Law & the Courts

This Day in Liberal Judicial Activism—May 27

Same-sex marriage supporters outside the California Supreme Court in 2013. (Robert Galbraith/Reuters)

2009—Odd bedfellows, indeed! Supposed constitutional conservative Theodore B. Olson, solicitor general under President George W. Bush, betrays the legal principles that he has purported to stand for over the course of his public career as he joins forces with liberal David Boies, his adversary in Bush v. Gore, to file a lawsuit asking a federal district court in California to invent a federal constitutional right to same-sex marriage.

Law & the Courts

This Day in Liberal Judicial Activism—May 26

Justice Sonia Sotomayor

2009—Implementing his threat to select a justice who will make decisions based on empathy, President Obama nominates Second Circuit judge Sonia Sotomayor to fill the seat of retiring justice David Souter. During the confirmation process, the “wise Latina” (at least in her own self-conception) will demoralize and disgust her supporters on the Left, as she implausibly masquerades as a caricature of a judicial conservative and even emphatically repudiates Obama’s empathy standard.

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This Day in Liberal Judicial Activism—May 25

Protest signs outside the Supreme Court in Washington, D.C., April 25, 2018. (Yuri Gripas/Reuters)

2017—By a vote of 10 to 3, the en banc Fourth Circuit affirms a district court’s nationwide injunction on President Trump’s executive order that temporarily bars immigration from six majority-Muslim countries. That order spells out that each of the six countries “is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones.” But Chief Judge Gregory, author of the majority opinion, looks to campaign statements by candidate Trump to dismiss the order’s stated reasons as “a pretext for what really is an anti-Muslim religious purpose.”

In dissent, Judge Paul Niemeyer (joined by Judges Shedd and Agee) faults the majority for violating the Supreme Court’s precedent in Kleindienst v. Agee (1972), “which held that courts are precluded from ‘look[ing] behind’ ‘facially legitimate and bona fide’ exercises of executive discretion in the immigration context to discern other possible purposes.”

(In October 2017, the Supreme Court will vacate the Fourth Circuit’s judgment on the ground that the expiration of the relevant provision of the executive order meant that there was no longer a “live case or controversy.”)

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Abortion and the Establishment Clause?!?

In her online New York Times column yesterday, Linda Greenhouse makes the extraordinary claim that laws against abortion violate the Establishment Clause. Let’s consider her argument.

1. Greenhouse begins by asserting: “If the First Amendment’s Establishment Clause means anything, it has to mean that God’s will cannot be a constitutional justification for a law that erases an individual right.”

Let’s set aside the question-begging assertion that there is some pre-existing “individual right” to abortion. If Greenhouse’s assertion about the meaning of the Establishment Clause were correct, why would that meaning apply only to “a law that erases an individual right”? Why wouldn’t it apply equally to any other law for which “God’s will” is offered as “a constitutional justification”?

It would seem that Greenhouse has tried to gerrymander her assertion in order to hide its obvious flaws. Did legislators who believed that racial discrimination was contrary to “God’s will” violate the Establishment Clause when they enacted civil-right laws? Do legislators who believe that God calls us to be stewards of the environment violate the Establish Clause when they support environmental protections?

(Greenhouse’s gerrymander also isn’t successful. Many civil-rights laws “erase[d] an individual right” to hire and fire at will, and many environmental laws “erase[] an individual right” to do with one’s property as one pleases.)

Many or most religious believers aim to root their public-policy positions in what they understand (imperfectly) to be “God’s will.” My own position in support of laws against murder, for example, is ultimately founded not on some consequentialist or utilitarian justification but on my belief that every human being is made in the image and likeness of God and should therefore be protected in law against unjust killing. It is difficult to imagine that the historical justification for our laws against murder can be separated from some such religious conviction.

Under Greenhouse’s illogic, a legislator who is an atheist can support a policy position based on his own understanding of right and wrong but a legislator who is a religious believer can’t support that same policy position if his own understanding of right and wrong is based on his religious beliefs. That makes no sense.

2. Embracing a nutty solo dissent by Justice Stevens thirty years ago, Greenhouse posits that the statement of biological fact that “the life of each human being begins at conception” is “an unequivocal endorsement of a religious tenet.” But legislators cannot be forbidden from recognizing scientific reality merely because some religious institutions also recognize that reality.

