Law & the Courts

This Day in Liberal Judicial Activism—December 28

2005—“Allah” yes, “Christ” no. Having already enjoined the Speaker of Indiana’s House of Representatives from permitting “sectarian” prayers to be offered as part of that body’s official proceedings, federal district judge David Hamilton draws a curious line between “sectarian” and “non-sectarian” prayers. Whereas prayers that “use Christ’s name or title” are sectarian, Hamilton says that it’s presumptively not sectarian for a Muslim imam to offer a prayer to “Allah.”

In March 2009, Hamilton’s politically correct favoritism of Islam over Christianity in the public square helps make him President Obama’s first nominee to a federal appellate slot (on the Seventh Circuit).

Law & the Courts

This Day in Liberal Judicial Activism—December 27

H. Lee Sarokin

1988—In Blum v. Witco Chemical Corp., federal district judge H. Lee Sarokin reconsiders whether to enhance an attorney’s fee award by a multiplier to compensate plaintiffs’ attorneys for the risk they had undertaken in handling the case on a contingency-fee basis. The Third Circuit had rejected Sarokin’s previous adoption of a 20% enhancement and had provided him extensive instructions on the daunting task of making sense of Justice O’Connor’s controlling concurring opinion in an intervening Supreme Court case on contingency enhancement. (Several years later, the Supreme Court, by a vote of 6 to 3, will conclude that O’Connor’s approach cannot “intelligibly be applied,” as it rules that contingency enhancements are never permissible.)

Sarokin complains that the “Supreme Court has sent a Christmas gift to this court delivered via the Third Circuit” (the Third Circuit decision was actually rendered in early September) and that “the instructions are so confusing and inconsistent that this court has been unable to put the ‘gift’ together.” He states that he “fears” that the Supreme Court and Third Circuit “have designed an erector set from which no attorney will ever be able to build a valid claim for a contingency enhancement.” “Reading between the lines” of the higher-court opinions, he states that “one may conclude that multipliers or other enhancers are so disfavored as to be virtually non-existent.” But, stating his own view that “enhancers should be the rule and not the exception,” Sarokin then somehow proceeds to award a 50% enhancement—2-1/2 times higher than his original multiplier.

On review, the Third Circuit disallows the multiplier. In her unanimous panel opinion, Judge Sloviter (a Carter appointee, as it happens) sets forth what could be an appropriate epitaph for Sarokin’s entire judicial career: “the district court, without concealing its disapproval of both the Supreme Court’s decision and ours, proceeded in accordance with its own views.” Sloviter proceeds to document how Sarokin “applied the incorrect legal standard” in “at least four respects essential to [his] decision.”

Law & the Courts

This Day in Liberal Judicial Activism—December 26

2018—“What nonsense!” protests Judge Diarmuid O’Scannlain in his withering critique of the Ninth Circuit panel decision in Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District. In ruling that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause, the panel concluded that school-board meetings are not legislative in nature and that the Supreme Court’s rulings on legislative prayer therefore did not apply. But, as O’Scannlain complains, the panel “bizarrely transforms the Board meetings into a ‘school setting’” and implausibly maintains that any students who choose to attend a board meeting are somehow “under the control of public-school authorities.”

O’Scannlain issues his opinion in protest against the Ninth Circuit’s refusal to grant en banc rehearing of the panel ruling. His opinion is joined by seven other judges, including Clinton appointee Johnnie Rawlinson.

Law & the Courts

This Day in Liberal Judicial Activism—December 25


1987—As a result of a Seventh Circuit ruling (in American Jewish Congress v. City of Chicago), the city of Chicago no longer displays a nativity scene in the lobby of the Chicago City-County building. In dissent, Judge Easterbrook laments the multi-factored balancing test established in Lynch v. Donnelly, where the Supreme Court permitted a nativity scene as part of a city’s Christmas display that also included “a Santa Claus house, reindeer pulling Santa’s sleigh, candy-striped poles, a Christmas tree, carolers, cutout figures representing such characters as a clown, an elephant, and a teddy bear, hundreds of colored lights, [and] a large banner that reads ‘SEASONS GREETINGS’. As Easterbrook puts it:

“It is discomfiting to think that our fundamental charter of government distinguishes between painted and white figures—a subject the parties have debated—and governs the interaction of elements of a display, thus requiring scrutiny more commonly associated with interior decorators than with the judiciary. When everything matters, when nothing is dispositive, when we must juggle incommensurable factors, a judge can do little but announce his gestalt.”

