)

  • The Constitution’s meaning is fixed, not some good-for-this-day-only coupon . . . .

—American Legion v. American Humanist Ass’n, 139 S. Ct. 2067, 2102 (2019) (concurring in the judgment)

  • Our job here is a modest one. We are charged with adopting the interpretation most consistent with the treaty’s original meaning.

—Washington State Dep’t of Licensing v. Cougar Den, 139 S. Ct. 1000, 1016 (2019) (concurring in the judgment)

  • If the government’s arguments appear less than convincing, maybe it’s because they’re difficult to reconcile with the Constitution’s original meaning. The Sixth Amendment was understood as preserving the “historical role of the jury at common law.”

—Hester v. United States, 139 S. Ct. 509, 511 (2019) (dissenting from the denial of certiorari) (citation and internal quotation marks omitted)

  • State governments were supposed to serve as “laborator[ies]” of democracy, with “broad power to regulate liquor under §2.” If the people wish to alter this arrangement, that is their sovereign right. But until then, I would enforce the Twenty-first Amendment as they wrote and originally understood it.

—Tennessee Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2484 (2019) (dissenting) (citations omitted)

  • By all appearances, the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway.

—Gamble v. United States, 139 S. Ct. 1960, 2005 (2019) (dissenting)

  • Bucklew’s argument fails for another independent reason: It is inconsistent with the original and historical understanding of the Eighth Amendment . . . .

—Bucklew v. Precythe, 139 S. Ct. 1112, 1126 (2019)

  • As an original matter, I acknowledge, the appropriate vehicle for incorporation may well be the Fourteenth Amendment’s Privileges or Immunities Clause, rather than, as this Court has long assumed, the Due Process Clause.

—Timbs v. Indiana, 139 S. Ct. 682, 691 (2019) (concurring)

  • This mutated version of the “intelligible principle” remark has no basis in the original meaning of the Constitution, in history, or even in the decision from which it was plucked. Judges and scholars representing a wide and diverse range of views have condemned it as resting on “misunderst[ood] historical foundations.”

—Gundy v. United States, 139 S. Ct. 2116, 2139-40 (2019) (dissenting)

  • The Constitution’s original public meaning supplies the key, for the Constitution cannot secure the people’s liberty any less today than it did the day it was ratified. The relevant constitutional provision, Article III, explains that the federal “judicial Power” is vested in independent judges. As originally understood, the judicial power extended to “suit[s] at the common law, or in equity, or admiralty.”

—Oil States Energy Servs. v. Greene’s Energy Grp., 138 S. Ct. 1365, 1381 (2018) (dissenting)

  • Concerns with substantive due process should not lead us to react by withdrawing an ancient procedural protection compelled by the original meaning of the Constitution.

—Sessions v. Dimaya, 138 S. Ct. 1204, 1233 (2018) (concurring in part and in the judgment)

  • We are not in the business of expounding a common law of torts. Ours is the job of interpreting the Constitution. And that document isn’t some inkblot on which litigants may project their hopes and dreams for a new and perfected tort law, but a carefully drafted text judges are charged with applying according to its original public meaning.

—Cordova v. City of Albuquerque, 816 F.3d 645, 661 (10th Cir. 2016) (concurring in the judgment)

  • The fact is that statutes are products of compromise, the sort of compromise necessary to overcome the hurdles of bicameralism and presentment. And it is our obligation to enforce the terms of that compromise as expressed in the law itself, not to use the law as a sort of springboard to combat all perceived evils lurking in the neighborhood.

—TransAm Trucking v. Admin. Review Bd., 833 F.3d 1206, 1217 (10th Cir. 2016) (dissenting)

  • Our job . . . [is] to apply the [Fourth] Amendment according to its terms and in light of its historical meaning.

—United States v. Carloss, 818 F.3d 988, 1015 (10th Cir. 2016) (dissenting)

  • When interpreting the Fourth Amendment we start by looking to its original public meaning — asking what “traditional protections against unreasonable searches and seizures” were afforded “by the common law at the time of the framing.”

—United States v. Krueger, 809 F.3d 1109, 1123 (10th Cir. 2015) (concurring in the judgment) (citation omitted)

  • Statutes and rules are the product of many competing interests and compromised objectives and the best guide to the “policy” they seek to vindicate is their terms and structure, not our supplemental conjuring. If Congress wants to withdraw district court jurisdiction in this or any other area of course it may, but it is not our business to substitute its judgment for ours based on our own views of optimal policy.

—United States v. Spaulding, 802 F.3d 1110, 1133 (10th Cir. 2015) (dissenting) (citation omitted)

  • Whatever our policy views on the question of protecting reports of prospective violations, it is Congress’s plain directions, not our personal policy preferences, that control.

—Genova v. Banner Health, 734 F.3d 1095, 1099 (10th Cir. 2013)

  • When seeking a statute’s ordinary meaning we must of course take care to study not just the particular isolated clause at issue but also its surrounding context.

