Law & the Courts

Judicial Nominations Update

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Last week, D.C. Circuit judge Thomas Griffith announced that he will retire in September, giving President Trump the opportunity to appoint a third judge to that court. Given that there are no home state senators with whom the White House will need to consult, we should expect to see the process of filling Judge Griffith’s seat move very quickly.

Senate majority leader Mitch McConnell has managed to whittle down the once-long list of pending nominees on the Senate floor to just nine, and the confirmation of the 200th Trump judicial nominee is quickly approaching.

Later this week, the Senate Judiciary Committee will hold an executive business meeting to consider several judicial nominations, including six district and three federal claims court nominees.

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

Current and known future vacancies: 88

Courts of Appeals: 2

District/Specialty Courts*: 86

Pending nominees for current and known future vacancies: 42

Courts of Appeals: 0

District/Specialty Courts*: 42

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
None

 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: 9

Courts of Appeals: 0

District/Specialty Courts*: 9

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 1
  • # of pending nominees originally nominated > 400 days ago: 3
  • # of pending nominees originally nominated > 300 days ago: 3

Nominees Confirmed by the Senate during the 116th Congress: 114

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 93

Nominees Confirmed by the Senate since Inauguration Day: 199

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 146

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

Law & the Courts

Shame of the Senate

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Senate Minority Leader Chuck Schumer (D, N.Y.) (Joshua Roberts/Reuters)

Senator Chuck Schumer’s attack on Justices Gorsuch and Kavanaugh at the Supreme Court last week unleashed a national firestorm. He was not speaking on the fly, but from a prepared speech, when he shouted, “I want to tell you, Gorsuch! I want to tell you, Kavanaugh! You have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

Those words punctuated a campaign Schumer has been waging to hyper-politicize the bench for a generation, going back to his support in 2003 for the unprecedented filibusters of circuit court nominees who had “deeply held views.” By which he meant views that differ from his own deeply held views, and regardless of whether his views track anything actually in the Constitution.

After he became minority leader and another Republican president was in the White House, Schumer found himself the leader of a group of Senate Democrats who were glad to ratchet up their assault on judicial independence and constitutionalism to new heights. As soon as Kavanaugh’s nomination to the Supreme Court was announced, the minority leader declared, “I will oppose Judge Kavanaugh’s nomination with everything I have.” As if to answer the question of whether this meant he considered himself at all limited by ethics or even a modicum of decency, he followed by advancing one of the most vile character-assassination campaigns in American history. His Democratic colleagues joined him, often with openness about their rejection of any presumption of innocence, and so remorselessly that numerous Democratic contenders for president later called for Kavanaugh’s impeachment.

The attempt to bully the courts has extended well beyond that. Senator Sheldon Whitehouse routinely accuses those he disagrees with, including the justices he calls the “Roberts Five,” of being corrupted by money. In January 2019, he wrote Chief Justice Roberts criticizing the Court for accepting amicus briefs from “special interest groups that fail to disclose their donors” and adding that “a legislative solution may in order” if the practice continues. Whitehouse’s selective outrage is darkly comical when we consider that the senator himself has filed amicus briefs siding with parties and attorneys who donated to him. Or when we consider the attempt to silence the Federalist Society by the Committee on Codes of Conduct, a member of which is Whitehouse’s friend and former donor, John McConnell, now a district judge thanks to the senator’s efforts.

In August, Whitehouse filed an amicus brief in the Second Amendment case before the Court involving New York City’s gun law. The brief concluded with this threat:

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.” Particularly on the urgent issue of gun control, a nation desperately needs it to heal.

In other words, Supreme Court, if you don’t rule as we would like you to, we might have no choice but to “restructure” you. Another term for this is court-packing.

The court-packing threat is hardly confined to Whitehouse or the four Democratic colleagues who joined him on the brief: Mazie Hirono, Richard Blumenthal, Richard Durbin, and Kirsten Gillibrand. In recent months, most of the leading contenders for the Democratic presidential nomination called for some form of court-packing.

The attacks on judicial independence, and on Supreme Court justices individually, got so bad that even Justice Ginsburg has gone out of her way to counter it, calling Gorsuch and Kavanaugh “very decent, very smart individuals” and voicing her opposition to court-packing.