1989—Thanks to the Supreme Court’s jumbled ruling months earlier in Allegheny County v. Greater Pittsburgh ACLU, the city of Pittsburgh can display a Hanukkah menorah next to a Christmas tree but can’t display a nativity scene. The Court’s own summary of its lineup signals the clarity that it provides:

“BLACKMUN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts III-A, IV, and V, in which BRENNAN, MARSHALL, STEVENS, and O’CONNOR, JJ., joined, an opinion with respect to Parts I and II, in which STEVENS and O’CONNOR, JJ., joined, an opinion with respect to Part III-B, in which STEVENS, J., joined, an opinion with respect to Part VII, in which O’CONNOR, J., joined, and an opinion with respect to Part VI. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, in Part II of which BRENNAN and STEVENS, JJ., joined.. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL and STEVENS, JJ., joined. STEVENS, J., filed an opinion concurring in part and dissenting in part, in which BRENNAN and MARSHALL, JJ., joined. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C. J., and WHITE and SCALIA, JJ., joined.” Got that?

1998—For the fourth Christmas in a row, Jersey City is barred by a district-court order from displaying on City Hall grounds a menorah and a nativity scene, this time as part of a proposed display that would also include a Christmas tree, large plastic figures of Santa Claus and Frosty the Snowman, a red sled, Kwanzaa symbols on the tree, and signs stating that the display was one of a series of displays put up by the city throughout the year to celebrate its residents’ cultural and ethnic diversity. Less than two months later, a divided panel of the Third Circuit, in an opinion by Judge Samuel Alito, will rule that the display is constitutionally permissible.

Law & the Courts

McConnell ‘Did Away With Blue Slips’? Nope

You can’t understand the judicial-confirmation process if you don’t understand the rules governing the process, so it’s disappointing to see this otherwise informative Washington Post article yesterday assert that Senate majority leader Mitch McConnell “did away with ‘blue slips,’ which allowed senators to contest judicial nominees from their home states.”

The largest error in this assertion is the failure to distinguish between appellate and district nominations. In late 2017, then-Senate Judiciary Committee chairman Chuck Grassley (not McConnell) demoted the blue slip for appellate nominations: No longer would home-state senators be able to veto an appellate nominee on ideological grounds. Instead, the blue-slip privilege would operate only to ensure that the White House had adequately consulted with home-state senators about the nomination. As Grassley put it, he was “restoring the traditional policy and practice of the vast majority of my predecessors over the past 100 years.” (By Ian Millhiser’s account in Vox account, it was Democratic senator Pat Leahy, Judiciary Committee chairman from 2007 through 2014, who elevated the blue slip to a veto, in a departure from earlier practice.) New Judiciary Committee chairman Lindsey Graham has maintained that blue-slip policy.

By contrast, the blue slip for district nominees remains in full force: it gives a veto to home-state senators. That basic reality is essential to understanding why, for example, there are dozens of longstanding district-court vacancies without any nominees; why Trump has re-nominated and appointed various of President Obama’s judicial nominees as well as other nominees with decidedly liberal records; and why more than two dozen Republican senators last week voted against two of Trump’s district nominees.

While I’m at it, I’ll also note that the article’s assertion in its opening sentence that Trump “has remade the federal judiciary, ensuring a conservative tilt for decades” (my emphasis), is undermined by the data the article presents. Trump is off to an excellent start. But appointing one in four appellate judges doesn’t ensure anything for decades, and the fact that “[t]wo-thirds of the 50 circuit court judge slots filled with Trump appointees were previously held by other Republican-appointed judges” highlights that the gains so far, while important, are incremental, not transformational.

Law & the Courts

Law Professors Say the Darnedest Things—Part 15,312

This Politico article on how President Trump’s appointments have changed the composition of the Ninth Circuit presents example after example of how that court “has been the go-to venue for activist state attorneys eager to freeze Trump policies on health care, immigration, and other social issues.” That, of course, is consistent with the decades-long reputation that the Ninth Circuit has earned as a bastion of liberal judicial activism—of judges in the mold of the late Stephen Reinhardt who override democratic enactments in pursuit of their own vision of the good.

