Law & the Courts

Justice Stevens’s Best Opinion

De mortuis nil nisi bonum. Do not speak ill of the dead.

While that proposition surely must expire at some point, it strikes me as good advice to follow in the immediate aftermath of someone’s death. So with that in mind, I’d like to praise Justice John Paul Stevens’s opinion in 1978 in Regents of the University of California v. Bakke.

In that opinion, Justice Stevens concluded that Title VI of the Civil Rights Act of 1964 “stands as a broad prohibition against the exclusion of any individual from a federally funded program ‘on the ground of race.’” (Emphasis in original.) Thus, just as Title VI protected racial minorities, so also it protected Alan Bakke—the white applicant rejected by UC Davis’s medical school—from what Stevens called “‘reverse discrimination’ or ‘affirmative action’ programs.”

As Stevens put it succinctly:

The University, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The University also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statute therefore requires affirmance of the judgment below [in favor of Bakke].

Chief Justice Burger, Justice Rehnquist, and Justice Stewart joined Stevens’s opinion. But Stevens was on the losing end on the Title VI question, as the five other justices ruled that Title VI does not bar all racial discrimination in federally funded programs. (Justice Powell, in his controlling solo opinion, agreed with Stevens that UC Davis had acted unlawfully, but he reached that conclusion based on the Equal Protection Clause.)

Law & the Courts

Sharply Divided Fourth Circuit Rules Against Virginia’s Regulation of ‘Habitual Drunkards’—Part 2

To follow up on my Part 1 post on the Fourth Circuit’s deeply divided en banc ruling in Manning v. Caldwell, here is a quick sketch of how Virginia’s statutory scheme operates and of the legal views set forth in the competing opinions:

1. Virginia law authorizes the state to seek to obtain from a court a “civil interdiction order” against persons it deems to be “habitual drunkards.” The statute does not define the term “habitual drunkards,” nor does it set forth standards governing a court’s determination whether a person qualifies as a “habitual drunkard.” A person facing a court hearing for the possible imposition of a civil interdiction order must receive due notice of the hearing. But if he doesn’t show up for the hearing, the court may still issue an order against him. (The majority somehow seems to find this last feature remarkable, as though a person could ordinarily escape an adverse action by a court by the simple expedient of failing to show up for a hearing.)

Once a person is declared a “habitual drunkard,” he becomes subject to incarceration for possessing, or attempting to possess, alcohol or for being drunk in public. (Individuals of drinking age who have not been declared “habitual drunkards” are, of course, free to possess alcohol, subject to open-container and other restrictions, and they face only a fine of up to $250 for being drunk in public.)

2. On the question whether the Virginia statutory scheme is void for vagueness, the majority and dissent divide sharply on what the standard for unconstitutional vagueness is as well as on whether “habitual drunkard” has a discernible meaning.

a. To the majority, the statutory scheme has an “integrated structure” that “plainly has criminal consequences” and is thus “quasi-criminal in nature”; therefore, “a ‘relatively strict’ test for vagueness applies.” (Slip op. at 11-13.)

In dissent, Judge Wilkinson argues that the statutory scheme has two discrete parts, “one civil and one criminal.” Because the alleged vagueness is only in the first part—the civil determination that a person is a “habitual drunkard”—the vagueness inquiry is lenient. (Slip op. at 69-70, 73-75.)

b. The majority finds the term habitual drunkard impermissibly vague because of “the lack of any guidelines or standards regarding who qualifies” as such. The word habitual “is itself susceptible to numerous interpretations,” and the term drunkard is likewise vague. The fact that the plaintiffs themselves have “acknowledge[d] that they have difficulty maintaining sobriety due to alcoholism does not establish that they are ‘habitual drunkards.’” (Slip op. at 13-23.)

In his dissent, Judge Wilkinson argues that habitual drunkard “is simply not vague under any conceivable standard.” Other courts have found the term sufficiently clear, and many other constitutionally permissible statutes use imprecise terms (such as “crime involving moral turpitude” and “serious potential risk”). By the ordinary dictionary definitions of its two words, the term “requires both a pattern of behavior and a certain form of conduct.” Further, the Virginia courts have held that the term “‘encompasses one who … is admittedly in the continual habit of being intoxicated from alcohol.’” (Slip op. at 70-73.)

