Law & the Courts

This Day in Liberal Judicial Activism—July 29

Justice Stephen Breyer (Chip Somodevilla/Getty)

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

Law & the Courts

This Day in Liberal Judicial Activism—July 28

Judge Rosemary Barkett.

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”

Law & the Courts

This Day in Liberal Judicial Activism—July 27

(Yong hian Lim/Dreamstime)

2018—In a challenge to the Trump Administration’s policies on transgender individuals serving in the military, federal district judge Marsha Pechman orders President Trump to provide plaintiffs information and documents bearing on his deliberations and communications in connection with adoption of the policies. Nearly a year later, a unanimous Ninth Circuit panel (in Karnoski v. Trump) will vacate Pechman’s discovery order and fault her for failing to give proper consideration to the president’s executive privileges.

Law & the Courts

This Day in Liberal Judicial Activism—July 26

Oklahoma State Capitol (Wikimedia Commons)

1983—Barely four months after reiterating that abrogation of the state’s common-law sovereign immunity is a matter for the legislature, not for the courts, the Oklahoma supreme court (in Vanderpool v. State) abolishes Oklahoma’s sovereign immunity. The majority explains that it is imposing “what we perceive to be the more just and equitable view.”

Law & the Courts

This Day in Liberal Judicial Activism—July 25

Justice David Souter at Harvard Law School. (Wikimedia Commons)

1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

2018—An Eleventh Circuit panel rules (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act, which displaced a higher minimum wage adopted by the city of Birmingham, “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.”

The panel’s reasoning has radical implications for further judicial intrusion on the legislative processes. The panel concludes that the allegation that the state law denied 37% of Birmingham’s black wage earners a higher wage, compared to only 27% of white wage earners, would suffice to show “discriminatory impact.” The panel doesn’t say what disparity would be too small. (It would be surprising if lots of routine legislative actions didn’t have a much larger disparate impact.) Nor does it confront the reality that a higher minimum wage could have a disproportionate impact on job loss and on loss of entry-level job opportunities for black workers.

The panel further cites the 10% disparity as evidence of discriminatory purpose and adds in what it sees as the “rushed, reactionary, and racially polarized nature of the legislative process.” Are we really going to have judges deciding how long a legislative process ought to take? And while the panel finds of special interest the race of the legislators and of the members of the Birmingham city council, it never stops to consider whether they divide along the same lines on economic policy. If these considerations “plausibly imply discriminatory motivations were at play,” then lots of ordinary legislative decisions will be subject to judicial second-guessing.

In January 2019, the full Eleventh Circuit will vacate the panel’s opinion and grant rehearing en banc. That en banc proceeding is pending.

Law & the Courts

New York City Is Still Running from Supreme Court Review of Gun Laws

(Leah Millis/Reuters)

This past January, the Court granted review in New York State Rifle & Pistol Association v. City of New York, the Supreme Court’s first Second Amendment case in nearly ten years. The case addresses NYC’s statute prohibiting the transportation of handguns outside of city limits.

After review was granted, and in an apparent attempt to render the lawsuit moot and escape Supreme Court review, NYC decided to run instead of fight.

On July 3, 2019, NYC tried to file a letter with the Supreme Court informing the Court that NYC officials were in the process of changing the underlying transportation regulations. The change would allow license holders to transport their handguns outside of city limits to other homes or nearby shooting ranges — exactly the relief requested by Petitioners in the underlying case. The letter specified that NYC was moving forward with the amendments and that there was also going to be a change at the state level.

In a particularly brazen move, completely ignoring the questions presented to be answered by the Supreme Court, NYC told the Supreme Court that should the Court require the city to file a brief by its current deadline, the city would refuse to actually address those questions and would only discuss why the city believes the case is moot.

On July 8, 2019, the Supreme Court did not accept the letter for filing either because the city failed to follow the appropriate procedure or because of Petitioners’ objection.

NYC hasn’t stopped running though. Now they are trying a new tactic. Attempting to address the rejected letter, on Monday NYC filed a Suggestion of Mootness with the Court. NYC claims that because the transportation prohibition statute has been amended, the case before the Court is moot and the Court should not address the merits of the Second Amendment challenge.

NYC also requested additional time to file its brief, in order to give the Court “breathing space for the Court to determine how it wishes this case to proceed, if at all.”

In reality, the Suggestion of Mootness is a clear sign that NYC will do whatever it can to avoid Supreme Court review.

The underlying case was filed by Petitioners in March 2013 — more than six years ago. Over those six years, NYC has vehemently defended its handgun transportation ban, through almost every level of judicial review. In fact, NYC was successful at both the District Court and the Second Circuit. The city even opposed the Supreme Court granting review in this case, specifically stating NYC believed the Second Circuit “carefully reviewed petitioners’ constitutional claims and correctly concluded that they lack merit.”