Greenhouse, I’ll note, does not offer her own view of when “the life of each human being begins.” Perhaps that’s because she can’t offer a coherent alternative. Or perhaps it’s because, under her commitment to abortion rights, she thinks it immaterial that abortion kills the life of the in utero human being. Or perhaps both.

3. Greenhouse asserts, more broadly, that “the United States is reconfiguring itself into a theocracy that would have appalled our Founding Fathers.” In the context of her wild Establishment Clause claim, it’s clear that the first half of her assertion—that “the United States is reconfiguring itself into a theocracy”—encapsulates her indefensible position that legislators can’t act on religiously based moral understandings of right and wrong. So much for her incendiary rhetoric of “theocracy.”

The historical amnesia reflected in Greenhouse’s claim that “our Founding Fathers” would have been “appalled” by legislators’ reliance on religiously founded moral understandings is astounding. I’ll limit myself to a few examples (and note that Greenhouse offers none in support of her claim).

In his Farewell Address, George Washington famously declared:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them. A volume could not trace all their connections with private and public felicity. Let it simply be asked: Where is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths which are the instruments of investigation in courts of justice? And let us with caution indulge the supposition that morality can be maintained without religion. Whatever may be conceded to the influence of refined education on minds of peculiar structure, reason and experience both forbid us to expect that national morality can prevail in exclusion of religious principle.

Here’s a passage from Washington’s first inaugural address:

[I]t would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being who rules over the universe, who presides in the councils of nations, and whose providential aids can supply every human defect, that His benediction may consecrate to the liberties and happiness of the people of the United States a Government instituted by themselves for these essential purposes.

As the Supreme Court recounted in Lynch v. Donnelly (1984):

The day after the First Amendment was proposed, Congress urged President Washington to proclaim a day of public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favours of Almighty God. President Washington proclaimed November 26, 1789, a day of thanksgiving to offer our prayers and supplications to the Great Lord and Ruler of Nations, and beseech Him to pardon our national and other transgressions.

Thomas Jefferson prayed in his first inaugural address that God guide government leaders in making public policy: “May that Infinite Power which rules the destinies of the universe lead our councils to what is best.” Likewise, in his second inaugural address, Jefferson asked Americans “to join in supplications with me that He will so enlighten the minds of your servants, guide their councils, and prosper their measures that whatsoever they do shall result in your good, and shall secure to you the peace, friendship, and approbation of all nations.”

What would have “appalled” most or all of the Founding Fathers is Greenhouse’s postmodern notion that it is illegitimate for legislators to seek to do “God’s will.” (To be clear, doing God’s will isn’t, in the understanding of most religious believers, remotely equivalent to having the law compel all good and punish all evil. A sound understanding of separation of church and state is supported by Christian teaching, and religious believers have also long understood God’s will to take into account prudential limits on what legislation should aim to achieve.)

Law & the Courts

This Day in Liberal Judicial Activism—May 24

(Brendan McDermid/REUTERS)

2016—Federal district judge Michael H. Watson rules (in Ohio Organizing Collaborative v. Husted) that an Ohio law that altered the period for early in-person voting from 35 days before Election Day to 29 days before Election Day violates the Equal Protection Clause and the Voting Rights Act.

Three months later, a divided panel of the Sixth Circuit (with Obama appointee Jane Branstetter Stranch in dissent) will reverse Watson’s ruling. In his majority opinion, Judge David McKeague explains that the Ohio law “applies even-handedly to all voters” and “continues to provide generous, reasonable, and accessible voting options to Ohioans.” Indeed, Ohio “is a national leader when it comes to early voting opportunities,” and “a third of the states offer no early voting.” McKeague labels “astonishing” the proposition that Ohio’s previous law “established a federal floor that Ohio may add to but never subtract from.” Such a proposition “would discourage states from ever increasing early voting opportunities, lest they be prohibited from later modifying their election procedures in response to changing circumstances.”