—Prost v. Anderson, 636 F.3d 578, 585 (10th Cir. 2011)

Law & the Courts

This Day in Liberal Judicial Activism—June 18

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(Kuzma/Dreamstime)

1973—By a vote of five justices, the Supreme Court rules in United States v. SCRAP that plaintiffs, including a group of law students (“Students Challenging Regulatory Agency Procedures”), have standing to challenge the Interstate Commerce Commission’s decision not to suspend a 2.5% freight rate increase.

What is the alleged injury on which their standing is based? As the majority sums it up, the rate increase “would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area,” thus causing the plaintiffs economic, recreational and aesthetic harm. The majority even acknowledges that the case presents “a far more attenuated line of causation to the eventual injury” than in a case the previous year in which the Court found no standing, and it further observes that “all persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here.”

1980—Mere months before losing his bid for re-election, President Jimmy Carter appoints ACLU activist Ruth Bader Ginsburg to the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

Law & the Courts

This Day in Liberal Judicial Activism—June 17

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(Bill Chizek/iStock/Getty Images Plus)

1963—In the course of ruling in School District of Abington Township v. Schempp that the Establishment Clause forbids a Pennsylvania law that requires that Bible verses be read at the opening of each day of public school, the Supreme Court imposes what religion-law scholar Steven D. Smith calls the “odd couple of principles—religious neutrality and governmental secularity”—that have “bedeviled religion-clause cases ever since.” (As Smith explains, “as soon as we acknowledge that some or even most religions have a public dimension, with implications for public policy, a determinedly secular government is no longer religiously neutral.”)

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)  

2018—In their challenge (in Whole Woman’s Health v. Smith) to a provision of Texas law that would require them to bury or cremate fetal remains, abortion providers enlist the assistance of federal district judge David Ezra in harassing the Texas Catholic Conference of Catholic Bishops, which is not even a party to the litigation. On Father’s Day, Ezra issues an order giving the Texas Catholic Conference a mere 24 hours to turn over to the abortion providers some 300 internal Conference communications among the bishops and their staff. That’s on top of thousands of pages of documents the Conference had already provided.

A Fifth Circuit panel, in blocking Ezra’s order, will find his assessment of the competing interests “hard to fathom.”

Law & the Courts

The Court’s Literal Assault on Textualism

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Justice Neil Gorsuch (Bill O’Leary/The Washington Post via Getty Images)

Throughout his career on the bench, both on the Tenth Circuit and on the Supreme Court, Justice Neil Gorsuch has professed the importance of originalism and textualism and articulated what those concepts mean. In 2018, he wrote the following for the Court in a case called Wisconsin Central Ltd. v. United States:

Written laws are meant to be understood and lived by. If a fog of uncertainty surrounded them, if their meaning could shift with the latest judicial whim, the point of reducing them to writing would be lost. That is why it’s a “fundamental canon of statutory construction” that words generally should be “interpreted as taking their ordinary, contemporary, common meaning . . . at the time Congress enacted the statute.” Congress alone has the institutional competence, democratic legitimacy, and (most importantly) constitutional authority to revise statutes in light of new social problems and preferences. Until it exercises that power, the people may rely on the original meaning of the written law. [citation omitted]

This sums up well what originalism and textualism mean in statutory construction cases. Yet in his 6–3 opinion for the Court yesterday in Bostock v. Clayton County, Gorsuch rewrote Title VII of the Civil Rights Act of 1964 to include sexual orientation and transgender status — and in the process defied every sentence of the above passage.

To read Gorsuch’s opinion as applying originalist or textualist principles is to swallow the untenable propositions that (1) equating sexual orientation and transgender discrimination with sex discrimination is simply the ordinary, contemporary meaning of the operative phrase; and (2) this understanding of sex discrimination is not only correct, but also unambiguous. Not surprisingly, all three of the justices who share his judicial philosophy dissented.

To be sure, Gorsuch pays lip service to the relevance of ordinary public meaning, but he does not build that concept into anything more than the following: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” By itself, that statement is uncontroverted. It simply begs the question of the case about the meaning of sex in the statute. The Court’s opinion has a lot to say about sex not needing to be the sole or primary cause of termination for a Title VII claim, but as Justice Samuel Alito wrote in a dissent joined by Justice Clarence Thomas, its “extensive discussion of causation standards is so much smoke.”

After that, Gorsuch addresses ordinary meaning only in the form of straw men, to show what it does not mean. For one thing, he writes, “ordinary conversation” does not give us the answer. That is how he gets around his own concession, “If asked by a friend (rather than a judge) why they were fired, even today’s plaintiffs would likely respond that it was because they were gay or transgender, not because of sex.” Why is that irrelevant? Because that might give us “the primary or most direct cause rather than list literally every but-for cause.” In other words, more smoke on causation.