If that were the case, why wouldn’t NYC be willing to defend its handgun transportation ban before the Supreme Court?

Theoretically, it is possible that NYC officials have, after six years and a countless amount of taxpayer dollars spent on litigation, finally read and understood the Second Amendment and realized the error of their ways.

But let’s not fool ourselves here.

Most likely, city officials realize that they can’t win at the Supreme Court and are trying to preemptively cut their losses before they set “bad precedent” for the gun control movement across the nation. Given the Supreme Court’s nearly decade-long silence on the topic, this case has the potential to bring the lower courts back in line with the Supreme Court’s treatment of the right to keep and bear arms in Heller and McDonald.

Let’s not forget, there are other Second Amendment petitions sitting on the Justices’ desks, such as Pena v. Horan, that could easily be granted should this case be mooted.

In any event, the question remains, will the Supreme Court agree that the case is now moot? Or will the Court refuse the city’s clear attempt to evade review.

Law & the Courts

Judicial-Nominations Update

Last week, the Senate confirmed two more judicial nominees, including Peter Phipps to the U.S. Court of Appeals for the Third Circuit. With Phipps’s confirmation, the Third Circuit has flipped from the majority of active judges being Democrat-appointed to Republican-appointed.

The full Senate is expected to hold confirmation votes for two more judges this week. One of those nominees is Brian Buescher, President Trump’s nominee to the District of Nebraska. Late last year, Buescher was questioned by Senate Democrats Kamala Harris and Mazie Hirono about his affiliation with the Knights of Columbus.

Here is a full update on the status of President Trump’s federal judicial nominations:

Current and known future vacancies: 139

Courts of Appeals: 5

District/Specialty Courts*: 134

Pending nominees for current and known future vacancies: 57

Courts of Appeals: 1

District/Specialty Courts*: 56

* Includes the Court of Federal Claims and the International Trade Court

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden 6/24/19 30 7/17/19

 Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

 Nominees Awaiting Floor Votes: 42

Courts of Appeals: 0

District/Specialty Courts: 42

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 0
  • # of pending nominees originally nominated > 400 days ago: 16
  • # of pending nominees originally nominated > 300 days ago: 17

Nominees Confirmed by the Senate during the 116th Congress: 46

Supreme Court: 0

Courts of Appeals: 13

District/Specialty Courts: 33

Nominees Confirmed by the Senate since Inauguration Day: 131

Supreme Court: 2

Courts of Appeals: 43

District/Specialty Courts: 86

Law & the Courts

This Day in Liberal Judicial Activism—July 24

Judge Stephen Reinhardt

2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)

At her hearing, Pillard delivers false and deceptive testimony about her own writings—and, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind: “I am a mother” is part of how she deflects criticism of her equal-protection argument against abstinence-only sex education.

Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda.

2018—“Judge [Stephen] Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death,” asserts Ninth Circuit chief judge Sidney Thomas in an opinion in a case (Altera Corp. v. Commissioner of Internal Revenue) in which the decisive vote on the divided panel is said to have been cast by Reinhardt. (Emphasis added to quote.)

But Reinhardt died nearly four months earlier, probably before the dissenting judge ever circulated her draft dissent. Further, a judge is free to change his position at any time before an opinion issues, so it is difficult to discern what Thomas’s claim that Reinhardt “formally concurred” might actually mean.

In a change of course two weeks later, the Ninth Circuit will withdraw the ruling so that a reconstituted panel can decide how to proceed.

In February 2019, in vacating the judgment in another case in which Reinhardt was said to have posthumously cast the deciding vote (and indeed to have been the author of the majority opinion), the unanimous Supreme Court in Yovino v. Rizo will repudiate chief judge Thomas’s misunderstanding:

“We are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”

Law & the Courts

This Day in Liberal Judicial Activism—July 23

(Wikimedia)

1971—In Calvert Cliffs’ Coordinating Committee v. Atomic Energy Comm’n, D.C. Circuit judge J. Skelly Wright enthusiastically welcomes “what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment”:

Several recently enacted statutes attest to the commitment of the government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental Policy Act of 1969. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. [Emphasis added.]

In a 1983 law-review article, then-D.C. Circuit judge Antonin Scalia will identify Calvert Cliffs as having “beg[u]n the judiciary’s long love affair with environmental litigation” and will contrast Wright’s nearly boundless conception of the judicial role with the much more modest understanding set forth in Marbury v. Madison. Further, as Scalia observes, Wright doesn’t even bother to explain what the Calvert Cliffs’ Coordinating Committee is and how it has standing to challenge the agency’s action:

From reading the opinion, one is unable to discern whether the Calvert Cliffs’ Coordinating Committee, which brought construction of the Calvert Cliffs nuclear generating plant to a halt, was composed of environmentalists, or owners of land adjacent to the proposed plant, or competing coal-generating power companies, or was even, perish the thought, a front for the Army Corps of Engineers, which is reputed to prefer dams to atoms.