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District-Court Nominees in Blue States

The contentious exchange yesterday between Senator Josh Hawley and district-court nominee Michael Bogren over Bogren’s alleged anti-religious bigotry has many people wondering how President Trump ever nominated Bogren in the first place. I have a couple of observations on the matter:

1. The Senate Judiciary Committee’s blue-slip policy remains in full force for district-court nominees. That means that home-state senators have an effective veto over district-court nominees. In blue states (which I will define here to mean states with two Democratic senators) and in purple states (states with one Democratic senator), the White House is therefore forced to strike deals with Democratic senators if it wants to get district-court nominees confirmed. It’s a safe bet that Bogren’s nomination was part of some broader deal.

You don’t have to look hard to find plenty of examples of district-court nominees who are essentially Democratic picks.

Some folks might decry such deals. The soundness of any deal depends on the details, which often won’t be known. Have in mind that a deal might also include blue-slip approval by Democratic senators of appellate-court nominees. While such approval is no longer necessary under the demoted blue-slip policy for appellate nominees, it can still expedite the process. (Plus, it might well have been necessary at the time some deals were struck.)

2. With all respect for Senator Hawley, I am less enamored than others are of his criticism of Bogren.

For starters, from my review of the exchange, Bogren was making exactly the point of principle that I have made: To argue that a principle that applies to A also applies to B is not to “compare” A and B or to assert that they are equivalent.

Further, Bogren made it clear that he was advancing legal arguments on behalf of his client, not expressing his personal views. (Hawley seems to have understood the exchange otherwise.) Bogren’s arguments strike me as exactly what you’d expect from someone representing his client.

Do conservatives really want to embrace the general proposition that arguments that a lawyer makes on behalf of a client should, without more, be held against the lawyer? That’s a proposition that, apart from being unsound, could redound to the detriment of conservative nominees who have defended religious liberty or pro-life legislation in unpopular contexts.

Law & the Courts

This Day in Liberal Judicial Activism—May 23

1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

2016—In Planned Parenthood of Greater Ohio v. Hodges, federal district judge Michael R. Barrett (a Bush 43 appointee) grants Planned Parenthood affiliates in Ohio a temporary restraining order against an Ohio law that directs the state department of health to “ensure” that funds it receives through six programs not be used to perform or promote nontherapeutic abortions or to contract with any entity that performs or promotes such abortions. Overlooking that the state law provides two separate and independent bases for the state department of health not to fund the Planned Parenthood affiliates, Barrett fails to respect longstanding Supreme Court precedents holding that there is no constitutional right to government funding of the performance of abortions.

In 2019, the en banc Sixth Circuit will rule that the Ohio law is constitutionally permissible.

2018—Federal district judge Naomi Reice Buchwald rules (in Knight First Amendment Institute v. Trump) that President Trump’s Twitter account is a “designated public forum” and that the First Amendment therefore bars him from blocking individuals in response to the political views they express. (The appeal of Buchwald’s ruling is pending in the Second Circuit.)

Law & the Courts

Judges Should Decide Cases on the Law, Not Personal Views

A new script about judicial nominations is circulating among Senate Democrats and their left-wing grassroots and media allies. They claim that President Trump is nominating, and Senate Republicans are confirming, judges in order to impose a political agenda defined by the personal views of his nominees. This argument rests on the very dangerous notion that judges decide cases based on their personal views and therefor only individuals holding certain personal views are acceptable for the federal bench.

Case in point: The coordinated attack on the nomination of Wendy Vitter to the U.S. District Court for the Eastern District of Louisiana. A letter from left-wing groups last year opposing the nomination quoted Vitter saying at a 2013 rally that Planned Parenthood “kill[s] over 150,000 females every year.” This was, the letter said, an “extreme” view that means Vitter cannot be a “fair and impartial arbiter of women’s health issues.”

On May 21, 2019, Senate majority whip Richard Durbin (D-Ill.) continued the mantra, claiming that Vitter “blamed Planned Parenthood for deaths” and said that “Planned Parenthood kills 150,000 women a year.”

Was Durbin suggesting that Planned Parenthood doesn’t cause deaths? Merriam Webster defines “abortion” as “the termination of a pregnancy after, accompanied by, resulting in, or closely followed by the death of the embryo or fetus.” The Free Dictionary defines it as “induced termination of a pregnancy with destruction of the embryo or fetus.” What part of this does Durbin not understand?