On both parts of the vagueness inquiry, I think that Wilkinson clearly has the better of the argument. Plaintiffs’ own acknowledgment that (in the words of the majority) “they have difficulty maintaining sobriety due to alcoholism”—a key predicate of their Eighth Amendment claim—would put them at the core of any definition of “habitual drunkard.” (The severe tension between the vagueness claim and the Eighth Amendment claim presumably explains why plaintiffs chose not to advance their vagueness argument in the earlier proceedings.)

3. The division between the majority and the dissent is even sharper on the Eighth Amendment claim.

As the majority explains, the plaintiffs “allege that their addiction causes them to ‘pathologically pursue alcohol use,’ without any volitional control over their drinking.” (Again, that sure sounds like they’re admitting that they are “habitual drunkards.”) Applying its reading of two Supreme Court rulings from the 1960s, the majority says that a statutory scheme is shown to “target[] [plaintiffs] for special punishment for conduct that is both compelled by their illness and is otherwise lawful for all those of legal drinking age” (emphasis in original) would violate their Eighth Amendment rights. (See generally slip op. at 23-33.) The majority argues that its holding is “narrow.” (See slip op. at 33-36.)

Judge Wilkinson, in dissent, argues that “settled constitutional law” defeats plaintiffs’ Eighth Amendment claim. In particular, he argues that the Supreme Court precedents from the 1960s that the majority invokes make a “status-act distinction” rather than a distinction between volitional and non-volitional conduct: “although states may not criminalize status, they may criminalize actual behavior even when the individual alleges that addiction created a strong urge to engage in a particular act.” Because Virginia’s statutory scheme criminalizes actions, not status, it does not violate the Eighth Amendment. (See generally slip op. at 42-53.) Wilkinson argues that “the potential breadth of the principle espoused by … the majority is staggering.”

I haven’t yet parsed the dispute between the majority and the dissent over how the two Supreme Court rulings from the 1960s should be read. That said, Wilkinson’s account comports with my understanding of what the governing principles have been, and I agree with him that the majority’s ruling has “staggering” implications.

4. For anyone interested in digging deeper into the case, I would recommend Judge Wilkinson’s discussion of the consequences of alcohol-related violence, which “fall hardest on the most vulnerable” (and not on the likes of the blue-chip lawyers who are congratulating themselves for knocking down Virginia’s law). (See slip op. at 53-60.)

The back and forth between Judge Keenan’s concurring opinion (slip op. at 38-39) and a separate special dissent by Judge Wilkinson (slip op. at 79-80) over the vigorous tone of his main dissent is also noteworthy.

I quoted some passages from the opening of Wilkinson’s main dissent in my Part 1 post; his four-paragraph closing section begins: “It is hard to imagine a decision so infused with ruinous consequences or so insensitive to a judge’s inability to rework society from the bench.”

Law & the Courts

This Day in Liberal Judicial Activism—July 18

(Leah Millis/Reuters)

2014In State v. Gleason, the Kansas supreme court expressly acknowledges that the U.S. Supreme Court “has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances.” But the court nonetheless proceeds to rule that sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.”  

A year and a half later (in Kansas v. Carr), the Supreme Court will reverse the Kansas supreme court by a vote of 8 to 1. 

Law & the Courts

Sharply Divided Fourth Circuit Rules Against Virginia’s Regulation of ‘Habitual Drunkards’—Part 1

In an en banc ruling yesterday (in Manning v. Caldwell), the Fourth Circuit ruled by a vote of 8 to 7 that Virginia’s statutory scheme of regulating and prosecuting “habitual drunkards” is unconstitutionally vague and violates the Eighth Amendment rights of alcoholics.

In the lead dissent, Judge Harvie Wilkinson doesn’t hide the extent of his disagreement:

This ought to be a straightforward case. But the majority asks this court to take two unprecedented steps. First, it asks that we find—as no court previously has―that addiction gives rise to an Eighth Amendment right to abuse dangerous substances without the imposition of any criminal sanctions. Second, it insists that we expand vagueness doctrine to invalidate a civil statute that clearly delineates the conduct within its ambit….

