Law & the Courts

Judge Thapar’s Persuasive Case against Roe

(Wavebreakmedia/Getty Images)

Judge Amul Thapar has written another strong judicial opinion, this time in reaction to the Sixth Circuit’s ruling in an abortion case decided Friday. The panel opinion in Memphis Center for Reproductive Health v. Slatery struck down two Tennessee abortion restrictions — one applying when a fetal heartbeat is detected, the other when the doctor knows an abortion is sought because of race, sex, or a Down-syndrome diagnosis of a fetus. Thapar did not join the court’s opinion, instead issuing a partial dissent that took on the Supreme Court’s abortion jurisprudence head on.

Thapar acknowledged that Roe v. Wade and Planned Parenthood v. Casey compelled the outcome regarding the heartbeat provision because it applied before viability, but he asserted up front that both “Roe and Casey are wrong as a matter of constitutional text, structure, and history.” He spent the bulk of his 35-page opinion explaining why.

First, the text:

​​No one, including the Roe majority, contends that such a right exists in the text of the Articles of the Constitution. Instead, jurists and commentators point to the Bill of Rights or the Fourteenth Amendment. But you won’t find the word “abortion” (or any equivalent) there either. Indeed, many thoughtful legal scholars, including those who support abortion as a policy matter, have expressed skepticism of or outright hostility to the idea that the Constitution explicitly provides a right to abortion. The text does not bear it out. [footnote omitted]

A right can be discerned when it is “deeply rooted” in our “history, legal traditions, and practices,” but “this is a tough test to pass. And rightly so. After all, when the judiciary recognizes a new right, we take the decision away from the American people. The Roe majority claimed that a right to abortion easily clears that high hurdle. But in doing so, it rewrote history.” Of course abortion has no such historical pedigree, and the Roe majority’s reliance on “suspect sources” plagued by “historical errors” to try to establish otherwise “is just one of many reasons why historians and jurists have roundly criticized Roe’s historical foundations since the day it came down.”

Thapar buttressed his point with this gem in one of his footnotes referencing other sources that demolished Roe’s history:

I am aware that the Roe majority offered a fleet of additional historical arguments ranging from the views of the Persians and ancient Greeks on abortion to the Hippocratic Oath. But at some point, I must follow the mercy rule for the sake of both Roe and the reader. Gluttons for punishment can look elsewhere for a more thorough demolition of Roe’s historical foundations.

Not only was there no affirmative right to abortion in early America, but

almost every state and territory had in fact passed laws limiting or prohibiting abortion by the end of the nineteenth century. By contrast, the Roe majority did not provide a single example of a state that legally guaranteed an affirmative right to abortion at either the time of the Founding or during the Reconstruction Era. That silence is not just deafening. It should end the debate.

Under any test for evaluating the historical pedigree of an alleged right, the right to an abortion does not just miss the mark. It flunks out.

For good measure, Thapar took on living constitutionalism with a call for some judicial humility, quoting Edmund Burke:

I would not take the living constitutional route. Dismissing our constitutional text and history—as the Casey plurality did—is never wise. After all, we must remember that because “the private stock of reason . . . in each man is small, . . . individuals would do better to avail themselves of the general bank and capital of nations and of ages.”

He proceeded to eviscerate Casey’s hopelessly unworkable undue-burden standard:

What constitutes an “undue burden”? How about a “substantial” obstacle? What’s a large fraction? How do you calculate the denominator? What about the numerator? How do we balance a state’s interests in preventing fetal pain, safeguarding the unborn child’s life, and preserving the integrity of its medical profession with a woman’s interest in obtaining an abortion? Should we update the undue burden test as neonatal science teaches us new things? How do you know if a law prohibited a woman from obtaining an abortion or merely persuaded her to choose life? And how can we divine future consequences from pre-enforcement challenges? Each of these questions—and there are many more—layers discretion upon discretion. Put any three judges on a panel and you could get three different—and equally reasonable—answers for each question.

The undue burden test is “hopelessly unworkable in practice.” And it is unworkable because it is neither a clear rule nor a judicially manageable standard. The test has the added vice of being untethered from constitutional or statutory text. Instead, it takes judges out of our Article III role and makes us answer questions better left in the hands of legislatures. The Founders understood the danger of this. So should we. [citations omitted]

Thapar appealed to the Supreme Court to do what he as a circuit judge could not:

Only the Supreme Court can tow our jurisprudence back to the safe harbor of democratic legitimacy. . . .

Justice Holmes once remarked that “a page of history is worth a volume of logic.” The argument that the Constitution contains a right to abortion has neither. As shown above, the historical evidence is clear. The Constitution leaves decisions like this to the states. The state legislatures can do what we can’t: listen to the community, create fact-specific rules with appropriate exceptions, gather more evidence, and update their laws if things don’t work properly. And if the public is unhappy, it can fight back at the ballot box. The courts should return this choice to the American people—where it belongs. [citation omitted]

Thapar is exactly right that Roe and Casey are wrong as a “matter of constitutional text, structure, and history.” I applaud his thoughtful and well-reasoned opinion explaining just how very harmful it has been to our republic and the Court’s own integrity for the “manufacture[d] right to abortion” of Roe and Casey to move the “policy debates from the country to the courtroom.”

Kudos to him for having the courage to say out loud what most federal judges know well but dare not say.

Law & the Courts

Powerful Opinion by Judge Thapar on Illegitimacy and Unworkability of Roe/Casey Regime


On Friday, a Sixth Circuit panel majority ruled (in Memphis Center for Reproductive Health v. Slatery) that two provisions of Tennessee abortion law are constitutionally impermissible. Specifically, the majority (opinion by Judge Martha Craig Daughtrey, joined by fellow Clinton appointee Karen Nelson Moore) ruled (1) that a ban on post-heartbeat abortions imposes an “undue burden” before viability under Planned Parenthood v. Casey, and (2) that prohibiting abortion when the abortionist “knows” that the pregnant woman “is seeking the abortion because of the sex of the unborn child … because of the race of the unborn child … [or] because of a prenatal diagnosis, test, or screening indicating Down syndrome or the potential for Down syndrome in the unborn child” is impermissibly vague.

Writing separately, Judge Amul Thapar explained that Supreme Court precedent compelled him to concur in the first ruling but that the majority’s second ruling turned on “[l]aw professor hypotheticals and dreamed-up scenarios” that defy precedent and that, if applied elsewhere, would mean that “no statute could pass constitutional muster.” (See pp. 37-38, 63-70.)

More notably, while explaining that he was bound to apply the Court’s Roe/Casey regime, Thapar also powerfully expounded how the Roe/Casey framework “conflict[s] with the original understanding of the Constitution,” “cannot be justified under any modern approach to constitutional interpretation” and “has proven unworkable in practice.”

Among other things: The Roe majority “rewrote history” in trying to claim that a right to abortion has a strong historical foundation. (Pp. 42-50.) The living-constitutionalist argument for abortion ignores that abortion “remains one of the most hotly contested issues in American life,” that “‘the United States is an outlier within the international community’ when it comes to abortion,” and that “the steady march of science undermines” Roe’s agnosticism about when the life of a human being begins and Casey’s arbitrary adoption of a viability line. (Pp. 50-55.) And Casey’s “undue burden” test “has proved inherently resistant to neutral and principled application.” (Pp. 55-62.)

Here are some excerpts from Thapar’s opinion on the last point:

What legal rules and doctrines have suffered at the hand of abortion jurisprudence? Statutory interpretation, the rules of civil procedure, the standards for appellate review of legislative factfinding, and the First Amendment to name a few. [Citations omitted.]

Rather than mend the Nation’s fractures, the Casey regime’s lack of concrete guidance has generated decades of bitter litigation and widening circuit splits. Consider, for instance, the circuit split over parental notification requirements. Compare Planned Parenthood v. Camblos, 155 F.3d 352, 367 (4th Cir. 1998) (en banc), with Planned Parenthood v. Adams, 937 F.3d 973, 985–90 (7th Cir. 2019), and Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995). Or the split about laws requiring abortion providers to make certain disclosures. Compare EMW Women’s Surgical Ctr. v. Beshear, 920 F.3d 421, 430–32 (6th Cir. 2019), and Planned Parenthood v. Rounds, 686 F.3d 889, 893–906 (8th Cir. 2012), with Stuart v. Camnitz, 774 F.3d 238, 244–50 (4th Cir. 2014). Another divide has emerged over nondiscrimination provisions such as section 217. Compare Preterm[-Cleveland v. McCloud, 994 F.3d [512,] 535 [(6th Cir. 2021), with Planned Parenthood v. Comm’r of Ind. State Dep’t of Health, 888 F.3d 300, 307–10 (7th Cir. 2018). Even the question of whether states may prohibit certain types of dilation & extraction procedures—namely, the dismemberment of a still-living unborn child—has produced a circuit split. Compare Whole Woman’s Health v. Paxton, No. 17-51060, 2021 WL 3661318, at *1 (5th Cir. Aug. 18, 2021) (en banc), with W. Ala. Women’s Ctr. v. Williamson, 900 F.3d 1310, 1319 (11th Cir. 2018), and EMW Women’s Surgical Ctr., P.S.C. v. Friedlander, 960 F.3d 785, 806–07 (6th Cir. 2020). These conflicts, and others like them, highlight that an undue burden is in the eye of the beholder.

Addendum: Carrie Severino provides some other choice excerpts in this post of hers.

Law & the Courts

This Day in Liberal Judicial Activism—September 13

Then-president Donald Trump delivers a statement in the Grand Foyer at the White House in Washington, D.C., January 8, 2020. (Kevin Lamarque/Reuters)

2019—In CREW v. Trump, a divided panel of the Second Circuit reverses a district-court ruling that the plaintiffs did not have standing to pursue their claims that President Trump’s continuing business interests violated the Domestic and Foreign Emoluments Clauses of the Constitution. The panel majority rules instead that two plaintiffs operating in the hospitality industry adequately alleged that they were economic competitors of the Trump businesses and suffered harm as a result of the allegedly illegal acts, and that they therefore satisfied the competitor-standing doctrine.

In dissent, Judge John M. Walker Jr. argues that the majority’s expansive application of the competitor-standing doctrine conflicts with Supreme Court precedent.