Let’s put aside Durbin’s subtle shift from what Vitter actually said (“females”) to what she didn’t say (“women”). Is he disputing that Planned Parenthood is responsible for aborting 150,000 females a year? According to its own annual reports, Planned Parenthood performs about 328,000 abortions per year. The National Center for Health Statistics says that 49 percent of babies born are female. Do the math.

Even worse (if that’s’ possible) is the real strategy behind these attacks. After all, what difference does it make what a nominee’s personal views are on this or that issue? Why would a Judiciary Committee member ask a nominee to the U.S. Court of Appeals whether she believes homosexuality is a sin? Why would another member criticize a district court nominee’s membership in a Catholic service organization? Why would the committee’s top Democrat tell an appeals court nominee that “the dogma lives loudly in you”?

Because the Left believes that judges decide cases based on their personal views. Remember when former Sen. Barack Obama (D-Ill.) opposed the nomination of Chief Justice John Roberts in 2005? He said that judges should decide cases based on their “deepest values,” “core concerns,” “broader perspective on how the world works,” and the “depth and breadth of their empathy.”

In their letter opposing Vitter, those left-wing groups characterized judges as the “arbiters” of “issues.” Well, if that’s what you believe judges do, and if you believe that judges should do their arbitration based their personal empathy, you would want to know about a nominee’s values, concerns, perspectives, and empathy. You would want to know another basis Obama identified for judicial decisions: “what is in the judge’s heart.”

This is why liberal senators and groups ask about nominees’ personal views, and even their religious views. And it is a radical rejection of how America’s founders designed our system of government in general, and the judiciary in particular. The notion that judges use their personal views rather than the law to decide cases is the opposite of, in the phrase found in the Massachusetts Constitution, “a government of laws, and not of men.” Whether judges should have this much power, not their personal or religious views, should be the focus of debates over judicial nominees.

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Death, Taxes, and Campaign-Finance Restrictions

In an en banc ruling yesterday in Libertarian National Committee v. FEC, the D.C. Circuit rejected First Amendment challenges to the Federal Election Commission’s application of political-contribution limits to a bequest of $235,000 made by a deceased donor, Joseph Shaber, in his will. The decision was by a vote of seven to three, along ideological lines, though the dissenters differed on their objections to the majority’s ruling. (The case was argued before Neomi Rao joined the court, and she did not take part in the decision.)

In his dissent, Judge Gregory Katsas addresses how the challenged contribution limits apply to “three nested categories” of contributions (from broadest to narrowest): bequests generally, “uncoordinated” bequests, and Shaber’s request. On an admittedly very quick review, I’m inclined to think that the limits fail the Supreme Court’s First Amendment tests at least as to the narrowest of these categories.

As Katsas explains, the only legitimate government interest served by the limits on political contributions is the prevention of quid pro quo corruption and of the appearance of such corruption. But Shaber never even informed the Libertarian National Committee of his intended bequest. He attached no conditions or requests to his bequest. He received nothing in exchange for his bequest. And, apart from modest gifts to the LNC over a period of 24 years (averaging less than $150 per year), he had no other relationship with the LNC. So how could anyone be concerned that Shaber’s bequest might involve quid pro quo corruption?

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Liberal About-Face on Overruling Precedent

Just a week ago, legal reporters were busy trumpeting Justice Breyer’s dissent in Franchise Tax Board v. Hyatt. The legal issue in that case was a state’s sovereign immunity from a lawsuit filed in another state. Even though the case had nothing to do with abortion, Breyer, joined by his three liberal colleagues, used the majority’s overruling of a 1979 precedent, Nevada v. Hall, as the occasion to sound alarms that the Court might overrule Roe v. Wade and Planned Parenthood v. Casey (as it certainly should do). In order to defend Roe and Casey, Breyer offered a paean to the importance of stare decisis:

Perhaps the majority believes that there has been insufficient reliance on Hall to justify preserving it. But any such belief would ignore an important feature of reliance. The people of this Nation rely upon stability in the law. Legal stability allows lawyers to give clients sound advice and allows ordinary citizens to plan their lives. Each time the Court overrules a case, the Court produces increased uncertainty. To overrule a sound decision like Hall is to encourage litigants to seek to overrule other cases; it is to make it more difficult for lawyers to refrain from challenging settled law; and it is to cause the public to become increasingly uncertain about which cases the Court will overrule and which cases are here to stay.