Instead of simply applying the law as it is, my colleagues strive for something new; thrusting our court into not one, but two, jurisprudential quagmires. First, the majority has found—in the Eighth Amendment’s prohibition on “cruel and unusual” punishments, of all places―constitutional protection for any act that is alleged to be “non-volitional,” i.e. the result of some compulsion. In doing so, it has discarded any pretense of a workable limiting principle, expanded the Eighth Amendment beyond any discernible limits, and overturned sixty years of controlling Supreme Court precedent.

The majority, in an alternative holding, invokes the Due Process Clause to contort vagueness doctrine beyond recognition. It takes what has heretofore been a limited principle and extends it to a civil statute that is not only clear on its face, but exists solely for the purpose of giving fair notice of what the law requires. The majority’s notion of civil vagueness imperils a whole range of previously uncontroversial statutes….

This case is an assault upon the constitutional, democratic, and common law foundations of American civil and criminal law, and most importantly, to the judge’s place within it.

The majority opinion for eight judges was co-authored by Judge Diana Motz and Judge Barbara Keenan. The six judges who joined it were all appointees of Democratic presidents, except that chief judge Roger Gregory, who was initially recess-appointed to the court by President Clinton, was then, in an unrequited act of goodwill, appointed to a lifetime position by President George W. Bush.

Judges Niemeyer, Duncan, Agee, Richardson, and Quattlebaum, all appointees of Republican presidents, joined Wilkinson’s dissent. (The case was argued before Judge Allison Jones Rushing filled Duncan’s seat.) In addition, Judge Albert Diaz, appointed by President Obama, issued his own dissent in which he stated his “agree[ment] with the substance of Judge Wilkinson’s dissent regarding the merits of this case.”

In my Part 2 post, I will discuss how Virginia’s statutory scheme operates and explore the legal views set forth in the competing opinions.

Law & the Courts

Is This the “New Normal” for the Confirmation Process?

(Photo: Photographerlondon/Dreamstime)

“The new normal” refers to a new standard or baseline expectation. Now, 30 months after Donald Trump entered the Oval Office, the Senate’s new normal for considering judicial nominations seems to be raw, partisan politics that all but ignores the qualifications of nominees.

How partisan is it? The average Democratic senator has now voted against 48 percent of Trump’s judicial nominees. And no Democrat has voted against fewer than 26 percent of the nominees.

This unprecedented opposition has nothing to do with the nominees’ qualifications. Compared to nominees presented by Barack Obama, George W. Bush, or Bill Clinton, Trump’s nominees have received comparable or higher ratings from the American Bar Association. The ABA is a useful source here for two reasons. First, Democrats have often said that ABA ratings are the “gold standard” for evaluating judicial nominees. Second, at least four studies (here, here, here, and here) have shown systematic ABA bias against Republican nominees.

Partisan opposition to Trump judicial nominees may be standard confirmation procedure today, but it’s far from normal. Go back as far as you want. During the first 30 months of the previous six presidents, the average senator of the other party voted against only three percent of judicial nominees. Add another Republican and another Democrat – all the way back to President John F. Kennedy – and the average drops even further.

Democratic opposition to Trump’s judicial nominees today, therefore, is more than 16 times what it was in the past. If that’s not abnormal, I don’t know what is.

The only thing that does explain this confirmation transformation is the identity of the president making these nominations. Senate Democrats – not individual senators, but the entire Democratic Caucus – have decided to treat Trump’s judicial nominees as proxies for Trump himself. They have turned the confirmation process into another front in their war against Trump.

This new battle plan rejects how America’s founders designed the judicial appointment process. The Constitution gives the power to appoint judges to the president, not to the Senate. America’s founders designed the Senate’s role of “advice and consent” to be, as Alexander Hamilton wrote, a “silent operation,” an “excellent check” that would “tend greatly to prevent the appointment of unfit characters.”

Through nearly all of American history, only a small number of “unfit characters” were nominated, and their unfitness was evident from their qualifications and record. For most Democrats today, “unfit characters” are a large group, defined not by their qualifications but by one common factor: they were nominated by President Donald Trump. Period. This is certainly new, but it is not normal by any measure.