Law & the Courts

This Day in Liberal Judicial Activism—September 12

United States Chief Justice John G. Roberts (Jim Young/Reuters)

2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins. Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

2012—In a 112-page opinion (in Hedges v. Obama), federal district judge Katherine B. Forrest permanently enjoins the United States from enforcing a provision of the 2012 National Defense Authorization Act that she reads as broadly expanding the class of persons whom the president may detain as enemy combatants and as violating the First Amendment rights of the plaintiff journalists and activists who allege that they fear being detained.

Three weeks later, a liberal panel of the Second Circuit, calling into question Forrest’s analysis, will conclude that the public interest requires a stay of the injunction pending appeal. In July 2013, another liberal panel of the Second Circuit will vacate Forrest’s injunction on the ground that the plaintiffs lack standing to challenge the provision: The plaintiffs who are American citizens lack standing because the provision expressly has no bearing on them, and the non-citizen plaintiffs lack standing because “they have not established a basis for concluding that enforcement against them is even remotely likely.”

Law & the Courts

This Day in Liberal Judicial Activism—September 11

The entrance to the New York Times Building in New York, June 29, 2021 (Brent Buterbaugh)

2017—In a New York Times interview just days after his retirement from the Seventh Circuit, Reagan appointee Richard A. Posner provides a candid description of his lawless “pragmatism”:

“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”

The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”

Law & the Courts

This Day in Liberal Judicial Activism—September 10

Former president Donald Trump speaks at the “Rally to Protect Our Elections” hosted by Turning Point Action in Phoenix, Ariz., July 24, 2021. (Gage Skidmore)

2020—In New York v. Trump, a three-judge district court enjoins the Secretary of Commerce from complying with a presidential directive to include in census data a state-by-state tabulation of the number of aliens who are not in a lawful immigration status.

 In a 6-to-3 vote three months later, the Supreme Court will vacate the district court’s order: the  case “is riddled with contingencies and speculation that impede judicial review,” and “the standing and ripeness inquiries both lead to the conclusion that judicial resolution of this dispute is premature.”

2020—Less than two months before the upcoming presidential election, federal district judge Douglas Rayes (in Arizona Democratic Party v. Hobbs) enjoins Arizona’s law that requires early voters to have signed their ballots by 7:00 p.m. on Election Day in order to have their votes counted. Rayes orders Arizona to institute a new procedure that would give voters up to five days after voting has ended to sign their ballots.

Four weeks later, a unanimous Ninth Circuit panel (with a majority of Democratic appointees) will block Rayes’s injunction from continuing in effect pending appeal.

Law & the Courts

This Day in Liberal Judicial Activism—September 9

U.S. Army 101st Airborne soldiers arrive back at Bagram base after fighting in the Shahi Kot mountains of Afghanistan, 2002. (Jim Hollander/Reuters)

1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors. In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge. Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder. At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor. The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment. (See This Day for Mar. 1.) In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”

2010—In California, federal district judge Virginia A. Phillips rules (in Log Cabin Republicans v. United States) that the Don’t Ask, Don’t Tell law governing homosexuals in the military violates substantive due process and First Amendment speech rights and that the plaintiff organization is entitled to a permanent injunction against enforcement of the law.

The Obama administration’s sabotage of Don’t Ask, Don’t Tell litigation—including then-Solicitor General Elena Kagan’s irresponsible failure to seek review of a rogue Ninth Circuit ruling that applied a higher level of scrutiny to Don’t Ask, Don’t Tell—helped set the stage for Phillips’s ruling. Indeed, Phillips states several times in her opinion (in slightly different formulations) that the Department of Justice “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.” But Phillips compounds the Obama administration’s malfeasance by misstating and misapplying the relevant standard for facial challenges.

Law & the Courts

This Day in Liberal Judicial Activism—September 8

President Ronald Reagan meets with Robert Bork in the White House, October 9, 1987. (White House Photographic Collection/Wikimedia Commons)

1987—While ten members of the American Bar Association’s judicial-evaluations committee sensibly give Supreme Court nominee Robert H. Bork the highest rating of “well qualified,” four members indulge their ideological biases and rate him “not qualified.”

The four members hide behind the cloak of anonymity, but years later they will be reported to be Jerome J. Shestack, Joan M. Hall, Samuel Williams, and John Lane.

Law & the Courts

This Day in Liberal Judicial Activism—September 7

A sign placed on the walkway to a neighborhood polling place on election day in Fort Lauderdale, Fla. ( Jillian Cain/GettyImages)

2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.

Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball.” You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court,” but the amendment “effectively strikes the state Clause from the constitutional scheme.” (Huh?? The ballot title and summary provide a far more accurate description of the amendment than the majority does.) And, the majority continues, the ballot summary supposedly never “mentioned—or even hinted at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.” (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

 2016—State superior court judge Thomas Moukawsher appoints himself czar of Connecticut’s public schools.

As this Hartford Courant article reports, Moukawsher “ordered the state to come up with a new funding formula for public schools”; “directed the state to devise clear standards for both the elementary and high school levels, including developing a graduation test”; “ordered a complete overhaul of Connecticut’s system of evaluating teachers, principals and superintendents”; and “demanded a change in the ‘irrational’ way the state funds special education services.”

Further: “Moukawsher’s mandates come with a tight deadline: The remedies he is ordering must be submitted to the court within 180 days.”

As the reporter observes, “It is unclear how the state Department of Education, the legislature and Gov. Dannel P. Malloy will come up with solutions, within six months, to complicated problems that have plagued public education in Connecticut for decades.” Yes, indeed.

Law & the Courts

This Day in Liberal Judicial Activism—September 6

Ranking Member Senator Dianne Feinstein (D., Calif.) questions Supreme Court nominee Judge Amy Coney Barrett during her confirmation hearing on Capitol Hill, in Washington, D.C., October 14, 2020. (Bonnie Cash/Pool via Reuters)

2016—Over the public dissenting votes of ten of its judges, the Ninth Circuit issues an order declining to grant rehearing en banc of a divided panel decision in Oregon Restaurant & Lodging Ass’n v. Perez.

 This case provides a powerful illustration of how liberal judges and bureaucrats will engage in tag-team tactics to override unwelcome precedent and to invent legal obligations that assist favored constituencies. In brief: The unwelcome precedent here was a 2010 Ninth Circuit ruling that held that, by its plain language, a statutory restriction on a restaurant employer’s ability to require waiters to pool tips with non-tipped employees applied only to restaurants that did not pay waiters the minimum wage. Despite this holding, the Department of Labor in 2011 issued a regulation purporting to bar employers from requiring tip pools to include non-tipped employees, even if the employer was paying the tipped employees minimum wage. And in the divided panel decision in Oregon Restaurant, notorious liberal activist Harry Pregerson ruled that the Labor Department regulation was entitled to deference under the Chevron doctrine, even though the circuit precedent from 2010 held that the plain language of the statute meant otherwise.

2017—“The dogma lives loudly within you,” proclaims Senator Dianne Feinstein to Notre Dame law professor, and Seventh Circuit nominee, Amy Coney Barrett. Feinstein’s display of anti-Catholic bigotry in this comment and other questions earns widespread condemnation, including from liberals such as Princeton president Christopher Eisgruber and Harvard law professor Noah Feldman.

Law & the Courts

This Day in Liberal Judicial Activism—September 5


1969—By a vote of 4 to 3, the California supreme court rules in People v. Belous that the exception to California’s abortion ban for abortions “necessary to preserve [the] life” of the mother is “not susceptible of a construction … that is sufficiently certain to satisfy due process requirements without improperly infringing on fundamental constitutional rights.” On that flimsy basis (which the dissenters deride as a “negation of experience and common sense”), the majority invalidates the state’s abortion law. The decisive fourth vote is provided by a justice pro tem whose appointment to the case was engineered by California chief justice Roger Traynor.

 2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated. An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.

Law & the Courts

This Day in Liberal Judicial Activism—September 4

(utah778/Getty Images)

1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds (in Haines v. Liggett) that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.

Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!” (Exclamation point in original.) Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applies and ordered the requested documents produced. Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case. The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality.

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

2014—Graham Henry’s saga of proceedings challenging his conviction for a murder in 1986 had finally seemed to come to an end when the Supreme Court denied his certiorari petition in June 2014. But in an extraordinary procedural contortion, the en banc Ninth Circuit instead votes to rehear en banc Henry’s motion to reconsider a Ninth Circuit panel’s November 2013 order denying his petition for panel rehearing.

In dissent, Judge Richard Tallman, joined by four other judges, issues an opinion with this memorable opening:

If one is remembered for the rules one breaks, then our court must be unforgettable. By taking this capital habeas case en banc now—after certiorari has been denied by the Supreme Court and well after the deadline for en banc review by our court has passed—we violate the Federal Rules of Appellate Procedure and our own General Orders. We also ignore recent Supreme Court authority that has reversed us for doing the same thing in the past. No circuit is as routinely reversed for just this type of behavior. We ought to know better.

In December, the Supreme Court will take the remarkable action of requesting that the Ninth Circuit—yes, the court itself—respond to the state of Arizona’s petition for a writ of mandate that would compel the Ninth Circuit to terminate further proceedings in the case. In a transparent effort to avoid having to explain its misconduct, the Ninth Circuit, on December 30, will terminate its proceedings.

2015—By a vote of 6 to 3, the Washington supreme court rules in League of Women Voters v. Washington that the state law authorizing charter schools violates the state constitution. The ruling came just as nine charter schools, serving some 1,200 students, had started the school year, thus (as one article reports) “creating chaos for hundreds of families.”  

 2018—A Ninth Circuit panel, in an opinion by Judge Marsha Berzon, rules (in Martin v. City of Boise) that “the Eighth Amendment’s prohibition on cruel and unusual punishment bars a city from prosecuting people criminally for sleeping outside on public property when those people have no home or other shelter to go to.”

Some months later, Judge Milan D. Smith Jr. (joined by five of his colleagues) will dissent from his court’s refusal to grant rehearing en banc:

In one misguided ruling, a three-judge panel of our court badly misconstrued not one or two, but three areas of binding Supreme Court precedent, and crafted a holding that has begun wreaking havoc on local governments, residents, and businesses throughout our circuit. Under the panel’s decision, local governments are forbidden from enforcing laws restricting public sleeping and camping unless they provide shelter for every homeless individual within their jurisdictions. Moreover, the panel’s reasoning will soon prevent local governments from enforcing a host of other public health and safety laws, such as those prohibiting public defecation and urination. Perhaps most unfortunately, the panel’s opinion shackles the hands of public officials trying to redress the serious societal concern of homelessness.