So Schumer’s attack on Justices Gorsuch and Kavanaugh last week was not an isolated incident, but the latest and arguably the most brazen attack in a campaign by the Left to erode the impartiality of our judicial branch.

Perhaps it is because he has been at it for so long that the minority leader is unrepentant. Consider that he responded to his criticism with a diatribe against his political adversaries in which he inserted the remark, “I’m from Brooklyn. We speak in strong language. I shouldn’t have used the words I did, but in no way was I making a threat.” He was correct only if we ignore the dictionary definition of “threat.” The lameness of his response, which actually doubled down that there would be “political and public opinion consequences for the Supreme Court,” is just one reason it has been rightly derided.  Now he also owes Brooklyn an apology.

Not only did Chief Justice Roberts make this a rare occasion to rebuke Schumer for his statement, but a good number of liberals followed suit, from law professor Laurence Tribe, who called his conduct “inexcusable,” to the Washington Post’s Ruth Marcus, who called it “particularly egregious.”

This is a moment that poses the question asked by Joseph Welch, the Army’s counsel during the Army-McCarthy hearings: “Have you no sense of decency, sir, at long last?” In this political climate, it is unacceptable for a member of Congress to make careless and dangerous threats. Judicial independence is what makes America a republic of laws, and Schumer’s shameful, mob-like tactics have no place in our political system. The Senate should affirm that principle by censuring him.

Law & the Courts

This Day in Liberal Judicial Activism—March 9

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Justice Scalia in 2010 (Reuters photo: Kevin Lamarque)

1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan.

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas).

1983—In Community for Creative Non-Violence v. Watt, the en banc D.C. Circuit rules, by a 6-5 vote, that the First Amendment bars the National Park Service from applying its anti-camping regulations to demonstrators who, as part of their protests on behalf of the poor and the homeless, sought permission to sleep in Lafayette Park. The six justices in the majority divide among four separate opinions, leading Judge Malcolm Wilkey in dissent to observe that “it seems apparent that [our six colleagues] are quite sure that these appellants should be allowed to sleep in Lafayette Park, but they have had great difficulty in figuring out why.”

Judge Wilkey, in the principal dissent (for all five dissenters), opines that even on the assumption that sleeping qualifies as speech for First Amendment purposes, the anti-camping regulations may be applied. Judge Antonin Scalia (joined by Judges MacKinnon and Bork) separately dissents “flatly to deny that sleeping is or can ever be speech for First Amendment purposes.” Scalia observes: “That this should seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.”

One year later, in Clark v. Community for Creative Non-Violence, the Supreme Court will reverse the D.C. Circuit by a 7-2 vote (with—surprise!—Justices Brennan and Marshall in dissent).

Law & the Courts

This Day in Liberal Judicial Activism—March 8

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The exterior of the U.S. Supreme Court in Washington DC (Sarah Silbiger/Reuters)

1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.

Law & the Courts

This Day in Liberal Judicial Activism—March 7

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Justice Anthony Kennedy (Chip Somodevilla/Getty)

2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy).

2018—In EEOC v. Harris Funeral Homes, a Sixth Circuit panel, in an opinion written by Judge Karen Nelson Moore, rules that Title VII’s ban on discrimination on the basis of “sex” prohibits discrimination on the basis of “transgender or transitioning status”—and that a funeral home therefore had a legal obligation to allow a male employee who “intended to transition from male to female” to dress as a woman while working at funeral services. (The ruling is currently under review in the Supreme Court.)

Law & the Courts

This Day in Liberal Judicial Activism—March 6

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(Photo: Gary Blakeley/Dreamstime) (Kuzma/Dreamstime)

1857—Chief Justice Taney’s ruling in Dred Scott marks the Supreme Court’s first use of the modern liberal judicial activist’s favorite tool—“substantive due process”—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: “[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.”

The dissenters in Dred Scott invoke, and properly apply, the originalist principles that liberal judicial activists regard as abhorrent. As Justice Curtis declares rhetorically in exposing Taney’s deviation from originalist principles: “[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it.” Further:  “[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.”