So it was very amusing to find this passage near the end of the article:

“The asymmetry [in temperament] is what causes the problem,” said Jon Michaels, a UCLA law professor. “We have a quite forceful right flank, buttressed by a left flank that prizes judicial humility and judicial modesty.” [Emphasis added; brackets in original.]

Ah, yes, the “left flank” of the Ninth Circuit “prizes judicial humility and judicial modesty”!?! Reinhardt himself, who boasted that the Supreme Court “can’t catch them all”—that is, couldn’t reverse all of his mischief—and who celebrated the “expansive and humanitarian philosophy of the Warren/Brennan court,” would have scorned and ridiculed the proposition. And while they are less outspoken than Reinhardt was, the ten or so judges on the Ninth Circuit who were steadfast allies of his likewise can’t plausibly be depicted as champions of “judicial humility and judicial modesty.”

If I’m understanding it correctly, Professor Michaels’s claim that the Ninth Circuit has “a quite forceful right flank” means that its conservative judges supposedly have demonstrated a willingness to override democratic enactments in pursuit of a conservative agenda. Hmmm. I have no idea what Michaels might have in mind. The examples that the article provides of the new conservative influence on the Ninth Circuit involve deferring to the democratic processes, not overriding it. To be sure, I do not dispute the prospect that there might be some areas—religious liberty, racial preferences, and the Second Amendment are some possible examples—in which conservative Ninth Circuit judges will, applying Supreme Court precedent, override democratic enactments. But the idea that a broad pattern already exists, and that the left of the Ninth Circuit appears humble and modest by comparison, strikes me as beyond baseless.

Similarly, the article quotes Chris Kang of Demand Justice as claiming that “Republicans politicize the judiciary so they can accomplish policy goals that they wouldn’t be able to do through the democratically elected branches of government.” But, again, as the article shows, what the Left really objects to is that the conservative judges on the Ninth Circuit will be far more likely to defer to the “democratically elected branches of government.”

(The article, by the way, wrongly states that the Senate has confirmed nine Trump nominees to the Ninth Circuit; the correct number is ten. It also misidentifies the circuits that Trump has flipped to a majority of Republican appointees; those circuits are the Second, Third, and Eleventh, not the First and Eleventh.)

Law & the Courts

This Day in Liberal Judicial Activism—December 23

1996—In Coalition for Economic Equity v. Wilson, federal district judge Thelton Henderson issues a preliminary injunction barring California officials “from implementing or enforcing Proposition 209 insofar as said amendment to the Constitution of the State of California purports to prohibit or affect affirmative action programs in public employment, public education or public contracting.”

Adopted by California voters in the November 1996 election, Proposition 209 provides that the state “shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” Among other things, Henderson rules that the challengers to Proposition 209 “have demonstrated a probability of success on their claim that Proposition 209 violates the Fourteenth Amendment’s equal protection guarantee to full participation in the political life of the community.”

But, as a unanimous Ninth Circuit panel (in an opinion by Judge Diarmuid O’Scannlain) will observe months later in reversing Henderson:

“A denial of equal protection entails, at a minimum, a classification that treats individuals unequally.… Impediments to preferential treatment do not deny equal protection.… That the Constitution permits the rare race-based or gender-based preference hardly implies that the state cannot ban them altogether.”

Law & the Courts

Some Observations on This Week’s Judicial Confirmations

On Wednesday and Thursday, the Senate confirmed 13 of President Trump’s district-court nominations. A few quick comments:

1. The Senate has now confirmed 133 of Trump’s district-court nominations. Over President Obama’s first three years, the Senate confirmed 97 of his district-court nominations.

2. A remarkable 80 of the 133 confirmations have occurred since April, when majority leader Mitch McConnell led the successful effort to adopt a rule reducing the (never or rarely used) hours of post-cloture debate on district-court nominees from thirty to two.

3. To reiterate a point I’ve made before: The Senate Judiciary Committee’s blue-slip policy remains in full force on district-court nominations and thus confers an effective veto on home-state senators, irrespective of their political party.

Several of the confirmed nominations illustrate how home-state Democrats have been able to use their blue-slip leverage: Two of the nominees—Robert J. Colville (W.D. Pa.) and Gary Richard Brown (E.D.N.Y.)—had in fact been nominees of President Obama, and a third—Lewis J. Liman—has a very distinguished liberal pedigree. (Colville had 27 Republicans vote against his nomination, and Liman had 29 vote against his.) All three were evidently part of broader deals that the White House struck with home-state senators: Brown and Liman were two of seven district-court nominees from New York announced on the same day, and Colville’s nomination was announced along with another Pennsylvania nominee.