The second straw man is that sometimes a law’s drafters must be consulted to discern “shifts in linguistic usage or subtle distinctions between literal and ordinary meaning,” but this was not a case in which the sued employers “seek to use historical sources to illustrate” either point.

Neither argument gets the majority where Gorsuch wants to take it. Well beyond casual conversations in informal settings, the ordinary meaning of sex is different from sexual orientation and transgender status in every imaginable context, from cases involving specific parties to legislators and executive officials setting more abstract rules.

Until 2017, over half a century after the 1964 Act was passed, every single court of appeals decision facing the issue interpreted sex discrimination to mean discrimination because of biological sex. As Justice Brett Kavanaugh observes in a separate dissent, the first ten circuit decisions to consider the sexual orientation question unanimously said no; a total of 30 judges of varying judicial philosophies reached the same conclusion. Additionally, before yesterday, the Supreme Court has had numerous opportunities to decide sexual orientation cases, and none of the 19 justices who participated in those cases ever equated such discrimination with sex discrimination, subjecting it instead to a different standard of scrutiny.

The majority does not fare better when we look at other branches of government. As Kavanaugh points out, Congress has never equated sex discrimination with sexual orientation discrimination or classified one as a form of the other. It has passed numerous laws prohibiting sexual orientation discrimination in various contexts, and every single one of those expressly articulates that prohibition in addition to a prohibition of sex discrimination. The same is true of presidential executive orders and any number of federal agency regulations. It is also true of almost every state statute or executive order. For that matter, listen to any argument today regarding gender discrimination and LGBT issues, on either side, and you will notice the speaker never assumes one category includes the other.

The relevant meaning has been consistently against the majority’s view since 1964, but however much as it seems like piling on, it is still important to note that none of the historical evidence surrounding the statute’s passage remotely supports it. Alito’s dissent demonstrates that when the Civil Rights Act was being debated, the Court’s construction was beyond anyone’s imagination. If it were otherwise, opponents could have seized on that possible interpretation for a slam-dunk argument against passage. Gorsuch dismisses historical evidence on grounds that other future applications of Title VII were not contemplated in 1964, such as protecting men from discrimination and addressing sexual harassment, but of course those applications remained anchored to biological sex.

If any doubt remains that Gorsuch has abandoned any real ordinary meaning argument, read Kavanaugh’s discussion of why the “rule of law and democratic accountability” require ordinary meaning to trump literal meaning. Then read the litany of examples he gives to illustrate the point. For example, “A statutory ban on ‘vehicles in the park’ would literally encompass a baby stroller,” and a Supreme Court decision found that a statutory context would be upset if water were interpreted to be a mineral. Gorsuch cites fewer examples of this dichotomy, and he does so only to demonstrate the irrelevancy of the exercise. A little common sense can go a long way, but Gorsuch opts instead for his uncommon ability to discern meanings that waited over half a century for him to discover.

As Kavanaugh quotes Justice Antonin Scalia, “the good textualist is not a literalist.” But read Gorsuch’s opinion closely, and the only substance it contains is a literalist argument it strains to make. He poses the hypothetical of an applicant filling out a job application that was designed to ask about gay or transgender status without the employer knowing the applicant’s biological sex. That applicant could sue, he said, because deciding whether to check a box required knowledge about sex, and “sex still weighs as a factor in the employer’s decision,” even when it did not know the sex.

That does not make sense, but Gorsuch later states the closest thing to a premise for his conclusion: “[H]omosexuality and transgender status are inextricably bound up with sex.” That is cogent only in a sense that shuns ordinary meaning and invites the most open-ended literalism. “Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, ‘sex,’” Alito points out. “Many things are related to sex.”

The distinction between ordinary and literal meaning here is gaping. And at the end of the day, this obliterates the notion that there is a lack of ambiguity in Title VII, at least one that helps Gorsuch. The only thing that is clear is that the statute means the opposite of the Court’s holding. And as Alito points out, that holding is sweeping enough to threaten destructive consequences to employer obligations (the “bathroom” question), the fate of Title IX and other laws that address sex discrimination, the future of women’s sports, religious organizations’ freedom with respect to their employees, health-care benefits, and free speech.

Justice Scalia would be disappointed that his successor bungled textualism so badly yesterday. This was not judging, this was legislating — a brute force attack on our constitutional system. While the question of whether to amend Title VII to add more categories may be a difficult one as a matter of policy, the question of the Court’s role on this issue was an easy one: Allow the people to decide the issue through their elected representatives, as a majority of states already have done with respect to sexual orientation.

In Bostock, six judges acting as advocates opted to rewrite the statute themselves, short-circuiting the legislative process and in the process denying the people a decision that should be theirs to make on a major issue. This is an ominous sign for anyone concerned about the future of representative democracy.

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