1996—On the anniversary of Dred Scott, an en banc panel of the Ninth Circuit, in Compassion in Dying v. State of Washington, rules that a Washington statute prohibiting physician-assisted suicide violates substantive due process. The majority opinion, by notorious liberal activist Stephen Reinhardt, garners votes from eight of the eleven panel members.

A year later, the Supreme Court unanimously reverses the Ninth Circuit (in an opinion styled Washington v. Glucksberg). But any assurance or clarity that the unanimous judgment might seem to provide is undercut by five separate opinions (by Stevens, O’Connor, Souter, Ginsburg, and Breyer) signaling a willingness to concoct at some future point some sort of constitutional right to physician-assisted suicide.

2003—Senate Democrats use the anniversary of Dred Scott to punish a Hispanic judicial nominee who has escaped from the liberal plantation. Initiating the unprecedented use of the filibuster as a partisan weapon to block forever an up-or-down vote on a judicial nominee, 44 Democrats prevent a Senate floor vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit. This is the first of seven unsuccessful cloture votes before Estrada ultimately withdraws his candidacy.

Law & the Courts

Trump to Get Another D.C. Circuit Vacancy to Fill

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President Trump talks to reporters as he stands with Republican Senate leaders on Capitol Hill, January 9, 2019. (Jim Young/Reuters)

Judge Thomas Griffith of the U.S. Court of Appeals for the D.C. Circuit has announced his plan to retire from the court on September 1. Although he is eligible to take senior status, it appears he plans to retire altogether.

Judge Griffith’s retirement will give President Trump a third opportunity to appoint a judge to the D.C. Circuit. (He previously appointed Greg Katsas and Neomi Rao.) Although September is late in the year, the administration has enough advance notice to have a nominee ready to go in time to fill the spot before the end of the year, either before or after the election. Given the importance of the D.C. Circuit, there is no question Senate majority leader Mitch McConnell will make filling this seat a top priority.

Who will the nominee be? It’s an excellent question. There is a wealth of highly qualified lawyers, jurists, and academics from which the administration could draw this pick. Those likely to be considered for the seat include deputy White House counsels Kate Todd and Patrick Philbin, Paul Weiss partner Kannon Shanmugam, Steven Engel at the Office of Legal Counsel, and solicitor general Noel Francisco.

Some other names that might end up in the mix would include D.C. District Court judge Carl Nichols, ambassador Chris Landau, Labor Department solicitor Kate O’Scannlain, and former associate attorney general Rachel Brand.

Some academics who could get a look (should the administration want to go in that direction), include UVA’s Aditya Bamzai, Minnesota’s Kristin Hickman, GMU’s Jennifer Mascott, and BYU’s Aaron Nielson. 

As you can see, there’s a deep bench for this spot, so if the administration moves quickly, it has the opportunity to place another excellent nominee on this important appellate court.

Law & the Courts

This Day in Liberal Judicial Activism—March 5

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Pro-life activists protest in front of a Planned Parenthood, in Philadelphia, February 11, 2017. (Charles Mostoller/Reuters)

1970—A three-judge district court, consisting of Seventh Circuit judge Otto Kerner Jr. and district judges John W. Reynolds and Myron L. Gordon, rules that a Wisconsin law, dating from 1858, that prohibits abortion before quickening violates the Ninth Amendment.

Never mind that the Ninth Amendment sets forth a mere rule of construction—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—and cannot plausibly be read as the font of any rights.

2012—Despite affirming the district court’s entry of a permanent injunction barring police from imposing content-based restrictions on roadside demonstrations by anti-abortion protesters, a Fourth Circuit panel (in Lefemine v. Wideman) rules that the plaintiff protesters are somehow not “prevailing parties” eligible for an award of attorney’s fees.

On a petition for review, the Supreme Court will summarily reverse the Fourth Circuit panel in a per curiam opinion.

Law & the Courts

Senator Schumer Thuggishly Threatens Justice Gorsuch and Justice Kavanaugh

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Senator Schumer made these appalling statements at a pro-abortion rally outside the Supreme Court today:

“I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind, and you will pay the price. You won’t know what hit you if you go forward with these awful decisions.”