For what it’s worth, I think that reasonable cases can be made both for and against the muscular blue-slip policy on district-court nominations. The policy survives—and, I think, will continue to survive—for a simple reason that wins strong bipartisan support: no senator wants to have his political enemy preside over his corruption trial.

Law & the Courts

This Day in Liberal Judicial Activism—December 20


1999—The so-called Common Benefits Clause of the Vermont constitution—which actually bears the title “Government for the people; they may change it”—declares that “government is, or ought to be, instituted for the common benefit, protection, and security of the people, nation, or community, and not for the particular emolument or advantage of any single person, family, or set of persons, who are a part only of that community; and that the community hath an indubitable, unalienable, and indefeasible right, to reform or alter government, in such manner as shall be, by that community, judged most conducive to the public weal.”

In Baker v. State, the Vermont supreme court somehow finds in this declaration a requirement that the benefits and protections of marriage be extended to same-sex couples. So much for the “indubitable, unalienable, and indefeasible right” of the people of the Vermont to reform or alter—or to maintain—their government’s marriage laws “in such manner as shall be, by [them], judged most conducive to the public weal.”

The only dissenter complains that the majority did not go far enough—that it shouldn’t have left the legislature the option of creating an alternative statutory scheme parallel to marriage but should instead have required that marriage licenses be made available to same-sex couples.

2013—On the bench for barely a year, federal district judge Robert James Shelby refuses even to stay pending appeal his ruling that Utah’s marriage laws violate the federal Constitution. Shelby’s effort to sow chaos and thus alter the terrain while the appeal of his ruling is underway succeeds until the Supreme Court, more than two weeks later, finally blocks his ruling pending the completion of the appeals process.

2017—Ninth Circuit judge Kim McLane Wardlaw endures yet another summary reversal by the Supreme Court. Barely a month earlier (in In re United States), Wardlaw had co-authored a ruling that would have required the government to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrivals (DACA) policy. Without a recorded dissent, the Supreme Court vacates that order and instead directs a series of steps for the lower courts to follow to limit the scope of the government’s disclosure.

Law & the Courts

Filling the Judicial Confirmation Stocking


The Senate has completed its confirmation work for the year and has a lot to show for the effort. With the final votes today, the Senate has confirmed 102 judges for the year, a significant achievement made more so by relentless Democratic resistance.

Let’s first put the confirmation results in some statistical perspective. From 1981 through last year, the Senate confirmed an average of 45 judges, or 5.5 percent of the judiciary, per year. This year’s total is more than twice the annual average and constitutes 11.9 percent of the judiciary. It’s the second-highest confirmation total in a single year in American history.

Those 102 confirmations include 20 to the U.S. Court of Appeals, the third-highest annual total in history. President Donald Trump has appointed 50 appeals court judges in his first three years, compared to 55 appointed by President Barack Obama — in eight years. And this is only the second time in American history that the Senate has confirmed double-digit appeals court nominations three years in a row. The only downside is that only one current appeals court vacancy exists anywhere in the country right now, the fewest in more than four decades.

Now let’s put the confirmation results in political perspective. No president has faced such strong, sustained confirmation headwinds in trying to fill judicial vacancies. One Democratic resistance tactic is to force the Senate to take a separate vote to invoke cloture, or end debate, before a final confirmation vote. When the cloture rule required 60 votes, senators who lacked the majority of votes to defeat a nomination outright could still prevent confirmation by preventing a confirmation vote. In November 2013, however, Democrats lowered that threshold to end debate from 60 votes to a simple majority — the same as for confirmation. Since then, cloture votes can only be used to delay, but not to defeat, nominations.

Democrats have used this tactic on 81 percent of Trump’s confirmed judicial nominations overall, 93 times this year alone. Compare that to just 4 percent during Obama’s first three years and an average of less than 2 percent for the same period under the previous five presidents. Democrats force these unnecessary cloture votes because they can, adding days to the time for confirming nominations, even those with no opposition.