Law & the Courts

This Day in Liberal Judicial Activism—July 22

(Shutterstock)

2004Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.    

2016—By a vote of 4 to 1, with the members in the majority adopting different rationales, the Alaska supreme court rules (in Planned Parenthood of the Great Northwest v. Alaska) that a 2010 voter initiative that provides for parental notification for a minor’s abortion violates the state constitution.  

Law & the Courts

This Day in Liberal Judicial Activism—July 20

Justice William Brennan in 1972 (Library of Congress)

1990After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”  

Law & the Courts

One Big Lesson from Phipps Confirmation

In addition to flipping the Third Circuit, the Senate’s swift confirmation of Peter Phipps provides one big, if obvious, lesson that ought to energize the White House to move swiftly to fill the remaining federal appellate vacancies: The opposition from Senate Democrats is very weak.

Have in mind that home-state Democratic senator Bob Casey strongly opposed Phipps’s nomination and refused to return a positive blue slip. The Left further objected to Phipps on the ground that he would be the fourth consecutive white male appointed by President Trump to the Third Circuit. Despite these possible grounds of opposition, three Senate Democrats—Doug Jones, Joe Manchin, and Kyrsten Sinema—joined all 53 Senate Republicans in voting to confirm Phipps.

Second Circuit judge Dennis Jacobs announced in early March that he would be taking senior status on May 31. That date has come and passed without any nomination to fill his vacancy. Ditto for Christopher Droney who announced in April that he would be taking senior status on June 30. (And, yes, a nomination can occur to an announced future vacancy before that vacancy arises, and so can Senate confirmation. It is only the post-confirmation act of appointment that requires an existing vacancy. The very reason why many judges announce that they will be taking senior status is to help keep the period of vacancy as short as possible.)

If and when President Trump fills these seats, Republican-appointed judges on the Second Circuit will outnumber Democratic-appointed judges by a count of seven to six. And five of the seven Republican appointees will be Trump appointees.

Consultation with home-state Democratic senators (in New York for the Jacobs vacancy, in Connecticut for the Droney vacancy) is one thing, and should already have amply occurred by now. Negotiating with them is something very different, and there is no point in wasting time on it.

Law & the Courts

Third Circuit Flips

As anticipated last fall when Judge Thomas Vanaskie announced his decision to take senior status, the Senate’s confirmation earlier this week of Peter Phipps to Vanaskie’s vacancy means that the Third Circuit will have a majority of its judges in active service—eight of fourteen—who were appointed by Republican presidents.

At the outset of the Trump administration, the Third Circuit had seven Democratic appointees, five Republican appointees, and two vacancies. Upon Phipps’s taking his seat, it will become the first federal court of appeals that President Trump will have flipped from a majority of Democratic appointees to a majority of Republican appointees.

The Second Circuit will flip to a majority of Republican appointees if and when the White House fills the two existing vacancies. The Eleventh Circuit has moved from a large Democratic-appointee majority (8-3, with one vacancy) to a 6-6 tie. (The Fifth, Sixth, Seventh, and Eighth Circuits had majorities of Republican appointees at the outset of the Trump administration and have expanded the margins.)

Again, though, have in mind that party of appointing president is an imperfect proxy for judicial philosophy. In particular, the number of conservative judges is usually lower than the number of Republican-appointed judges.

Law & the Courts

Justice Kagan Explains Why Roe v. Wade Should Be Overruled

In a talk yesterday, Justice Kagan emphatically stated that she will “never accept” the Supreme Court’s end-of-Term ruling in Rucho v. Common Cause, in which the Court ruled by a 5-4 vote that claims of excessive partisan gerrymandering present “political questions” that lack any judicially discoverable and manageable standards for resolving them and therefore cannot be decided by the federal courts. Kagan explained that she wrote her dissent in part “to convince the future”—to help set the stage for the case’s eventual overruling.

I think that Kagan is completely right on the meta-principle that she is setting forth—that some rulings are so wrong that no justice should ever be obligated to acquiesce in them. Whether that meta-principle fairly applies to Rucho is, of course, a separate matter. For present purposes, I will simply note that that meta-principle amply explains why the Supreme Court justices who recognize how “tragically wrong” Roe v. Wade is (to borrow Kagan’s assessment of Rucho) should vote to overrule it.

More broadly, Kagan’s comments illustrate that there are no neutral principles of stare decisis that can be divorced from underlying understandings of what the Constitution means.

Law & the Courts

This Day in Liberal Judicial Activism—July 19

(Photo Illustration: NRO)

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.  

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.” 

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction. 

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