Law & the Courts

This Day in Liberal Judicial Activism—September 3

The Department of Health and Human Services building in Washington, D.C., August 5, 2021 (Brent Buterbaugh/National Review)

2020—In its steady decline over two decades from being arguably the best federal court of appeals to becoming perhaps the very worst, the Fourth Circuit hits a new low.

Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” By a vote of 9 to 6, the en banc court rules (in Mayor and City Council of Baltimore v. Azar) that the HHS’s regulations implementing Title X are unlawful. Never mind, as Judge Julius Richardson observes in dissent, that the “‘new’ Rule substantially returns the Title X regulations to the version that HHS adopted in 1988, and which the Supreme Court upheld as a permissible interpretation of Title X in Rust v. Sullivan (1991).”

Law & the Courts

A Procedural Abortion Ruling with a Substantive Lesson

The Supreme Court Building in Washington D.C., August 5, 2021 (Brent Buterbaugh/National Review)

Last night a 5–4 majority of the Supreme Court showed courage and faithfulness to rule of law by refusing to issue a stay or injunction in Whole Woman’s Health v. Jackson — in the face of an onslaught of egregious lies and histrionics from the Left about the case and its procedural posture. But this case involved abortion, so we shouldn’t be surprised by either the Left’s deception and the drama, or the media’s willingness to play along.

Well before it issued its ruling late last night, the Court drew great ire from liberals who were horrified by the prospect that the justices might not prevent the Texas Heartbeat Act from going into effect. That was despite numerous procedural hurdles in the case, most significantly the lack of a proper defendant.

The Court’s brief order — not at all unusual in the emergency-application context — made clear that the procedural issues prevented it from considering the constitutionality of the Texas law. The defendants are state officials plus one private citizen. The state officials claimed they lacked the authority to enforce the Texas law, which allows private citizens to file suit against any person who provides an abortion or aids or abets such an abortion. The one private citizen who was sued stated he has no intention to enforce the law. Absent such authority or intention among the named defendants, the majority concluded, “We cannot say the applicants have met their burden to prevail in an injunction or stay application.” All of that means that, as Ed Whelan has aptly explained, the case did not present a live controversy (i.e., an actual dispute between the parties).

All four dissenters — Chief Justice Roberts, along with Justices Breyer, Kagan, and Sotomayor — issued opinions. Roberts confined his argument to the procedural issue while the other three showed their indignation at Texas’s affront to Roe v. Wade and Planned Parenthood v. Casey. Justice Sotomayor called the Court’s order “stunning” and accused “a majority of Justices” of “bury[ing] their heads in the sand,” allowing “a law that flouts nearly 50 years of federal precedents.” As if the Court’s abortion jurisprudence were not a decades-long exercise in looking the other way when faced with an egregious misreading of the Constitution.

The rhetoric of the dissenters is head-scratching in light of the majority’s straightforward procedural ruling, which stated:

In reaching this conclusion, we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit. In particular, this order is not based on any conclusion about the constitutionality of Texas’s law, and in no way limits other procedurally proper challenges to the Texas law, including in Texas state courts.

On its face, the Court’s ruling does nothing to prevent a proper challenge to the Texas law in the future, and we very well may see that happen. Nor does the Court’s order address the constitutionality of Roe or Casey. The Court will have the opportunity to examine that question in depth, and with the benefit of full briefing and oral argument, in Dobbs v. Jackson Women’s Health Organization this coming term.

It is unclear whether a procedurally sound challenge to the new Texas abortion law will ever come before the Court. What is predictable is that if the Court renders a narrow decision on Dobbs that does not grapple with its unsound abortion jurisprudence at its core, another case, whether from Texas or elsewhere, will be just around the corner. Indefensible and unworkable precedents like Roe and Casey have a tendency to cause lingering problems until they are dealt with directly. That should be an incentive for the Court to repudiate its abortion aberration once and for all.

We can also predict that the Left’s lies, fearmongering, distortions, Court-packing threats, and general pressure campaigns of all stripes regarding abortion and the upcoming Dobbs case — and the willingness of the media to amplify them — have only just begun.

Buckle up, everybody.

Law & the Courts

Denial Should Have Been Unanimous


Last night the Court denied abortion providers’ beyondaudacious request for emergency relief against the Texas Heartbeat Act by a 5–4 vote. The feebleness of the four dissents shows that the denial should have been 9–0.

In one long paragraph, the per curiam majority (Thomas, Alito, Gorsuch, Kavanaugh, and Barrett) explains that the abortion providers’ request “presents complex and novel antecedent procedural questions on which they have not carried their burden.” Federal courts “enjoy the power to enjoin individuals tasked with enforcing laws, not [as so many people mistakenly suppose] the laws themselves.” The abortion providers haven’t shown that the “named defendants can or will seek to enforce the Texas law against the applicants in a manner that might permit our intervention.” (My emphasis.) Thus, there is no occasion to address the “serious questions [raised] regarding the constitutionality of the Texas law at issue.”

The four dissents have one common glaring defect. They fail to explain what relief they would order against which named defendants in a way that would somehow prevent the millions of nonparty individuals from enforcing the Act in hundreds of Texas courts. As I’ve pointed out, by their own account, the harm that the abortion providers allege is the same whether or not they receive full relief against the named defendants. (That’s why they were trying to get the district court to certify statewide defendant classes of judges and clerks.) Thus, they haven’t shown that emergency relief against the named defendants would prevent any injury they allege. They therefore are clearly not entitled to injunctive relief.

Let’s look at the dissents one by one:

The most disappointing — because we should have expected so much better, especially from someone who often presents himself as very serious about jurisdictional limits on judicial power — is the Chief’s (which Breyer and Kagan join). The Chief acknowledges that defendants “may be correct” that “existing doctrines preclude judicial intervention.” That acknowledgment should be enough to require him to deny relief. Instead, he somehow imagines that the Court has the power to “grant preliminary relief to preserve the status quo ante” so that the lower courts can address the “particularly difficult” questions that the case raises. And, again, he also mistakenly assumes that preliminary relief against the named defendants actually could “preserve the status quo ante.”

One bright note for those who fear that the Chief holds extraordinary sway over a couple of his conservative colleagues is that neither of them went south with him.

Justice Breyer (joined by Sotomayor and Kagan) declares that “it should prove possible to apply procedures adequate to [the] task” of preventing threatened imminent constitutional harm. But he doesn’t acknowledge that there are only eight actual defendants in the case, and the alternatives he imagines all depend on a much larger set of defendants.

Amidst extravagant rhetoric that you might find in a New York Times editorial, Justice Sotomayor (joined by Breyer and Kagan) complains that the majority “declined to grant relief because of procedural complexities of the State’s own invention.” Well, yes, that’s one way, I suppose, to acknowledge that the majority applied ordinary and long-established rules to the innovative Texas statute. She also weirdly faults the majority for “belatedly” explaining why it didn’t grant relief on Tuesday evening. Well, maybe the members of the majority were still working their way through the arguments (on a matter in which the abortion providers waited two-and-a-half months before filing their motion for preliminary injunction), or maybe they wanted to extend the usual courtesy of deferring an order until the dissents were ready. Picking up a cheap talking point from the Left, Sotomayor even charges that “a Fifth Circuit panel abruptly stayed all proceedings before the District Court” and doesn’t disclose that the district judge had already entered an order vacating the preliminary-injunction hearing as to all of the governmental defendants.

Justice Kagan, who is plenty smart enough to find a procedural solution if one existed, doesn’t even try to offer one. Instead, joined by Breyer and Sotomayor, she oddly complains that the “majority has acted without any guidance from the Court of Appeals” and “has reviewed only the most cursory party submissions, and then only hastily.” But her complaints ought to be directed against the abortion providers for leapfrogging the Fifth Circuit and asking for relief on an emergency basis (again, after taking two-and-a-half months to file their preliminary-injunction motion). And how can the three liberals complain in this dissent that the majority acted too hastily, while they complain in Sotomayor’s dissent that the majority acted belatedly?

Law & the Courts

This Day in Liberal Judicial Activism—September 2


2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review. The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.

In her dissent, Judge Johnnie B. Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule. She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) will reverse the Ninth Circuit in June 2004. Not a single justice will express agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion will take four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling. By a vote of 5 to 4, the Court will rule that Ring did not announce a watershed rule of criminal procedure.

2008—Federal district judge Beverly B. Martin rules that the federal statutory minimum sentence of 30 years for the crime of crossing a state line with intent to engage in a sexual act with a person under 12 years of age violated Kelly Brenton Farley’s Eighth Amendment right against cruel and unusual punishments “under the specific facts of his case.” (Emphasis in original.)

In June 2010, a unanimous Eleventh Circuit panel, after presenting the “specific facts” of Farley’s case in excruciating detail, will reverse Martin’s ruling. The panel explains that the Supreme Court’s 1992 ruling in Harmelin v. Michigan, which rejected an Eighth Amendment challenge to a mandatory life sentence of life imprisonment for the crime of possessing 672 grams of cocaine, forecloses Martin’s conclusion.

But in the meantime President Obama will appoint Martin to a seat on the Eleventh Circuit.

2014—In Wesby v. District of Columbia, a divided panel of the D.C. Circuit, in a majority opinion by Judge Cornelia Pillard, rules that raucous partygoers who were arrested for unlawful entry into a home that they had no legal right to enter were entitled to summary judgment on their claim that the officers lacked probable cause to arrest them and that the officers were not entitled to qualified immunity.

More than three years later, the Supreme Court will unanimously reverse Pillard. Justice Thomas’s opinion for the Court lambastes the D.C. Circuit panel for “fail[ing] to follow two basic and well-established principles of law.” First, the panel majority “viewed each fact in isolation, rather than as a factor in the totality of the circumstances.” Amazingly, the panel thus entirely dismissed from its assessment any fact that was “not sufficient standing alone to create probable cause.” (The quote is from Pillard’s opinion, with Thomas’s emphasis added.) Second, the panel majority “mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation,’” even if they did not dictate such an explanation.

As Thomas sums it up, a reasonable officer could easily have concluded that there was a “substantial chance” that the partygoers had illegally entered the house:

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized.

The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.…

The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them…. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.