Why is Senator Schumer making comments that sure seem to threaten violence against two Supreme Court justices—and that, at a minimum, certainly can reasonably be interpreted that way—if they don’t rule as he wishes? Why, for that matter, is he addressing two Supreme Court justices by their last names and not even extending them the honorific of Justice?

In very limited defense of Schumer: We can all get carried away at times and allow our passion to get the better of our judgment. Plus, President Trump’s grossly inappropriate remarks about judges may well have lowered the bar for what some deem acceptable. But Schumer’s ugly threats go far beyond what even Trump has said.

It is incumbent on Schumer to apologize promptly and fully for his remarks and to repudiate emphatically the proposition that any justice or judge should be threatened with violence.

Law & the Courts

Ginsburg and Sotomayor Are the Most Political Justices

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Supreme Court Justice Ruth Bader Ginsburg in 2017 (Jonathan Ernst/Reuters)

On February 21, Justice Sotomayor created a national spectacle by issuing a strident dissent from the Supreme Court’s 5-4 order to stay a district court injunction against the Trump administration’s implementation of its rule enforcing the Immigration and Nationality Act’s policy of withholding green cards from aliens who are likely to become a “public charge.”

Her opinion was distinctive in its attack on both the Trump administration and her colleagues for siding with it on the subject of nationwide injunctions. On the former: “Claiming one emergency after another, the Government has recently sought stays in an unprecedented number of cases, demanding immediate attention and consuming limited Court resources in each.” On the latter, she called her conservative colleagues “all too quick to grant the Government’s” requests and concluded, “Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others.” She blamed her fellow justices for nothing short of — get this — a “breakdown in the appellate process.”

Sotomayor is correct about the “unprecedented” part, because there has been a serious judicial aberration. And a “breakdown” has taken place . . . in a limited number of injunction-happy trial courts. By getting it backwards, her diatribe effectively condones this aberration while attacking those colleagues who would put the brakes on it.

Nationwide injunctions, which grant relief to parties outside the case when it is not necessary to do so to redress the injuries of plaintiffs or in the class action context, did not exist before the first such injunction was ordered in 1963. Afterwards, according to the Justice Department, they were “exceedingly rare” until the Reagan administration. But even between the Reagan and George W. Bush administrations, courts ordered only 1.5 nationwide injunctions per year, a number that increased to 2.5 per year during the Obama administration.

Under President Trump, that annual average has skyrocketed to more than 18, thanks to a bias against Trump among judges who have been willing to put their thumbs on the scale since his presidency began. This phenomenon has been visible to all who are willing to take an honest look. Less than a month after Trump’s inauguration, after the Ninth Circuit upheld a temporary restraining order against the first version of the travel ban, one of Trump’s liberal critics, University of Chicago law professor Eric Posner, acknowledged that the courts may be creating a “‘Trump exception’ to settled law on presidential powers” — one that holds the current president to a different standard from that of his predecessors. Unfortunately, subsequent experience bore out this observation.

Such a double standard is particularly dangerous when it is adopted by justices on the Supreme Court. By embracing judicial partisanship, Sotomayor has cast herself, along with Justice Ginsburg, as the most political justices in the Court’s recent history. Ginsburg belongs in this category because of comments like the ones she made during the election of 2016:

  • “I can’t imagine what the country would be with Donald Trump as our president.”
  • “He is a faker.”
  • “How has he gotten away with not turning over his tax returns?”
  • “I don’t want to think about that possibility [of a Trump victory].”

Ginsburg ultimately had to apologize for her remarks, which are more partisan than any the public has heard from sitting justices in recent years. But that has not kept her from joining Sotomayor to vote against the administration and make blistering dissents. She was the only justice to join Sotomayor’s dissent in Trump v. Hawaii, which dodged what in any other administration would have been a straightforward conclusion regarding presidential authority to issue the third version of the travel ban — gratuitously mulling over the president’s supposed anti-Muslim animus and accusing the majority of “redeploy[ing] the same dangerous logic underlying Korematsu,” the infamous decision upholding Japanese internment camps during World War II.