Speaking of opposition, the average Democrat has voted against 48 percent of Trump judicial nominees. That means each Democrat, on average, has voted NO 82 times. Before you think this is ordinary partisanship, the average Republican voted against less than 10 percent of Obama nominees. In fact, since the turn of the 20th century, senators of one party voted against an average of 1.8 percent of judicial nominations by a president of the other party. What’s going on today is, by orders of magnitude, far beyond anything the confirmation process has ever seen.

Ten Senate Democrats serving today were in the Senate during the first three years (2001–03) of the previous Republican administration. This group includes Minority Leader Chuck Schumer (D., N.Y.), Minority Whip Dick Durbin (D., Ill.), and Judiciary Committee Ranking Member Dianne Feinstein (D., Calif.). They voted again an average of just three percent of Bush nominees, but have voted against an average of 51 percent of Trump nominees.

The 102 confirmations this year is eclipsed only by the 135 confirmed in 1979. It is a different confirmation world today. In October 1978, Congress created 150 new judgeships, the largest judiciary expansion in history. President Jimmy Carter’s party had a 58–41 Senate majority.

The confirmation train ran so smoothly that Judiciary Committee Chairman Ted Kennedy (D., Mass.) considered seven appeals court nominations in a single hearing and the Senate confirmed more than 20 judicial nominations on a single day at least twice in 1979. The Senate confirmed more than 97 percent of nominations without even a recorded vote and took no cloture votes. Not a single one.

That was then, this is Trump. He has appointed less than 5 percent of all life-tenured judges in American history, but those judges have received more than 48 percent of all opposition votes. Trump’s judges have received nearly three times as many no votes as all the judges confirmed in the entire 20th century combined. The average number of votes against confirmation of Trump’s judges is nearly 17 times higher than for the previous five presidents at this point.

You get the idea. Under any circumstances, the judicial confirmation total this year is a monumental achievement. Judicial vacancies have been cut nearly in half in 2019, allowing the judicial branch to more effectively do its work. This could have happened, however, only with leadership that is more relentless than the resistance.

Editor’s Note: This post has been emended to note that Trump appointees have received more than 48 percent, not 22 percent, of opposition votes.

Law & the Courts

Gross Misconduct by Texas Commission on Judicial Conduct

Under Texas law, a justice of the peace is authorized to officiate at weddings but is not required to do so. Since August 2016, Dianne Hensley, a justice of the peace in Waco, has officiated at weddings for opposite-sex couples but has declined to officiate at weddings for same-sex couples. Instead, she has politely referred same-sex couples to nearby willing officiants. Hensley has publicly explained that she is acting according to her “sincerely held religious belief as a Christian.”

In November, the Texas Commission on Judicial Conduct issued a “public warning” to Hensley. Her refusal to perform same-sex weddings, the Commission concluded, “cast[s] doubt on her capacity to act impartially to persons appearing before her as a judge due to the person’s sexual orientation.” That public warning threatens Hensley with the prospect of more severe discipline, including removal from office, if she continues to decline to officiate at same-sex weddings.

On Tuesday, Judge Hensley sued the Commission for violating her rights under the Texas Religious Freedom Restoration Act.

The Commission’s public warning to Hensley strikes me as highly defective and as a severe threat to religious freedom:

1. Justice Kennedy’s majority opinion in Obergefell v. Hodges explicitly repudiates the proposition that a person’s opposition to same-sex marriage should be deemed to reflect bias on the part of that person against gays and lesbians: “Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises.” (Those “premises” include the reality that marriage developed everywhere in human civilization as an opposite-sex union in order to increase the likelihood that children will be born and raised in stable and enduring family units by the mothers and fathers who, often unintentionally, naturally generated their very existence.)

The Commission’s conclusion rests on the very leap of logic that Justice Kennedy rejected.

Indeed, according to the lawsuit that Hensley has now filed against the Commission, far from manifesting any bias against gays and lesbians, Hensley has made significant efforts to help same-sex couples find a wedding officiant. Among other things, she provides them a list of willing officiants. One such officiant operates a walk-in wedding chapel a short walk from her courtroom, and Hensley has arranged with that officiant to give same-sex couples referred by her a discounted rate equal to her own rate.

As I observed in another post today, our judicial system operates on the presumption that judges will set aside their own likes and dislikes in deciding cases. The Commission provides no basis for depriving Hensley of that presumption.