On the qualified-immunity question, Thomas sets forth the elementary and “straightforward analysis” that Pillard should have applied. The supposed rule that Pillard extracted from District of Columbia case law was not “settled law,” as it was not supported by the single decision she cited and was indeed undercut by decisions that the “officers cited … in their opening brief” but that Pillard’s opinion inexplicably “failed to mention.”

Law & the Courts

This Day in Liberal Judicial Activism—September 1

Justice Scalia on Capitol Hill (Kevin Lamarque/Reuters)

2016—As Sherlock Holmes once observed, “it is better to learn wisdom late than never to learn it at all.” But the late learner might have the decency to acknowledge her earlier folly.

In a New York Times piece on Bill Clinton and Kenneth Starr, Linda Greenhouse offers effusive—and appropriate—praise for Justice Scalia’s solo dissent in Morrison v. Olson, the 1988 case in which the Court rejected a separation-of-powers challenge to the independent-counsel statute:

“It was a dissenting opinion of which he was deservedly proud, even perhaps his best work. His words were prescient, his analysis airtight.” [Emphasis added.]

Although her readers wouldn’t know it, Greenhouse had a very different reaction to Scalia’s dissent back in 1988, when she complained of its supposedly “fevered tone” and quoted only a four-word “sarcastic reference” in it. Indeed, she regretted back then that the independent-counsel statute did not intrude more on presidential power. Only the use of the independent-counsel statute against President Clinton and others in his administration awakened Greenhouse to the separation-of-powers problems that were manifest to Scalia. (More here.)

2017—In its statement of opposition to President Trump’s nomination of Michigan supreme court justice Joan Larsen to a seat on the Sixth Circuit, People For the American Way complains that her campaign website for her recent judicial election stated that “judges should interpret the laws according to what they say, not according to what the judges wish they would say” and that judges “are supposed to interpret the laws; they are not supposed to make them.”

PFAW asserts that these elementary principles are “coded language used by ultra-conservative jurists and activists to signal a willingness to issue rulings that (among other things) do not recognize the constitutional right to abortion or the fundamental humanity and equality of LGBTQ people.”

Never mind that Justice Sotomayor used that same “coded language” when she testified at her confirmation hearing that “The task of a judge is not to make the law—it is to apply the law.” Ditto for statements by countless other Democratic judicial appointees over the years.

Law & the Courts

Abortion Providers Try to Game the Supreme Court on Texas Heartbeat Act


In racing to the Supreme Court to try to get injunctive relief, the abortion providers in the Texas Heartbeat Act litigation are trying to game the Court to rule on issues that, because of their own litigation strategy, no lower court has even addressed. They are seeking an advisory opinion in a case that should have been dismissed at the outset for absence of a live controversy.

Let’s review things:

1. The bill that became the Texas Heartbeat Act was introduced in the Texas legislature in March 2021 and was signed into law by Governor Abbott on May 19. Plaintiff abortion providers waited nearly two months—until July 13—to file their complaint, and it wasn’t until nearly a full month later, on August 7, that they filed a motion for a preliminary injunction. In short, they dilly-dallied for more than two-and-a-half months.

2. Plaintiff abortion providers failed to tee up for early decision the obvious jurisdictional obstacles they faced with respect to each of the defendants. In opposing defendants’ motion to dismiss on jurisdictional grounds, they also should have known that the district court’s (mistaken) ruling against the governmental defendants on sovereign immunity would entitle those defendants to immediately appeal that ruling and that such appeal would divest the district court of jurisdiction over the proceeding, at least with respect to those defendants (who account for all of the defendants other than the one private citizen).

Those who fault the Fifth Circuit panel for abiding by circuit precedent in issuing a temporary administrative stay of the district-court proceedings fail to observe that the district judge himself had, earlier the same day, already ordered the case stayed and the preliminary-injunction hearing vacated with respect to the governmental defendants.

We now have the absurd spectacle in which plaintiff abortion providers have asked both the Fifth Circuit and the Supreme Court to vacate the district judge’s ruling in their favor on defendants’ motion to dismiss.

3. Because of the abortion providers’ litigation decisions—decisions that seem to have been driven by a desire to obscure the jurisdictional obstacles they faced—no lower court has yet ruled on the legal questions that the abortion providers would have the Supreme Court decide on an incredibly rushed basis.

Nor are these legal questions anywhere near as simple as the abortion providers contend. The Texas Heartbeat Act is an intricate statute whose meaning the Texas courts, and ultimately the Texas Supreme Court, are entitled to determine. The abortion providers’ claim that the Act is inconsistent with Supreme Court precedent ignores the fact that the Act itself explicitly confers on abortion providers an “affirmative defense to liability” in the event they demonstrate that a lawsuit brought under the Act “impose[s] an undue burden.” Further, it is incontestable that some of the Act’s applications (e.g., to non-therapeutic post-viability abortions, to take an easy example) are permissible under current Supreme Court precedent. The Act also has elaborate severability provisions.

Thus, even apart from its obligation not to render advisory opinions and even apart from the pending challenge to the Court’s abortion precedents in Dobbs v. Jackson Women’s Health Organization, it would be a gross folly for the Supreme Court to address the constitutionality of the Act.


What the Court should instead do is issue a simple order along the following lines:

We deny petitioners the extraordinary pre-enforcement relief they seek, as they have failed to establish that there is a live case or controversy: all the defendants except Dickson have strong claims to sovereign immunity, and none of them appear to have any role in enforcing the Texas Heartbeat Act. As for Dickson, he attests that he has no intention of enforcing the Act against petitioners, and there is nothing in the record that calls his attestation into question.

In denying relief, we refrain from offering an advisory opinion on the constitutionality of the Act. Petitioners remain free to assert the unconstitutionality of the Act as a defense in any case in which anyone undertakes to enforce the Act against them.

Law & the Courts

Fourth Circuit Denies En Banc Rehearing on School Board’s Title IX Liability


In an order yesterday in Doe v. Fairfax County School Board, the Fourth Circuit voted by a margin of 9 to 6 (along ideological lines) to deny a school board’s petition for rehearing en banc of a divided panel decision in June that overturned a jury verdict in favor of the school board. The plaintiff in the case had sued the school board under Title IX, alleging that her school had acted with deliberate indifference to reports that she had been sexually assaulted by a fellow student on a bus trip. She will now be able to pursue a new trial.

Three judges issued opinions regarding the denial of rehearing en banc.

Judge James Wynn, author of the panel opinion, wrote to object to his fellow judges’ issuance of dissents from denial of rehearing—dissents that he says “read like editorials or legal commentary” on the panel decision and “provide next to no explanation” why the standard for en banc rehearing is met—and to respond to those dissents.

Judge J. Harvie Wilkinson argued in his dissent that under Supreme Court precedent (specifically, the Pennhurst doctrine) “Title IX cannot be read to impose liability on local school systems for a single isolated incident of pre-notice sexual harassment in schools, because that condition of Title IX does not begin to flow unambiguously from the text of the statute.”

Judge Paul Niemeyer, who dissented from the panel opinion, charges that the panel decision “extends the liability of a high school under Title IX to cover damages sustained by a student from a single, isolated incident of student-on-student sexual harassment, of which the school had no knowledge until after the fact.”

I’ll leave it to interested readers to sort through the back and forth. I find it difficult to summarize the exchanges, both in yesterday’s opinions and in the panel decision, in part, I think, because the judges seem to have very different reads on what the challenged jury finding actually means and on what the school’s alleged indifference consists of.

Law & the Courts

Symposium Celebrating Justice Thomas’s 30 Years on Supreme Court


This fall — on October 23, precisely — Justice Thomas will celebrate 30 years of outstanding service on the Supreme Court. I was fortunate to be there at the beginning, as I was a law clerk for Justice Scalia when Justice Thomas and his law clerks moved into the chambers immediately down the hall.

To mark the anniversary, the Harvard Journal of Law & Public Policy has posted an outstanding online symposium of tributes — some personal, some on his legal legacy — by various of his former law clerks. Very much on the personal side, here’s an excerpt from law professor Nicole Stelle Garnett’s beautiful piece, “What I Saw at the Daytona 500”:

After Mass each day, the Justice waited outside on the steps for his “ladies,” as he referred to the two older women (one white, one black) who would regale him with various stories and memories of childhood.  (I remember a particularly animated one involving roller skating on the lot where the Supreme Court now sits.)  No matter how busy his day ahead, he waited—not because he had the time to spare, but because he knew that it mattered to them.  I recently asked the Justice if he remembered them, and he said, “Oh yes, Geraldine.  She died, you know.  The other was Ilsa.  She always accompanied her mother.  I miss those chats.”  Those chats, I believe, capture something important about Justice Thomas—something that we all left chambers understanding more deeply:  There is never anyone more important than the person in front of you.

Geraldine and Ilsa were not the only beneficiaries of this lesson.  One day, he stopped to talk to a Capitol Police officer standing in front of the Hart Senate Office Building.  He addressed him by his first name and asked about his son.  As we walked away, I asked how he knew the man.  He replied that he’d gotten to know him when he worked for Senator Danforth, twenty years before, and that the officer was very proud of his son who was in the seminary.  I marveled that he could remember his name, let alone those details, after twenty years.  Another day, a man who appeared to be homeless walked up to say something like “Justice Thomas, I’m sending you another petition!”  The security detail accompanying us tried to turn the man away, but the Justice waved them off and talked to the man for a few minutes.  As we returned to the Court, he remarked, “You know, these are hard days for him.  It was recently the anniversary of his mother’s death.”  I was stunned:  In a city full of people who spend every conversation looking over each other’s shoulder to see if someone more important is in the room, Justice Thomas stopped to be kind to a homeless man who was mourning the loss of his mother.  Nobody was ever more important than the person in front of him.

Law & the Courts

This Day in Liberal Judicial Activism—August 31

The Sather Gate on the Berkeley campus (Simathers/Dreamstime)

2020—In Smith v. Regents of the University of California, state trial judge Brad Seligman issues a preliminary injunction barring the various University of California schools from considering the results of SAT or ACT tests in admissions and scholarship decisions.

UC president Janet Napolitano and the UC Regents are complicit in their own defeat. Faculty leaders, citing data showing that the standardized tests might actually boost enrollment of disadvantaged students, had recommended retaining the tests. But overriding the faculty recommendation, Napolitano and the regents decided to eliminate the tests systemwide in 2022 and to allow individual campuses to immediately abandon use of the tests. In weighing the public interest, Seligman deploys UC’s decision to abandon the tests against it.