That followed years of their hyperbolic dissents on politically charged issues. Take, as an example, affirmative action: Sotomayor, joined by Ginsburg, accused the Court of “abdicat[ing]” its “role, permitting the majority to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan” by upholding a voter-approved state constitutional amendment barring racial preferences in state university admissions (Schuette v. Coalition to Defend Affirmative Action). Or religious freedom: Ginsburg, joined by Sotomayor and in large part by the other two liberal justices, accused the majority of reading into the Religious Freedom Restoration Act a “radical purpose” and reaching a decision that could wreak “havoc” (Burwell v. Hobby Lobby Stores). According to SCOTUSBlog, Ginsburg and Sotomayor agreed with each other (in full, part, or in the judgment) 93 percent of the time last term and 95 percent of the time the term before that.

Trump has made headlines for saying that the two justices should recuse themselves from cases involving him. They won’t do that, but it would be disingenuous to plead ignorance as to why any astute observer would question their impartiality.

It is also worth noting that Ginsburg and Sotomayor embody the characteristics of the Supreme Court that the Left wants — ideologues willing to put their thumbs on the scale for liberal causes. Remember this when Democratic presidential hopefuls say they would appoint “justices like Ginsburg and Sotomayor.”

Law & the Courts

This Day in Liberal Judicial Activism—March 4

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Joe Biden in September 2018 (Yuri Gripas / Reuters)

2016—In an op-ed in the New York Times, Vice President Biden argues—or appears to argue (his prose meanders)—that the Senate has a constitutional duty to give a Supreme Court nominee a committee hearing and an up-or-down vote on the Senate floor.

Such a claim cannot be taken seriously. The Constitution (Article II, section 2) restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. But the Constitution says nothing about how the Senate should go about exercising its power to advise and consent-or-withhold-consent, and it thus leaves the Senate entirely free to exercise that power however it sees fit.

Biden’s apparent claim is belied by his own history (as well as by the Senate’s longstanding practices for executive-branch officers and lower-court judges, whose nominations are governed by the same constitutional provision). In 2006, Biden was among the 25 Democrats who tried to filibuster the Supreme Court nomination of Samuel Alito in order to prevent an up-or-down vote on the Senate floor. And in a Senate floor statement in June 1992, Biden, as chairman of the Senate Judiciary Committee, made clear that, if a Supreme Court vacancy were to arise during the presidential campaign, his committee would not move forward on a nomination. (In his op-ed, Biden implausibly spins his 1992 statement.)

Law & the Courts

This Day in Liberal Judicial Activism—March 3

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1970—“Generalizations about standing to sue are largely worthless as such.” That’s the ominous beginning of Justice William O. Douglas’s unanimous opinion in Association of Data Processing Service Organizations v. Camp, and it gets worse after that.

Douglas takes the Administrative Procedure Act’s grant of standing to a person “adversely affected or aggrieved by agency action within the meaning of a relevant statute” and expands it into a grant of standing to anyone who identifies any interest—whether “aesthetic,” “conservational,” “recreational,” “spiritual,” or economic—that is “arguably within the zone of interests to be protected by the statute … in question.”

As then-D.C. Circuit judge Antonin Scalia will observe in a 1983 law-review article, “It is difficult to exaggerate the effect which this interpretation of the ‘adversely affected or aggrieved’ portion of the APA has had upon the ability of the courts to review administrative action.”

Law & the Courts

This Day in Liberal Judicial Activism—March 1

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The Supreme Court in Washington, D.C. (Al Drago/Reuters)

1954—The Senate, by voice vote, confirms President Eisenhower’s nomination of former California governor Earl Warren to serve as Chief Justice. Warren was already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953.

Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” That’s a highly dubious assessment, as Eisenhower also appointed Justice William Brennan. (To be fair to Eisenhower, his death in 1969, just months before the end of Warren’s time as Chief Justice but not much more than one-third of the way through Brennan’s tenure, prevented him from fully comparing what he accurately labeled his two biggest mistakes.)