2. As the complaint spells out, the Commission’s action violates Hensley’s rights under the Texas Religious Freedom Restoration Act. (The Commission’s public warning makes no mention of the Act, even though Judge Hensley and her lawyers cited it repeatedly when defending her actions before the Commission.) In this regard, it’s important to have in mind that Hensley does not have a duty as a justice of a peace to officiate at weddings. Rather, as the Commission acknowledges, she officiates at weddings as part of her “extra-judicial activities.” (The matter here is thus distinct from that posed by a state employee who has the job of issuing marriage licenses and who declines to issue licenses to same-sex couples.)

If the Commission can punish a judge for deciding, on religious grounds, not to officiate at same-sex weddings, then what is to stop the Commission from punishing a judge who publicly affiliates with a church or charity that embraces the perennial understanding of marriage?

3. The Commission adopts an extravagant overreading of Obergefell that conflicts with the Commission’s obligations as an instrumentality of the state of Texas.

Nothing in Obergefell dictates that anyone whom the state authorizes (but does not require) to officiate at weddings must be willing to officiate both for opposite-sex couples and same-sex couples. Indeed, if that were the law, then clergy would be compelled to officiate at same-sex marriages, as Texas law authorizes both clergy and judges to perform marriage ceremonies. Given that Texas laws continue to define marriage exclusively as the union of one man and one woman, it ought to be incumbent on Texas state actors, like the Commission, to construe Obergefell as narrowly as is fairly possible.

Judge Hensley is complying with Texas laws. It’s the Commission that is failing to do so. Let’s hope that the Texas courts promptly put a stop to the Commission’s unlawful bullying.

Law & the Courts

Will Justice Ginsburg Recuse in Trump Tax Cases?

“How has he [Donald Trump] gotten away with not turning over his tax returns?”

That was one of several remarkably indiscreet comments that Justice Ginsburg made about then-candidate Trump in a CNN interview in July 2016. Now that the Supreme Court has granted review of cases that present the question whether Trump can be compelled to disclose his tax returns (and other financial papers), shouldn’t Ginsburg recuse herself from those cases?

(I’m grateful to Josh Blackman’s post on Ginsburg’s latest astonishing indiscretions for reminding me of her comment on Trump’s tax returns.)

To be clear, I do not take (and have never taken) the position that Ginsburg’s airing of her broad animosity to Trump requires that she recuse herself generally from cases involving the president or his administration. Our judicial system operates on the presumption that judges will set aside their own likes and dislikes in deciding cases. But that presumption may well be overcome when a judge has spoken out on a specific question that he or she will be deciding. (Specifically, under 28 U.S.C. § 455—which applies to Supreme Court justices as well as lower-court federal judges—that might well mean that the judge’s “impartiality might reasonably be questioned.”)

Here, where Ginsburg has already publicly expressed her astonishment that Trump has “gotten away with not turning over his tax returns,” it seems eminently reasonable to question whether she could impartially decide whether Trump should be required to turn over his tax returns.

For what it’s worth—and it shouldn’t be a factor in Ginsburg’s own assessment of her recusal obligations—it is highly unlikely that her recusal would have any effect on how the cases are decided. Take the scenario in which Ginsburg would be providing the decisive fifth vote against Trump. Without her participating, the Court would divide 4 to 4, and the result in the cases would be the same: an affirmance of the lower-court decisions against Trump. (I’ll set aside the farfetched scenario in which Ginsburg would be providing the decisive fifth vote in favor of Trump.)

Law & the Courts

This Day in Liberal Judicial Activism—December 19

2002—On remand from a U.S. Supreme Court decision holding that Erie’s ban on public nudity does not violate the First Amendment, the Pennsylvania supreme court rules (in Pap’s A.M. v. City of Erie) that the ban’s targeting of nude dancing violates the state constitution’s guarantee of freedom of expression (which provides that “The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty”).

2008—Continuing his sabotaging of the California marriage laws that he is obligated to defend vigorously, California attorney general Jerry Brown files a brief attacking Proposition 8, the recently adopted ballot measure that amended California’s constitution to restore the state’s definition of marriage as a male-female union.

Brown offers the crackpot theory—beyond anything the opponents of Proposition 8 have argued and beyond the scope of the briefing that the supreme court invited—that the constitutional amendment effected by Proposition 8 somehow itself violates the state constitution.