I understand that judges, including Justices of this Court, may decide cases wrongly. I also understand that later-appointed judges may come to believe that earlier-appointed judges made just such an error. And I understand that, because opportunities to correct old errors are rare, judges may be tempted to seize every opportunity to overrule cases they believe to have been wrongly decided. But the law can retain the necessary stability only if this Court resists that temptation, overruling prior precedent only when the circumstances demand it.

This past Monday, the same four liberal justices were suddenly singing a very different tune. In her majority opinion in Herrera v. Wyoming—a case concerning a tribe’s hunting rights under a treaty from 1868—Justice Sotomayor, joined by her three liberal colleagues and Justice Gorsuch, did not hesitate to overrule a precedent from 1896, Ward v. Race Horse. The Race Horse decision, the majority concluded, could not be reconciled with the Court’s 1999 decision in Minnesota v. Mille Lacs Band of Chippewa Indians:

[Although the decision in Mille Lacs did not explicitly say that it was overruling the alternative ground in Race Horse, it is impossible to harmonize Mille Lacs’ analysis with the Court’s prior reasoning in Race Horse.

We thus formalize what is evident in Mille Lacs itself. While Race Horse “was not expressly overruled” in Mille Lacs, “it must be regarded as retaining no vitality” after that decision. To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. [Citation omitted.]

So much for the people’s general “rel[iance] upon stability in the law.” So much for the “increased uncertainty” that every overruling of a case produces. So much for “overruling prior precedent only when the circumstances demand it.”

I haven’t studied the legal questions in Hyatt and Herrera and therefore take no position on who got them right. I further will assume arguendo that there are ample grounds for the liberal justices to believe that Hyatt shouldn’t have overruled Hall and that Herrera properly overruled Race Horse. My narrow point is that Herrera exposes how overblown Breyer’s stare decisis rhetoric in Hyatt is.

On the bright side, I suppose that the liberal justices have charted a two-step course for the overruling of Roe and Casey that they won’t object to. The first step is a decision—let’s call it, say, Box v. Planned Parenthood—that doesn’t explicitly overrule those cases but that is in tension with them. In a second decision, the Court can then write:

Although the decision in Box did not explicitly say that it was overruling Roe and Casey, it is impossible to harmonize Box’s analysis with the Court’s prior reasoning in Roe and Casey.

We thus formalize what is evident in Box itself. While Roe and Casey were not expressly overruled in Box, they must be regarded as retaining no vitality after that decision. To avoid any future confusion, we make clear today that Roe and Casey are repudiated.

Law & the Courts

This Day in Liberal Judicial Activism—May 22

(Pixabay)

1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

2015—First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”

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Certiorari Petition Challenges Standing of Abortion Providers

As you might recall, in early February the Supreme Court, by a vote of 5 to 4, granted the request of abortion providers to block a Louisiana law on hospital admitting privileges from taking effect until the Court rules on their petition for certiorari seeking review of the Fifth Circuit decision below. The abortion providers have now filed their certiorari petition (in Gee v. June Medical Services). With the briefing schedule having been extended over the summer, the Court will decide no earlier than October whether to grant the petition.

The abortion providers in this case might come to regret what they are asking for.

I’m very pleased to see that the state of Louisiana has filed a conditional cross-petition for certiorari that challenges the widespread lazy assumption that abortion providers have “third-party standing” to represent their patients’ interests. As the cross-petition explains, this assumption that benefits abortion providers—and that generates lots of abortion litigation—is an aberration from the third-party standing rules that apply to everyone else.

Specifically, the ordinary rule governing third-party standing is that (1) the party seeking to establish third-party standing must have a close relationship with the person who possesses the right, and (2) there must be a hindrance to that person’s ability to protect her own interest.