Law & the Courts

Third Circuit Rejects Premise of Supreme Court’s Little Sisters Ruling

Three years ago, in Zubik v. Burwell, the Supreme Court issued a brief unanimous ruling in the challenges brought by the Little Sisters of the Poor and various other religious nonprofits against the Obama administration’s so-called “accommodation” to its HHS contraceptive mandate. Noting “the gravity of the dispute and the substantial clarification and refinement [following oral argument] in the positions of the parties, the Court sent the challenges back to the lower courts. In so doing, it declared that “the parties [the challenger petitioners and HHS] on remand should be afforded an opportunity to arrive at an approach going forward that accommodates petitioners’ religious exercise while at the same time ensuring that women covered by petitioners’ health plans receive full and equal health coverage, including contraceptive coverage.” (Internal quote omitted.) The Court expressed its hope that the lower courts would “allow the parties sufficient time to resolve any outstanding issues between them.”

The Court’s disposition in Zubik was clearly premised on the proposition that HHS had ample regulatory authority to adjust its own mandate and to craft a satisfactory resolution. That proposition did not surprise anyone: it was one area of common ground from the outset between the Obama administration and those challenging the HHS contraceptive mandate, and it underlay the Court’s 2014 holding in Burwell v. Hobby Lobby Stores that HHS had available means of serving its interest in contraceptive coverage that were less restrictive of religious liberty. (The dissenters in Hobby Lobby disagreed that the HHS contraceptive mandate did not satisfy the Religious Freedom Restoration Act, but they did not contest, and indeed embraced, the breadth of HHS’s regulatory authority.)

Accepting the Court’s invitation in Zubik to try to resolve the ongoing litigation, the Trump administration’s HHS issued two interim final rules in October 2017 that altered the Obama administration’s accommodation. A year later, after notice-and-comment rulemaking, HHS issued final rules to the same effect. (HHS’s regulatory steps here—interim rule followed by notice-and-comment rulemaking, followed by final rule—were the same steps that the Obama administration had used to adopt the contraceptive mandate in the first place and to develop its religious exemption and accommodation.) The final rules leave most employers subject to the contraceptive mandate, but they allow religious and moral objectors to exclude objectionable coverage from their plans. At the same time, a parallel HHS rulemaking allowed women who were not able to obtain coverage from objecting employers to seek government-funded contraceptives instead.

That everyone understood HHS to have broad regulatory authority to revise its contraceptive mandate does not, of course, mean that that understanding was legally sound. But it does mean that you’d expect a court that rejects that understanding both to acknowledge that it is repudiating the premise of Zubik and to provide a persuasive account why it is doing so.

Unfortunately, the Third Circuit’s perplexing panel decision last Friday in Commonwealth of Pennsylvania v. President United States of America (yes, that’s the odd case caption) fails on these and other measures. Let’s take a look at the decision, authored by Judge Patty Schwartz and joined by Judges Theodore McKee and Julio Fuentes (all appointees of Democratic presidents):

1. The panel takes a remarkably crabbed view of HHS’s authority under the Affordable Care Act (aka Obamacare), and it makes no effort to reconcile that crabbed view with the Supreme Court’s understanding of HHS’s regulatory authority in Zubik and Hobby Lobby or with the Obama administration’s own understanding (much less with the Obama administration’s freewheeling resort to waivers and other makeshift maneuvers in implementing the ACA). The panel argues that the ACA requires that all group health plans provide the preventive care services that HHS determines. In its view, HHS’s authority to issue “comprehensive guidelines” concerning preventive care for women “concerns the type of services that are to be provided and does not provide authority to undermine Congress’s directive concerning who must provide coverage for these services.” (Slip op. at 42-43.)

Under the panel’s reasoning, the Obama administration would have lacked statutory authority both for its initial exemption for some religious entities and for its later accommodation. The panel weakly addresses this objection in a footnote (note 26, pp. 43-44). It asserts that “Supreme Court precedent dictates a narrow form of exemption for houses of worship.” But that was not the ground on which the Obama administration created the exemption, and, contrary to the precedent the panel cites, the exemption is not limited to “ministerial” employees. The panel’s explanation of how the accommodation would survive its analysis is also feeble: it says that the accommodation merely “provides a process through which a statutorily identified actor ‘shall provide’ the mandate coverage.” The panel ends this footnote with a whimper: “In any event, the Agencies’ authority to issue the Church Exemption and Accommodation is not before us.”