Brown’s wackiness is too much even for some liberal law professors in California: one says that Brown’s argument “turns constitutional law on its head,” and another calls his position “extraordinary.”

2013—The five justices of the New Mexico supreme court unanimously rule (in Griego v. Oliver) that the New Mexico constitution requires that “same-gender couples” be allowed to marry.

2017—By a 5-4 vote, the Oklahoma supreme court holds (in Hunsucker v. Fallin) that attorneys specializing in DUI cases have “public interest standing” to challenge the state’s recently enacted Impaired Driving Elimination Act; that the Act violates the state constitution’s single-subject rule; and that one provision of the Act that authorizes the seizure and immediate destruction of the driver’s license of a driver who fails a breath test (along with simultaneous issuance of a temporary license) violates substantive due process.

In dissent, Justice Patrick Wyrick objects that the majority’s “boundless” exception to the court’s ordinary standing rules fails to meet the state constitutional standard for justiciability. Further, its permissive standing rules combine with its amorphous and malleable single-subject decisions to create “a potent one-two punch that allows the Court to judicially veto virtually any of the Legislature’s and People’s laws so long as someone files the proper papers in the clerk’s office to initiate suit.”

The majority’s substantive due process holding is also wrong, Wyrick explains, “both as a matter of process and as a matter of substance”: among other things, the majority rules on a claim that no one even argued; it contradicts its own previous ruling; it reinstates a prior scheme that has the same supposedly defective feature; and, while purporting to exercise rational-basis review, it fails to conceive of, much less address, legitimate reasons for the challenged provision.

Law & the Courts

This Day in Liberal Judicial Activism—December 18


1997Best is worst. Best v. Taylor Machine Works, that is.

In this case, the Illinois supreme court, by a vote of 5 to 1, rules unconstitutional Illinois’s 1995 tort-reform act. Among its rulings, the court holds that a $500,000 cap on non-economic damages in personal-injury cases—a cap that applies generally to all plaintiffs in such cases—violates the state constitutional ban on “special” (as opposed to general) legislation.

In twisted confusion over which branch has the authority to make law, the court also rules that the cap violates separation of powers—because it “undercuts the power, and obligation, of the judiciary to reduce excessive verdicts.” Under the “special” legislation pretense, it further strikes down the act’s abolition of the common-law doctrine of joint and several liability. And so on, and so on, for other provisions of the act.

Faulting the majority for “hoping to persuade the reader by prolixity,” dissenting justice Miller succinctly sums up the defects in the majority’s approach:

“Today’s decision represents a substantial departure from our precedent on the respective roles of the legislative and judicial branches in shaping the law of this state. Stripped to its essence, the majority’s mode of analysis simply constitutes an attempt to overrule, by judicial fiat, the considered judgment of the legislature.”


Law & the Courts

This Day in Liberal Judicial Activism—December 17

2018—In Biel v. St. James School, a divided panel of the Ninth Circuit rules that a fifth-grade teacher at a Catholic school who was charged with teaching Catholic doctrine to her students, praying with them twice daily, and taking them to Mass did not trigger the ministerial exception to generally applicable employment laws (and thus could pursue her claim that she was fired in violation of the American with Disabilities Act).

In their dissent six months later from the Ninth Circuit’s denial of rehearing en banc in the case, nine judges will fault the panel majority for adopting the “narrowest construction” of the Supreme Court’s ruling on the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012) and for “split[ting] from the consensus of our sister circuits that the employer’s ministerial function should be the key focus.”

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Our Stupid Times, Etc.

I don’t think most people who read the news are too stupid to understand the news. I think they are too dishonest. I am frankly embarrassed that we’ve found it necessary to append a note to Zachary Evans’s report on anti-Semitism to emphasize that quoting a person to illuminate his sentiments does not ... Read More

The Democrats Have Had This Primary Before

As of this writing, the Democratic presidential contest looks very fluid, with four candidates bunched up in Iowa and New Hampshire. But the sudden relevance of foreign policy, thanks to the confrontation with Iran, has made it look more and more like a two-person race between Joe Biden and Bernie ... Read More

The Democrats Have Had This Primary Before

As of this writing, the Democratic presidential contest looks very fluid, with four candidates bunched up in Iowa and New Hampshire. But the sudden relevance of foreign policy, thanks to the confrontation with Iran, has made it look more and more like a two-person race between Joe Biden and Bernie ... Read More