Law & the Courts

Abortion Providers’ Baseless Request to Supreme Court to Enjoin Defendants in Texas Heartbeat Act Litigation


It’s not enough that Texas abortion providers continue to press a lawsuit against the Texas Heartbeat Act that should have been dismissed at the outset for lack of subject-matter jurisdiction. They’re now running to the Supreme Court to try to get the Justices to enjoin state officials from enforcing a law that the law itself prohibits those state officials from enforcing. They seem to imagine that courts can enjoin a law, when what courts actually can do (upon a proper showing) is enjoin defendants from enforcing a law, but only when (among other things) defendants actually have an enforcement role.

The short answer to the abortion providers’ application is that the ordinary rules governing pre-enforcement challenges to laws apply in this case as well, and those ordinary rules mean that the abortion providers lack standing and that there are no defendants against whom they are entitled to obtain relief. They can instead challenge the constitutionality of the Act if and when private plaintiffs undertake to enforce it against them.

I’ll also note that because the district court hadn’t yet ruled on plaintiffs’ request to certify statewide classes of judges and clerks, the single judge and single clerk named as defendants work in only one of Texas’s 254 counties. Under plaintiffs’ own theory, they won’t be able to operate at all in Texas if the only judges and clerks against whom they were to obtain relief were these two defendants. Thus, any harm they face is the same whether or not they receive the emergency relief they seek against these two defendants. In other words, they haven’t shown that emergency relief against actual defendants would prevent any injury they allege.

Oddly, the abortion providers also fault the Fifth Circuit for its supposedly “rigid application of the divestiture doctrine.” But as they elsewhere acknowledge, the district court likewise granted a stay of the proceedings as to all defendants except the private citizen “based on their [i.e., defendants’] argument that the interlocutory appeal on sovereign immunity divested the court of jurisdiction.” The abortion providers’ claim that the Fifth Circuit has somehow left things “in limbo” likewise fails to acknowledge that it has acted, and can be expected to continue to act, with dispatch.

I find it especially amusing that here, as in the Fifth Circuit, the abortion providers ask that the district-court’s ruling in their favor—denying defendants’ motion to dismiss on jurisdictional grounds—be vacated (so that the transfer of jurisdiction over the case from the district court to the Fifth Circuit would be undone).

The Supreme Court should unanimously deny this request—in a heartbeat.

Law & the Courts

A Quick Primer on Litigation over Texas Heartbeat Act


Abortion activists are irrationally angry at a Fifth Circuit panel for what is, as I will explain, an elementary order that, in light of a pending appeal on threshold jurisdictional questions, prevents the district court from proceeding with a case challenging the Texas Heartbeat Act. Let’s put things in proper context.

Texas governor Greg Abbott signed S.B. No. 8, the Texas Heartbeat Act, into law in May. Except in the case of a medical emergency, the Act prohibits a physician from performing or inducing an abortion “if the physician detected a fetal heartbeat for the unborn child … or failed to perform a test to detect a fetal heartbeat.”

What is most innovative—indeed, brilliant—about the Texas Heartbeat Act is that it affirmatively prohibits state officials from enforcing the Act in any way and instead authorizes private persons to bring a civil action against anyone who performs or induces an abortion in violation of the Act or who knowingly aids or abets such a post-heartbeat abortion (including employers and insurers who pay for or reimburse the costs of a post-heartbeat abortion). (See §§ 171.207-.208.) If a private plaintiff prevails, the court “shall award” injunctive relief to prevent further violations by the defendants, statutory damages to the plaintiff in the amount of at least $10,000 for each violation, and costs and attorney’s fees. The Act becomes effective on September 1.

The Texas Heartbeat Act was written this way to prevent abortion providers from obtaining pre-enforcement relief against state officials. Because state officials are not permitted to enforce the Act, they will have sovereign immunity if anyone attempts to sue them over the constitutionality of the statute. (The Ex parte Young exception to sovereign immunity applies only when the named defendant has “some connection with the enforcement of the act.”) State-court judges also are immune from suit, under both Ex parte Young and Fifth Circuit precedent.* In short, any abortion provider that wants to challenge the constitutionality of the Act must wait to be sued and assert its constitutional claims defensively in the private civil-enforcement action.

In mid-July, in a desperate attempt to preempt enforcement of the act, various abortion providers and other plaintiffs nonetheless filed suit in federal district court. Specifically, they sued four sets of defendants: (1) the state attorney general and various other state officials; (2) a state judge; (3) a county judicial clerk; and (4) Mark Lee Dickson, a private citizen and pro-life activist. The plaintiffs asked the district court to certify a defendant class of every state-court judge and enjoin the entire state judiciary from considering any lawsuit brought under the Act. They also asked the district court to certify a defendant class of every court clerk in Texas and enjoin clerks from accepting or filing any documents submitted in private civil-enforcement lawsuits.

To put it mildly, this was an audacious lawsuit, and it faced insuperable jurisdictional hurdles. The claims against the state officials are unequivocally barred by sovereign immunity because the Act explicitly prohibits state officials from enforcing it in any manner. The claims against the state judges and court clerks are also barred by sovereign immunity because the Ex parte Young exception is inapplicable to lawsuits that seek to prevent the state judiciary from adjudicating cases between litigants. And Dickson, who was evidently sued only because he is a pro-life activist, submitted a sworn affidavit stating that he has no intention of suing any of the plaintiffs under the Act. So there is no live case or controversy with respect to Dickson, and there is also no Article III case or controversy with respect to the other defendants, as none of them is enforcing or threatening to enforce the Act against any of the plaintiffs.

Somehow none of that stopped federal district judge Robert L. Pitman (an Obama appointee) from issuing an order last Wednesday denying defendants’ motion to dismiss on jurisdictional grounds. But because Pitman denied defendants’ sovereign-immunity defense, they had a right, which they promptly exercised, to appeal his ruling to the Fifth Circuit. And by appealing Pitman’s ruling, the defendants immediately divested Pitman of jurisdiction to proceed against them, as Fifth Circuit precedent holds that an appeal of a sovereign-immunity defense automatically divests the district court of jurisdiction until after the appellate court has ruled.

That’s why a Fifth Circuit panel on Friday granted defendants’ motion to block Pitman from further proceedings in the meantime, including a hearing that he had set for today on plaintiffs’ motion for a preliminary injunction. That also explains why the plaintiffs, in a hilarious maneuver designed to send the case back to Pitman, asked the Fifth Circuit panel to vacate Pitman’s order in their favor on the sovereign-immunity (and other jurisdictional) issues—a request that the panel promptly and properly denied yesterday.

Judge Pitman never had proper jurisdiction over this case to begin with, and the case should have been dismissed at the outset for lack of subject-matter jurisdiction. The Fifth Circuit will now have the opportunity to make that clear.

* See Ex parte Young (1908) (“[T]he right to enjoin an individual, even though a state official, from commencing suits . . . does not include the power to restrain a court from acting in any case brought before it, either of a civil or criminal nature.… [A]n injunction against a state court would be a violation of the whole scheme of our Government.”); Bauer v. Texas, (5th Cir. 2003) (“The requirement of a justiciable controversy is not satisfied where a judge acts in his adjudicatory capacity”).

Law & the Courts

This Day in Liberal Judicial Activism—August 30

(diane39/Getty Images)

1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.” Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.”

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees. Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…  Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.

Ah, the unintended consequences of liberal judicial activism: According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.” Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court. Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.

Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation. In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary. Out of 57 employees, zero blacks.

Ginsburg will end up hiring only one black law clerk during her Supreme Court tenure. So over her career of more than four decades on the bench, that’s a single black law clerk out of her total of 150 or so law clerks.

Law & the Courts

This Day in Liberal Judicial Activism—August 28

( Natalia Bratslavsky/Getty Images)

2019—In concurring in the denial of rehearing en banc of his panel ruling in CIC Services v. IRS, Judge Eric L. Clay accuses his seven dissenting conservative colleagues of “textbook judicial activism” and of trying “to inflict death by distorted originalism on the modern administrative state.” In particular, he objects to their conclusion that the Anti-Injunction Act does not prohibit a suit seeking to set aside an Internal Revenue Service information-reporting requirement that is backed by civil and criminal penalties.

Alas for Clay, a unanimous Supreme Court, in an opinion by Justice Kagan, will vindicate the dissenters in a ruling in May 2021.

Law & the Courts

The Court Sets Things Right on the Eviction Moratorium

President Joe Biden and Vice President Kamala Harris receive an update on the fight against the coronavirus pandemic as they visit the Centers for Disease Control and Prevention (CDC) in Atlanta, Ga., March 19, 2021. (Carlos Barria/Reuters)

Earlier this summer, I criticized Justice Kavanaugh for refusing to vacate a stay of a district court order striking down the Biden administration’s moratorium on evictions, regardless of what he acknowledged in an odd concurring opinion to be its illegality. Last night, after the issue returned to the Court, a majority including Kavanaugh set things right by vacating a similar stay.

The underlying issue was a power grab by the CDC. In 2020, the agency imposed a moratorium on evictions in residential properties across the country after a narrower moratorium in response to the pandemic authorized by the CARES Act for a period of 120 days expired. Even before its expiration, the statute had applied only to properties that participated in federal assistance programs or were subject to federally backed loans. A second statute, the Public Health Service Act of 1944, gave no support to the CDC either. It applied by its terms to identifying and destroying disease directly by such measures as inspection and disinfection. It had never before been invoked to justify an eviction moratorium and was rarely invoked at all.

When the Alabama Association of Realtors filed an emergency motion in June, the moratorium remained in place due to one vote — Kavanaugh’s — and he allowed it only because the moratorium was set to expire a few weeks later, on July 31, even while making it clear specific congressional authorization was necessary for any further extension.

No such authorization followed from Congress, and the Biden administration brazenly defied the Court by reimposing the moratorium three days after it expired, with no difference from the earlier moratorium except to be slightly narrower in the geographic area it covered. This despite President Biden’s admission that most scholars he consulted warned it was “not likely to pass constitutional muster.” Some, apparently including Laurence Tribe, suggested he take the risk anyway since it would buy time. So much for the rule of law.