2005—Relying on “international opinion,” the Supreme Court, by a vote of 5 to 4, overturns its own precedent and rules in Roper v. Simmons that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. Roper starkly illustrates how the same justices who bow to the views of foreigners are disdainfully dismissive of the rights of American citizens to engage in self-governance in this country. Here’s a summary:

When he was 17, Christopher Simmons planned a brutal murder. He assured his friends they could ‘get away with it’ because they were minors. In the middle of the night, Simmons and a friend broke into a woman’s home, awakened her, covered her eyes and mouth with duct tape, bound her hands, put her in her minivan, drove to a state park, walked her to a railroad trestle spanning a river, tied her hands and feet together with electrical wire, wrapped her whole face in duct tape, and threw her from the bridge. Exactly as Simmons planned, his victim drowned an unspeakably cruel death in the waters below.

Simmons confessed to the murder. At the death-penalty phase of his trial, the judge instructed the jurors that they could consider Simmons’s age as a mitigating factor, and the defense relied heavily on that factor. The jury recommended, and the trial judge imposed, the death penalty.

In his majority opinion (joined by Justices Stevens, Souter, Ginsburg, and Breyer), Justice Kennedy aims to discern “the evolving standards of decency that mark the progress of a maturing society.” Kennedy looks to the 12 states that have no death penalty and the 18 states that, “by express provision or judicial interpretation, exclude juveniles from its reach” to conclude that a majority of states—30 in total—reject the death penalty for 16- and 17-year-olds. In dissent, Scalia counters that it makes no sense to count states that have no death penalty: “Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car.”

Kennedy then finds “respected and significant confirmation” for his ruling in “the overwhelming weight of international opinion against the juvenile death penalty.” According to Kennedy, the fact that the United States, alone with Somalia in the world, has not ratified Article 37 of the United Nations Convention on the Rights of the Child—which contains an express prohibition on capital punishment for crimes committed by juveniles—supports his conclusion that the juvenile death penalty is unconstitutional. But as Justice Scalia observes in dissent, “Unless the Court has added to its arsenal the power to join and ratify treaties on behalf of the United States,” the United States’ non-ratification of Article 37 undercuts the majority’s position. Scalia also points out that the justices in the majority would never aim to conform American law to the rest of the world on matters like the exclusionary rule, church-state relations, and abortion.

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This Day in Liberal Judicial Activism—February 29

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(Shutterstock)

1892—“It is a familiar rule that a thing may be within the letter of the statute and yet not within the statute because not within its spirit nor within the intention of its makers.” A unanimous Supreme Court declares this spirit-of-the-law canon of nontextualism in Church of the Holy Trinity v. United States, as it holds that a federal law barring anyone from assisting or encouraging the importation of an alien by entering into a contract in advance with the alien “to perform labor or service of any kind in the United States” did not apply to a contract by which a church in New York contracted with E. Walpole Warren, an alien residing in England, to become its pastor.

The Court acknowledges that the law, in spelling out specific exceptions for professional actors, artists, lecturers, singers, and domestic servants, “strengthens the idea that every other kind of labor and service was intended to be reached.” But its examination of legislative history leads it to assert that “the intent of Congress was simply to stay the influx of … cheap unskilled labor.”

1972—A divided three-judge district court rules (in YWCA v. Kugler) that New Jersey’s abortion statute is unconstitutionally vague and violates the constitutional privacy rights of physicians and of their patients seeking abortion.

In dissent, Judge Leonard I. Garth explains that the statute, as authoritatively interpreted by the New Jersey supreme court, is indistinguishable from the statute that the U.S. Supreme Court held to be “constitutionally definite” (i.e., not unduly vague) in its recent decision in United States v. Vuitch (1971). He further concludes that the “interests of family privacy or convenience … cannot be elevated over the right to live” and that it is therefore permissible for a state, in pursuit of its “compelling interest in the preservation of life, including fetal life,” to bar abortion.

Law & the Courts

Justice Gorsuch and Judicial Modesty

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Emily Bazelon has written a very long article against originalism. There’s a lot that I think she gets wrong. In this post, I’m going to focus only on her opening dozen or so paragraphs where she argues that Justice Gorsuch’s commitment to textualism ought to require him to rule that Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of sexual orientation and gender identity. (The pending cases, argued last October, that present those questions are Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G & G.R. Harris Funeral Homes v. EEOC.)