As to the first element: In this particular case, Louisiana explains, the doctor-patient relationship, far from being “close,” is “shallow, transitory, and, as to the issues in this case, rife with conflicts of interest”: “Plaintiffs oppose a health regulation intended to provide patients with a protection that Plaintiffs would not otherwise provide, against a factual backdrop showing that such protections matter.” Indeed, the clinic in this case “has a history of serious regulatory violations which the [Fifth Circuit] panel characterized as ‘horrifying.’” (See pp. 11-13 for more details.) The conflict of interest, Louisiana argues, should disqualify the plaintiff abortion providers from asserting third-party standing.

On the second element: The “whole history of constitutional litigation over abortion shows that women can and do assert their own alleged rights in court.”

(The abortion providers, of course, might well have their own rights to defend, but they get a huge benefit in litigation by invoking the rights of their patients.)

Louisiana’s cross-petition is conditional in that Louisiana is asking the Court to address this issue of third-party standing only if grants the abortion providers’ petition. I’m pleased to see that the signatories on the cross-petition include experienced Supreme Court practitioners Gene C. Schaerr and Erik S. Jaffe as well as Elizabeth B. Murrill, Louisiana’s excellent solicitor general.

If the Court were to grant the cross-petition and rule against the abortion providers on third-party standing, it could eliminate much of the abortion litigation that besets the federal courts.

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Congrats, Dan Collins!

I am especially delighted to report that the Senate has just confirmed President Trump’s nomination of Daniel P. Collins to the Ninth Circuit.

Dan and I have been good friends since we clerked together for Justice Scalia during the Court’s October 1991 term. In recent years, Dan authored two outstanding amicus briefs on behalf of the Ethics and Public Policy Center—the think tank I head—in the Hobby Lobby and Little Sisters of the Poor/Zubik challenges to the Obama administration’s HHS contraceptive mandate.

Dan is a man of exceptional integrity and intelligence, and I am confident that he will be a great addition to the Ninth Circuit.

When Kenneth Lee and Dan Collins fill their seats, the Ninth Circuit will have 16 Democratic appointees and 11 Republican appointees. When President Trump was inaugurated, the imbalance was 19 D vs. 6 R. Beyond numbers, the fact that Lee and Collins are filling the seats held for decades by arch-activists Stephen Reinhardt and Harry Pregerson, respectively, dramatically signals the stark improvements underway.

Daniel Bress, also a former Scalia clerk, has been nominated to one of the two remaining vacancies and will have his confirmation hearing tomorrow. The other vacancy, to the putative Oregon seat to which Ryan Bounds had previously been nominated, awaits a new nominee.

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Judicial-Nominations Update

(Carlos Jasso/Reuters)

Last week the Senate voted to confirm Ken Lee (Ninth Circuit) — the 40th circuit court nominee confirmed since Inauguration Day — along with two other district court nominees.

And more confirmations are expected this week. Senate Majority Leader McConnell filed for cloture to end debate on the nomination of Dan Collins, one of President Trump’s currently pending nominees to the Ninth Circuit. McConnell also filed for cloture on four other district court nominees.

On Wednesday, the Senate Judiciary Committee will hold a hearing on Dan Bress, another of President Trump’s pending nominees to the Ninth Circuit.

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

Current and known future vacancies:  157

Courts of Appeals:  7

District/Specialty Courts*: 150

Pending nominees for current and known future vacancies:  60

Courts of Appeals: 3

District/Specialty Courts*:  57

* 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
Dan Bress (9th) 2/6/2019 103 No 5/22/2019
Peter Phipps (3rd) 5/13/2019 7 No Not yet scheduled

 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
Dan Collins (9th) 11/13/2018 188 4/4/2019

 Nominees Awaiting Floor Votes:37

Courts of Appeals: 1

District/Specialty Courts: 36

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 3
  • # of pending nominees originally nominated > 400 days ago: 9
  • # of pending nominees originally nominated > 300 days ago: 22

Nominees Confirmed by the Senate during the 116th Congress: 22

Supreme Court: 0

Courts of Appeals: 10

District/Specialty Courts: 12

Nominees Confirmed by the Senate since Inauguration Day: 107

Supreme Court: 2

Courts of Appeals: 40

District/Specialty Courts: 65

Law & the Courts

This Day in Liberal Judicial Activism—May 20

(Shutterstock)

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”

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