After the issue returned to the Court, the Biden administration received an unequivocal smackdown last night. In an unsigned opinion, the Court found the applicants “virtually certain to succeed on the merits.” It called the CDC’s stretching of the Public Health Service Act “unprecedented” and “a wafer-thin reed on which to rest such sweeping power.”  The agency went so far as to impose criminal penalties of up to a $250,000 fine and one year in jail for violators. The administration, the Court made clear, disregarded both the human cost of its actions and a foundational principle of law: “Many landlords have modest means. And preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property ownership — the right to exclude.”

The vote was 6–3 along familiar ideological lines, with not only Kavanaugh, but also Chief Justice Roberts, now forming a majority. Justice Breyer wrote a dissent joined by the two other liberals that dealt mostly with policy arguments about housing and the pandemic. The eviction moratorium is now dead. But the lawlessness of the Biden administration’s position, and the Breyer dissent, which amounts to an op-ed on public-health policy, should leave no doubt in anyone’s mind about the contemporary Left’s approach to the Court.

Law & the Courts

This Day in Liberal Judicial Activism—August 27

Judge David F. Hamilton at the IU Maurer School of Law. (Steve Raymer)

1996—In the face of repeated statements by the Supreme Court that the performance of abortions may be restricted to licensed physicians, a Ninth Circuit panel of liberal appointees (Harry Pregerson, William Canby, Michael Hawkins) rules in Armstrong v. Mazurek that plaintiffs challenging a Montana law that imposes such a restriction allows only licensed physicians to perform abortions have a “fair chance of success” on their claim and that the district court wrongly denied them preliminary injunctive relief.

In June 1997, the Supreme Court will summarily reverse the Ninth Circuit (by a vote of 6 to 3).

2014—In Bible Believers v. Wayne County, a divided panel of the Sixth Circuit confers “a clear heckler’s veto,” as dissenting judge Eric L. Clay puts it—or is it a thug’s veto?—on an angry crowd at the 2012 Arab International Festival. The panel majority rules that the “threat of violence” at the festival on the streets of Dearborn, Michigan “had grown too great to permit [a group of Christian evangelists] to continue proselytizing.”

Three months later, the Sixth Circuit will grant en banc review of the ruling. In October 2015, the en banc Sixth Circuit, in a majority opinion by Judge Clay, will hold that county police violated the constitutional rights of the Christian evangelists when they barred them from continuing to proselytize.

2019—In a divided ruling in Planned Parenthood v. Adams, a Seventh Circuit panel, in a majority opinion written by Judge David F. Hamilton, deems unconstitutional a provision of Indiana law that requires that parents be given prior notice of their minor daughter’s planned abortion unless a judge determines that such notice is not in her best interests.

2020—Four decades after Monty Python’s Life of Brian lampoons the supposed injustice that men can’t gestate babies, federal district judge Michael L. Brown, protesting that reality, rewrites federal law governing conferral of citizenship at birth. Because “it is impossible for two men to be related biologically to the same child,” Brown posits (in Mize v. Pompeo) that the long-established reading of a federal statute to require a biological relationship between the child and the parents for one avenue to citizenship at birth “would raise serious constitutional questions” regarding gay couples and should therefore be jettisoned.

Law & the Courts

This Day in Liberal Judicial Activism—August 26

Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

2009—In what Fourth Amendment expert Orin Kerr describes as the “most free-wheeling, ‘look ma no hands’ legal decision I’ve read in a long time,” a limited en banc panel of the Ninth Circuit, in a majority opinion by Chief Judge Alex Kozinski (in United States v. Comprehensive Drug Testing, Inc.), announces a set of new rules governing searches and seizures of electronic records. Among the rules:  “Magistrates should insist that the government waive reliance upon the plain view doctrine in digital evidence cases.”

In his partial dissent, Judge Carlos Bea complains that the majority’s “bright-line diktats” effect a “dramatic doctrinal shift” in a “rapidly developing area” and that the majority should instead have limited its decision “as precisely as possible to the case at hand.” Kerr observes that the court’s “laundry list of brand-new rules, introduced with no citations to any authority,” reminds him of the Warren Court’s inventions in Miranda v. Arizona.

One year later, in response to the Department of Justice’s petition for full en banc rehearing, the en banc panel will quietly amend its opinion to eliminate the set of new rules.

2020—A divided Fourth Circuit panel rules in Grimm v. Gloucester County School Board rules that a school board violated the Equal Protection and Title IX rights of a “transgender male”—i.e., a female who identified as male—when it assigned multi-user restrooms on the basis of sex and made single-user restrooms available to all students. The Fourth Circuit panel majority rests its legal analysis on the extraordinary assertion that a girl who identifies as a boy is in fact a boy. That assertion contradicts Justice Gorsuch’s statutory analysis in Bostock v. Clayton County, which hinges on the proposition that a woman who identifies as a man is in fact a woman. (In June 2021 the Supreme Court will deny the school board’s petition for certiorari.)

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Chief Justice Roberts, Judicial Restraint, and Dobbs


As I spelled out yesterday, the “important principles of judicial restraint and stare decisis” that Chief Justice Roberts set forth in his concurring opinion in Citizens United v. FEC (2010) ought to lead him to vote in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade and Planned Parenthood v. Casey. In this post, I will explain two respects in which the Chief’s jurisprudential principles make the case for him to overrule Roe and Casey vastly stronger than his case for overruling Austin v. Michigan Chamber of Commerce in Citizens United.

1. In Citizens United, the Chief concluded only that the “text and purpose of the First Amendment point in the same direction” (emphasis added): that, contrary to Austin, “Congress may not prohibit political speech, even if the speaker is a corporation or union.” By contrast, under the Chief’s jurisprudential principles, Roe and Casey are egregiously and screamingly wrong.

These (and other) passages from the Chief’s introduction to his powerful dissent in Obergefell v. Hodges (2015) operate equally as a damning condemnation of Roe:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.” As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?

It can be tempting for judges to confuse our own preferences with the requirements of the law. But as this Court has been reminded throughout our history, the Constitution “is made for people of fundamentally differing views.” Lochner v. New York (1905) (Holmes, J., dissenting). Accordingly, “courts are not concerned with the wisdom or policy of legislation.” Id. (Harlan, J., dissenting). The majority today neglects that restrained conception of the judicial role. It seizes for itself a question the Constitution leaves to the people, at a time when the people are engaged in a vibrant debate on that question. And it answers that question based not on neutral principles of constitutional law, but on its own “understanding of what freedom is and must become.” I have no choice but to dissent.

Understand well what this dissent is about: It is not about whether, in my judgment, the institution of marriage should be changed to include same-sex couples. It is instead about whether, in our democratic republic, that decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes according to law. The Constitution leaves no doubt about the answer.

The very fact that the majority in Casey refused to acknowledge that Roe was egregiously wrong means that its stare decisis analysis was fundamentally unsound. Further, the Chief’s arguments in Citizens United that stare decisis does not support retaining a precedent by reconceiving the grounds for that precedent and that the Court “cannot keep [a] precedent alive [by] jury-rigging new and different justifications to shore up the original mistake” apply even more strongly to Casey.

2. Citizens United differs from Dobbs in one major respect that should matter a lot to the Chief—in particular, to his deep commitment to (as he puts it in Obergefell) “a restrained conception of the judicial role.” By reversing Austin, the Court in Citizens United forbade the democratic processes from enacting certain types of laws (laws that allow political speech to be banned based on the speaker’s corporate identity). By reversing Roe and Casey, the Court in Dobbs would restore abortion policy to the democratic processes.

Judicial restraint, as I use the term and as I believe the Chief understands it, emphasizes the limits on the role of the federal courts in our system of separated powers and federalism. Its opposite judicial activism succinctly conveys the charge that the courts have wrongfully invaded the realm of representative government by, for example, inventing supposed constitutional rights that trump democratic enactments.

Proponents of judicial restraint typically call for judges to defer to democratic enactments unless those enactments have been clearly shown to be unconstitutional. There is of course plenty of room among proponents of judicial restraint to debate which interpretive principles should govern, what the proper standard of clarity is, and thus where the line between proper judicial restraint and improper judicial passivism (excessive deference to the democratic processes) lies.

Considerations of stare decisis are often confused (frequently deliberately, it would seem) with judicial restraint. But stare decisis is generally an intrajudicial doctrine, not a doctrine about the role of the courts in a democratic republic. When the Supreme Court addresses a question that it has addressed before, it accords a degree of respect, or deference, to its previous treatment of the question, partly from the presumption that the Court carefully addressed the question the first time, partly from the impracticability of addressing every question anew in every case.

For the Chief and other proponents of judicial restraint, stare decisis considerations should be especially weak when—as with Roe and Casey—the precedent under examination has usurped the democratic processes.

Law & the Courts

This Day in Liberal Judicial Activism—August 25

Justice Ruth Bader Ginsburg speaks at a conference in Long Beach, Calif., October 26, 2010. (Mario Anzuoni/Reuters)

2013—Ah, yes, Justice Ruth Bader Ginsburg, champion of judicial restraint.

Two months after providing the fifth vote to invalidate the federal Defense of Marriage Act, Ginsburg brazenly observes in a New York Times article that if judicial activism is “measured in terms of readiness to overturn legislation,” her conservative colleagues have made the Roberts Court “one of the most activist courts in history.” Her claim, even on her own terms, is wrong. But the hyperactivist Ginsburg is also deploying a neutered meaning of the term judicial activism that fails to distinguish between correct and incorrect invalidations of democratic enactments.

Ginsburg’s claim is reminiscent of the leftist charge during the Cold War that the CIA and the KGB were engaged in morally equivalent acts of spycraft. As William F. Buckley responded to that charge, that’s like “saying that the man who pushes an old lady into the path of a hurtling bus is not to be distinguished from the man who pushes an old lady out of the path of a hurtling bus: on the grounds that, after all, in both cases someone is pushing old ladies around.”

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Chief Justice Roberts, Stare Decisis, and Dobbs


For anyone trying to understand how Chief Justice Roberts’s jurisprudential principles apply to the question whether he should vote in Dobbs v. Jackson Women’s Health Organization to overrule Roe v. Wade and Planned Parenthood v. Casey, the Chief’s concurring opinion in Citizens United v. FEC (2010) is essential—and, from the perspective of those of us urging overruling, very encouraging—reading.