1. Bazelon seems to think that the fact that the lawyer for the Title VII plaintiff says that sex in Title VII means biological sex suffices to establish the merits of his fuller effort at a textualist argument. (“[I]f Gorsuch meant what he said about faithfully following the text and agreed with Cole about its meaning [i.e., sex as biological sex], it was hard to see how he could vote against Stephens [the transgender challenger].”) Indeed, she never even presents what his argument is. She also evidently doesn’t realize that the defendants’ arguments also rest on sex meaning biological sex.

The core claim of the plaintiffs in the various Title VII cases is that any employment practice that can be applied only by identifying an employee’s biological sex amounts to discrimination on the basis of sex under Title VII. But that claim rests on a caricature of textualism as a sort of hyperliteralism denuded from context. Further, it is contradicted by the longstanding acceptance of sex-specific restrooms, sex-specific locker rooms and shower facilities, and dress codes, all of which require taking account of an employee’s sex. In short, Title VII has never been understood to bear the textual meaning that plaintiffs now maintain is compelled.

As Fifth Circuit judge James C. Ho has crisply explained, the traditional understanding of Title VII’s ban on discrimination “because of … sex” is that it adopts an anti-favoritism theory (employers can’t favor men over women, or vice versa) rather than the blindness theory (employers must be entirely blind to a person’s sex) that plaintiffs imagine. That anti-favoritism theory is fully consistent with the text of Title VII, and, unlike the blindness theory, it also comports with how Title VII has been understood for the full history of its existence.

2. Bazelon misquotes Gorsuch’s questions at oral argument and uses her misquote to concoct a gotcha moment in which “Gorsuch seemed caught between the plain meaning of ‘sex’ and a worldview he shares—in other words, between principles and politics.” Here’s the relevant passage from the transcript (pp. 26-27):

JUSTICE GORSUCH: When a case is really close, really close, on the textual evidence, and I — assume for the moment I’m –

COLE: Yeah.

JUSTICE GORSUCH: — I’m with you on the textual evidence. It’s close, okay? We’re not talking about extra-textual stuff. We’re — we’re talking about the text. It’s close. The judge finds it very close. At the end of the day, should he or she take into consideration the massive social upheaval that would be entailed in such a decision, and the possibility that — that Congress didn’t think about it –

COLE: So –

JUSTICE GORSUCH: — and that – that is more effective — more appropriate a legislative rather than a judicial function? That’s it. It’s a question of judicial modesty.

Contrary to what Bazelon charges, Gorsuch is not inquiring whether he should abandon what textualism dictates in order to avoid “massive social upheaval.” He is instead inquiring whether, on the assumption that a text is susceptible to two meanings and it’s a “really close” call which of the two is correct, the fact that one meaning would lead to “massive social upheaval” would be a reason to disfavor it.

It’s not an abandonment of textualism to ponder whether, in instances in which textualism doesn’t yield a clear answer, other principles might need to supplement it. Gorsuch’s proposed principle of judicial modesty strikes me as an eminently sensible tiebreaker. (To be clear, I don’t think that a tiebreaker is needed in these cases.)

3. Bazelon suggests that textualism forbids any consideration of a law’s purpose. But as Justice Scalia put it:

The term purposivism suggests, wrongly, that its supposed antonym—namely textualism—precludes consideration of a text’s purpose. That is not so. It is untrue that a textualist judge must “put on blinders that shield the legislative purpose from view.” As we will demonstrate, the textualist routinely takes purpose into account, but in its concrete manifestations as deduced from close reading of the text. It is when an abstract purpose is allowed to supersede text that the result is what Justice Felix Frankfurter cautioned against: “interpretations by judicial libertines” who “draw prodigally upon unformulated purposes or directions.” [Reading Law: The Interpretation of Legal Texts 20 (co-authored with Bryan A. Garner).]

The Supreme Court has long discerned in Title VII’s ban on sex discrimination the purpose of ensuring that members of one sex are not exposed to disadvantageous treatment to which members of the other sex are not exposed—in Judge Ho’s terms, the anti-favoritism theory. Reading that ban to prohibit discrimination on the basis of sexual orientation or gender identity would, as the Department of Justice has explained, contradict that purpose.

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