In Citizens United, the Court, by a 5-to-4 vote, overruled its decision twenty years earlier in Austin v. Michigan Chamber of Commerce that the First Amendment allows political speech to be banned based on the speaker’s corporate identity. In addition to joining Justice Kennedy’s majority opinion, the Chief (joined by Justice Alito) wrote separately “to address the important principles of judicial restraint and stare decisis implicated in this case.” In this post, I will outline the Chief’s exposition and the various ways in which it applies to Dobbs.

1. The Chief rejects the proposition that the Court had “reaffirmed” Austin by applying it in later cases:

This is the first case in which we have been asked to overrule Austin, and thus it is also the first in which we have had reason to consider how much weight to give stare decisis in assessing its continued validity. The dissent erroneously declares that the Court “reaffirmed” Austin’s holding in subsequent cases…. Not so. Not a single party in any of those cases asked us to overrule Austin, and as the dissent points out, the Court generally does not consider constitutional arguments that have not properly been raised. Austin’s validity was therefore not directly at issue in the cases the dissent cites. The Court’s unwillingness to overturn Austin in those cases cannot be understood as a reaffirmation of that decision.

Dobbs is likewise the first case in which a party has asked the Court to overrule Casey. Casey’s validity was not “directly at issue” in the Court’s various abortion rulings since then, so the Court’s unwillingness to overturn Casey in those cases “cannot be understood as a reaffirmation of that decision.” Therefore, Casey does not benefit from the additional stare decisis weight it would have if it had been repeatedly (or even once) reaffirmed.

2. The Chief explains that stare decisis does not support retaining a precedent by reconceiving the grounds for that precedent:

To the extent that the Government’s case for reaffirming Austin depends on radically reconceptualizing its reasoning, that argument is at odds with itself. Stare decisis is a doctrine of preservation, not transformation. It counsels deference to past mistakes, but provides no justification for making new ones. There is therefore no basis for the Court to give precedential sway to reasoning that it has never accepted, simply because that reasoning happens to support a conclusion reached on different grounds that have since been abandoned or discredited.

Doing so would undermine the rule-of-law values that justify stare decisis in the first place. It would effectively license the Court to invent and adopt new principles of constitutional law solely for the purpose of rationalizing its past errors, without a proper analysis of whether those principles have merit on their own. This approach would allow the Court’s past missteps to spawn future mistakes, undercutting the very rule-of-law values that stare decisis is designed to protect.

The Chief’s explanation means that the Court in Casey wrongly invoked stare decisis as it reconceived and modified the holding of Roe. And it also means that the Court in Dobbs can’t invoke stare decisis to reconceive or modify Casey.

3. The Chief sets forth basic stare decisis doctrine: On the one hand, departures from precedent are inappropriate in the absence of a “special justification.” On the other hand, stare decisis is not an “inexorable command, … especially in constitutional cases.” It is instead a “principle of policy” in which “we must balance the importance of having constitutional questions decided against the importance of having them decided right.”

4. As the Chief explains, stare decisis “is not an end in itself” but is instead “to serve a constitutional ideal—the rule of law”:

It follows that in the unusual circumstance when fidelity to any particular precedent does more to damage this constitutional ideal than to advance it, we must be more willing to depart from that precedent.


[I]f adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases, when its rationale threatens to upend our settled jurisprudence in related areas of law, and when the precedent’s underlying reasoning has become so discredited that the Court cannot keep the precedent alive without jury-rigging new and different justifications to shore up the original mistake.

a. The Chief points out that “the validity of Austin’s rationale—itself adopted over two ‘spirited dissents’—has proved to be the consistent subject of dispute among Members of this Court ever since.” And while the “simple fact that one of our decisions remains controversial is … insufficient to justify overruling it,” that fact “does undermine the precedent’s ability to contribute to the stable and orderly development of the law.” “In such circumstances,” the Chief observes, “it is entirely appropriate for the Court—which in this case is squarely asked to reconsider Austin’s validity for the first time—to address the matter with a greater willingness to consider new approaches capable of restoring our doctrine to sounder footing.”

Likewise: Roe and Casey were both adopted over spirited dissents and have been the subject of intense dispute among the Justices ever since. (The Chief’s debate with Justice Breyer in June Medical over what Casey’s undue-burden standard even means is only the latest example.) They have not produced clarity or predictability. The Court should therefore have an even “greater willingness” to reconsider them.

b. The Chief also points out in Citizens United that Austin “threatens to subvert our decisions outside the particular context of corporate express advocacy” and that “the costs of giving [Austin] stare decisis effect are [therefore] unusually high.”

Similarly, Roe and Casey have caused distortions in important doctrinal areas, such as First Amendment speech (Hill v Colorado), basic rules of res judicata (Whole Woman’s Health v. Hellerstedt), third-party standing (June Medical v. Russo), and the standard for facial challenges (Casey). The costs of giving Roe and Casey stare decisis effect are thus unusually high. (Roe and Casey of course inflict other massive costs that have no analogue in Austin.)

5. The Chief rejects the “false premise” that “our practice of avoiding unnecessary (and unnecessarily broad) constitutional holdings somehow trumps our obligation faithfully to interpret the law.” The Court “cannot embrace a narrow ground of decision simply because it is narrow; it must also be right.”

The bottom-line legal question in Dobbs is whether the Constitution permits Mississippi’s law allowing abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality. There is no way to decide that question without first deciding whether to overrule the extraordinary protections that Roe and Casey confer on abortion, and there is no coherent narrow (or middle) ground to adopt on that threshold question. (Law professor Sherif Girgis elaborates these points here.)

Law & the Courts

This Day in Liberal Judicial Activism—August 24

(jaflippo/Getty Images)

1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA. Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision. Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning. In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

2020—In a pair of orders (in Jones v. Shinn and Ramirez v. Shinn), the Ninth Circuit denies en banc review of panel rulings that allow Arizona prisoners on death row to pursue their federal habeas claims that their postconviction counsel in state habeas proceedings had provided constitutionally inadequate assistance. In a dissent from each order, Judge Daniel P. Collins, joined by seven of his colleagues, objects that the panel decisions “disregard controlling Supreme Court precedent by creating a new judge-made exception to the restrictions imposed by the Antiterrorism and Effective Death Penalty Act on the use of new evidence in habeas corpus proceedings.”

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Eleventh Circuit Grants En Banc Rehearing in Transgender Restroom Case


I’m pleased to see that in an order today the Eleventh Circuit granted en banc rehearing in Adams v. School Board of St. Johns County, a case presenting the question whether a school board violated the constitutional and Title IX rights of a transgender student—a girl who identifies as male—by barring her from using the boys’ restroom.

I wrote here about the divided panel ruling last month, which superseded a divided ruling by the same panel a year ago. As I explained in this post, the grant of en banc rehearing might ultimately tee the issue up for Supreme Court review and thus enable the Court to minimize the damage from its serious error in failing to grant certiorari in the Fourth Circuit case of Gloucester County School Board v. Grimm.

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Law Professor to Kavanaugh: ‘Become the New Kennedy’


The Left’s “good cop, bad cop” campaign to cajole and intimidate the conservative justices that it regards as conceivably “gettable” in Dobbs v. Jackson Women’s Health Organization is going to become incredibly intense over the next few months or so. Harvard law professor Noah Feldman’s Bloomberg column yesterday titled “Kavanaugh Is the Last Hope for Abortion Rights” is an early—and, in my judgment, especially implausible—entrant in the “good cop” category.

Feldman’s pitch to Kavanaugh isn’t subtle: Kavanaugh should “decide to become the new Kennedy,” as that is the “only way for him to become a significant justice on the court as currently configured.” “As the swing justice, he would often have the power to decide the law on his own.” Yes, Kavanaugh’s ugly confirmation battle means that “the reputational benefits that Kennedy accrued from his swing justice position”—tributes from liberal law professors, “active admiration and appreciation” from law students—“may be harder for Kavanaugh to obtain.” But Kavanaugh’s “best opportunity” to begin “to achieve something like a sea change in how he is perceived” by liberals is to “redefine himself by reaffirming [Planned Parenthood v.] Casey as binding precedent.” Sure, “even if [Kavanaugh] does pull a Kennedy, liberals might be slow to praise his jurisprudence.” But unless Kavanaugh wants to “accept a kind of permanent, constrained right-wing existence,” he ought to “become the new Kennedy by saving Casey” and by providing “one of the most electrifying moments on the court since the 1992 decision itself.”

As Josh Blackman, who acknowledges that he has been “quite harsh” on Kavanaugh, observes, “this pulp from Feldman is far more demeaning than anything [Blackman has] written.” Feldman, Blackman points out, “talks about everything that [Feldman imagines] will go through Kavanaugh’s mind, except the law!” and thus “truly views Kavanaugh as this Machiavellian, power-hungry, affection-desiring, empty-suited jurisprude.” It is difficult to imagine more insulting cajolerie than Feldman’s.

Like Blackman, I believe that there is zero chance that the craven opportunistic gamble that Feldman invites Kavanaugh to make would pay off. Further (as Blackman also observes), liberal academics never actually respected Kennedy. They pandered to his vanity when they needed his vote, but were eager to jettison him as soon as possible. Perhaps the clearest illustration of this point is the infamous spring 2016 blog post (“Abandoning Defensive Crouch Liberal Constitutionalism”) by Feldman’s HLS colleague Mark Tushnet. Anticipating that Hillary Clinton’s election would usher in a new era for the judiciary, Tushnet culminated his call to judges to “take aggressively liberal positions” by declaring “f*** Anthony Kennedy”—except that Tushnet spelled out the expletive.

More importantly, I expect that Kavanaugh’s jurisprudential principles, including the discussion of precedent that he set forth in his concurrence in Ramos v. Louisiana (2020), will lead him to reject Casey and that he will strive in Dobbs, just as in other cases, to do his constitutional duty, not to aggrandize his own power or to feed his ego.

Relatedly: I’m also surprised by Feldman’s assertion that Chief Justice Roberts “has already signaled that he is likely to join the court’s three remaining liberals in voting to sustain the Casey precedent.” That strikes me as a serious overreading of the Chief Justice’s concurring opinion last year in June Medical Services v. Russo. The Chief Justice emphasized that the parties “agree[d] that the undue burden standard announced in Casey provides the appropriate framework to analyze Louisiana’s law” and that “neither party [had] asked us to re-assess the constitutional validity of that standard.” So I don’t see how his opinion has any bearing on the precedential force of Casey in Dobbs, where the state of Mississippi is urging the Court to overturn Roe and Casey. And, as I will explain in a separate post, I believe that the Chief’s jurisprudential principles should lead him to reject Roe and Casey.

One final small point: Feldman reads a passage in Justice Scalia’s dissent in Lawrence v. Texas (2003) as “blam[ing] … law professors as a collective for a transformational decision in constitutional law.” But Scalia’s reference was to the “law-profession culture,” not to the law-professor culture. The latter is certainly part of the former, and I don’t doubt that Scalia would have agreed that law professors share much of the blame, but the passage itself doesn’t support the particular point Feldman makes.

Law & the Courts

This Day in Liberal Judicial Activism—August 23

(Michael Burrell/iStock/Getty Images Plus)

2006The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.

2019A Ninth Circuit panel rules (in Edmo v. Corizon, Inc.) that the Eighth Amendment requires that the state of Idaho provide—euphemism alert!—“gender confirmation surgeryto a “male-to-female transgender prisoner” suffering from gender dysphoria.

Months later, when the Ninth Circuit denies en banc rehearing in the case, Judge Diarmuid O’Scannlain, joined by eight of his colleagues, will object that the panel decision “is as unjustified as it is unprecedented”:

To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.

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This Day in Liberal Judicial Activism—August 22

Supreme Court Justice Ruth Bader Ginsburg walks in Washington, D.C., January 12, 2016. (Joshua Roberts/Reuters)

2014—Justice Ruth Bader Ginsburg is becoming quite a Chatty Cathy. In a wide-ranging interview, Ginsburg somehow sees fit to offer her views on all sorts of matters. She reveals, for example, that she assigned the dissent in Schuette v. Coalition to Defend Affirmation Action to Justice Sotomayor in order to accommodate Sotomayor’s desire to “quell” the “doubts” that some folks on the Left were having about Sotomayor’s “views on affirmative action.” And at the very time that pending certiorari briefs in cases challenging state marriage laws are debating what the Court’s ruling in United States v. Windsor signifies for those cases, Ginsburg volunteers her view that the “main theme” in Justice Kennedy’s previous rulings involving gay rights is “equal dignity,” not federalism.

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This Day in Liberal Judicial Activism—August 20

(artisteer/Getty Images)

1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law.

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District Court Strikes Down Ban on Removed Aliens’ Re-Entry


In an extraordinary order yesterday in U.S. v. Carrillo-Lopez, federal district judge Miranda Du (D. Nev.) ruled that a core provision of federal immigration law is unconstitutional. Judge Du concluded that section 1326 of Title 8, which imposes criminal penalties on aliens who have been removed and who thereafter re-enter the United States, “violates the equal protection guarantee of the Fifth Amendment.” Specifically, Judge Du determined that section 1326 “was enacted with a discriminatory purpose” and “has a disparate impact on Latinx persons” (she uses the term Latinx 21 times) and that the government “fail[ed] to show that Section 1326 would have been enacted absent racial animus.”

On a quick review of Du’s 43-page order, I have lots of doubts about her reasoning. Here are some of them:

1. Let’s accept for the sake of argument Du’s conclusion that both the enactment in 1929 of the predecessor version of section 1326 and the enactment in 1952 of section 1326 were motivated by discriminatory intent. As she points out, section 1326 was also amended in 1988, 1990, 1994, and 1996 (twice). Du contends that these amendments weren’t “substantive” (because they supposedly didn’t “change the operation of Section 1326”) but instead merely “served to increase financial and carceral penalties.” But surely the increase in those penalties reflects an embrace by each of the enacting Congresses of the substantive provision. They weren’t mere technical amendments. So it’s odd that Du refuses to agree that those actions by later Congresses, which Du doesn’t argue reflected racial animus, suffice to cure section 1326 of its tainted origins.

It’s particularly odd that Du seems to imagine that Congress had to “attempt … to grapple with the racist history of Section 1326 or remove its influence on the legislation.” A provision setting forth criminal penalties for illegal re-entry would seem to be an unsurprising part of a functioning immigration system. Why isn’t it enough that later Congresses—again, Congresses that Du does not allege to have been racially motivated—have made clear their support for such a provision?

2. In finding that section 1326 “has a disparate impact on Latinx persons,” Du rejects the government’s position that geography explains the disparate impact. In her words, “It cannot be the case that the mere over-policing of certain locations—here the Southern border as opposed to the Northern border—prevents a specific group from raising equal protection challenges.” But her contention that the border with Mexico is “over-polic[ed]” compared to the border with Canada makes no effort to address the vast differences between the two borders.

3. Under Du’s reasoning, why wouldn’t enforcement of other ordinary immigration laws also violate equal protection? Why wouldn’t the ban on illegal entry in the first place be unlawful? Surely Du could dig up the same kind and quality of evidence of discriminatory purpose in the past and of disparate impact.

I doubt that even the often very wacky Ninth Circuit will agree with Du’s ruling (though much might depend on the panel draw).


Law & the Courts

En Banc Fifth Circuit OKs Texas Law Barring Live-Dismemberment Abortions


In an important decision yesterday in Whole Woman’s Health v. Paxton, the en banc Fifth Circuit ruled by a vote of 9 to 5 that a Texas law that generally prohibits the live-dismemberment version of the dilation-and-evacuation (D&E) abortion method is permissible under the Supreme Court’s abortion precedents.

Judges Jennifer Walker Elrod and Don Willett jointly authored the lead opinion, which was joined by Judges Edith Jones, Jerry Smith, James Ho, Kurt Engelhardt and Cory Wilson. (Because it garnered only seven of the fourteen votes, it is a plurality opinion, not a majority.) Chief Judge Priscilla Owen wrote an opinion concurring in the judgment, and Judge Catharina Haynes also concurred in the judgment (without opinion). Judge Ho added a concurring opinion. Judge James Dennis, joined by Judges Carl Stewart and James Graves, wrote a long dissent, and Judge Stephen Higginson, joined by Judge Gregg Costa, wrote a short one. (Judges Leslie Southwick, Kyle Duncan, and Andy Oldham all recused.)

Here is an overview:

1. The Texas law, enacted in 2017, provides: “A person may not intentionally perform a dismemberment abortion unless the dismemberment abortion is necessary in a medical emergency.” It defines “dismemberment abortion” as:

an abortion in which a person, with the purpose of causing the death of an unborn child, dismembers the living unborn child and extracts the unborn child one piece at a time from the uterus through the use of clamps, grasping forceps, tongs, scissors, or a similar instrument that, through the convergence of two rigid levers, slices, crushes, or grasps, or performs any combination of those actions on, a piece of a the unborn child’s body to cut or rip the piece from the body.

Like the other D&E versions, live-dismemberment abortion is commonly used in the 15th week of gestation and later.

2. My high-level summary of the Elrod/Willett plurality opinion:

The Texas law prohibits only one particular D&E method and only when a medical emergency does not exist. Doctors can safely use other D&E methods that are already in widespread use.

The district court’s conclusion that the law is a complete ban on standard D&E abortions rests on four errors, each of which independently compels reversal:

a. The district court misapplied Casey’s undue-burden standard by balancing the law’s benefits against its burdens. Under the Chief Justice’s controlling opinion in June Medical, courts should not engage in such balancing. (Pp. 9-14.)

b. The district court slighted or entirely disregarded the state’s interests, even though the Supreme Court had accepted all of these interests in its 2007 ruling in favor of the federal partial-birth abortion law in Gonzales v. Carhart. (Pp. 14-19.)

c. The district court’s myriad and fundamental legal errors mean that no deference is owed to its factual findings. But even with deference, those findings would not demonstrate an undue burden.

The district court incorrectly concluded that there is only one kind of standard D&E abortion and thus wrongly held that the law would result in a complete ban on D&E abortions. It failed to apply the direct teachings of Gonzales. The record shows that performing a D&E that complies with the Texas law, using either suction or digoxin, is safe, effective, and commonplace. (Pp. 19-33.)

d. In a facial challenge, the plantiffs bear the heavy burden of showing that an abortion law would be unconstitutional in a “large fraction of cases.” The district court botched both the numerator and the denominator in the fraction. (Pp. 33-36.)

3. In her opinion concurring in the judgment (pp. 38-53), Judge Owen agrees broadly with the Elrod/Willett opinion. In her view, it is unnecessary to decide whether the Chief Justice’s concurring opinion in June Medical governs how the undue-burden standard applies, for, as she explains, the Texas law is permissible under both the Chief Justice’s approach and the balancing approach.

4. In his concurring opinion (pp. 54-65), Judge Ho explains that the Supreme Court’s abortion precedents are “unequivocal” on the principle that judges “have no business deciding which scientists are right and which are wrong” and, drawing on some very interesting historical examples, warns against “blindly” following the scientists:

Someday, scientists may look back on today’s abortion debates as shocking and barbaric—just as we look back in disbelief at those who ridiculed and ostracized proponents of handwashing and sterilizing surgical instruments to prevent disease and infection.

Ho also points out that Texas abortion law is “more permissive than the overwhelming majority of laws around the world.”

5. Judge Dennis’s dissent (pp. 66-105) contends that the plurality opinion “ignores on-point Supreme Court precedent in multiple ways” and “fails to defer to the district court’s well-reasoned and well-supported factual findings.” He also disputes its application of the “large fraction” analysis for a facial challenge.

6. In his dissent, Judge Higginson argues that, given the plurality’s view that the district court applied the wrong standard, the court should have remanded the case to the district court. He also indicates his view that the Texas law is invalid under Supreme Court precedents.

Law & the Courts

This Day in Liberal Judicial Activism—August 19

The Washington Post Company headquarters in Washington, March 30, 2012 (Jonathan Ernst/Reuters)

2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.

2020—In a divided Ninth Circuit panel ruling in Kipp v. Davis, the majority (opinion by Judge Richard A. Paez, joined by Judge Mary H. Murguia) grants federal habeas relief that reverses Martin Kipp’s conviction and death sentence in state court 33 years ago for first-degree murder and attempted rape. In dissent, Judge Jacqueline Nguyen objects that the majority circumvents the deference to state-court decisions required by the Antiterrorism and Effective Death Penalty Act.

Months later, the Ninth Circuit will deny en banc rehearing by a vote of 15 to 14. Nguyen and her fellow Obama appointee John B. Owens will join twelve Republican appointees in voting for en banc review.