(The panel makes another argument that hinges on the omission in one provision of the word “the.” The fact that the supposedly critical omission is in fact inconsequential is illustrated by the panel’s inadvertent insertion of that word when it misquotes the provision: “Congress addressed the women’s preventive care guidelines that were yet to be promulgated by stating ‘as provided for in the comprehensive guidelines.’” Slip op. at 44 (emphasis added). It’s interesting that all the judges and their clerks somehow missed this.) [Update (7/18): The panel has now fixed this error.]

2. The panel’s conclusion that the Religious Freedom Restoration Act does not authorize HHS’s final rules (slip op. at 46-51) is also unpersuasive.

The panel argues that RFRA “does not require” the religious exemption in the final rules. At the same time, it concludes that the Little Sisters of the Poor “lack appellate standing” in the case because they, like every other religious organization that has fully litigated a RFRA challenge to the Obama administration’s accommodation, already have obtained injunctive relief. (See note 6, pp. 17-18.) In concluding that the new rule is unnecessary because the accommodation “did not infringe on the religious exercise of covered employers,” the panel relies on the reasoning in a circuit precedent that the Zubik Court vacated. That reasoning is highly dubious and in conflict with the many courts that have granted relief to challengers. The panel also made no attempt to address the “substantial clarification and refinement in the positions of the parties” that the Zubik Court said warranted remand.

Further, the panel assumes without explanation that RFRA authorizes agencies to do no more than grant relief from rules that would otherwise violate RFRA. But why isn’t it more sensible to read RFRA as allowing an agency to afford ample breathing room to the exercise of religious liberty? That is clearly how the Supreme Court read RFRA in Hobby Lobby (“RFRA surely allows” the government leeway to modify existing programs) and in Zubik (which expected the parties to reach resolution without a RFRA ruling).

3. The panel’s holding that Pennsylvania and New Jersey have standing to challenge HHS’s new final rules is also dubious. That holding rests on the supposed showing that women in those states will lose their employer-provided contraceptive coverage under the new rules and will “seek out state-sponsored programs providing contraceptive services” or “forego contraceptive use, causing the States to shoulder the costs of unintended pregnancies.”

But the panel acknowledges that the states have been unable to identify a single woman who would be affected by the new rules. Further, there is ample reason to believe that any religious employer who challenged the pre-existing accommodation would be able to receive the same injunctive relief that the Little Sisters of the Poor and other challengers have received. So it is not at all clear that the new rules would impose any costs on the states.

Let’s hope that the Third Circuit revisits this ruling en banc. If not, it will soon be time for Round Three in the Supreme Court.

Law & the Courts

This Day in Liberal Judicial Activism—July 17

Illinois state senator Barack Obama in 2004. (Tim Boyle/Getty)

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

Law & the Courts

D.C. Circuit Victory for President Trump

Last August, in what the Washington Post hailed as a victory for federal-employee unions, federal district judge Ketanji Brown Jackson wrote a 119-page opinion enjoining executive-branch officials from implementing provisions of three of President Trump’s executive orders that (in the Post’s summary) “aimed at making it easier to fire employees and weaken their representation.”

But in a unanimous ruling today by an ideologically diverse panel (in American Federation of Government Employees v. Trump), the D.C. Circuit held that the district court lacked jurisdiction to decide the case, as a federal statute vests adjudication of federal labor disputes in the Federal Labor Relations Authority, subject to direct review only in the D.C. Circuit. Judge Thomas Griffith wrote the panel opinion, which was joined most notably by Obama appointee Sri Srinivasan as well as by Bush 41 appointee Raymond Randolph.

Law & the Courts

Judicial-Nominations Update

The number of judicial vacancies continues to gradually tick downward.  Last week the Senate voted to confirm four more judicial nominees, including Dan Bress, President Trump’s newest court of appeals judge on the Ninth Circuit. This week the Senate is in session again and poised to confirm Peter Phipps to a vacant seat on the Third Circuit.  Phipps’ confirmation vote is currently scheduled for 3:00pm today.  If confirmed, Phipps would be the 43rd circuit court judge confirmed since Inauguration Day.

On Wednesday, the Senate Judiciary Committee is slated to have a nominations hearing, with the nominees still to be announced as of this writing.  On Thursday, the Committee will hold an executive business meeting to consider the nominations of several judicial nominees.

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

Current and known future vacancies:  141

Courts of Appeals:  6

District/Specialty Courts*: 135

Pending nominees for current and known future vacancies:  58

Courts of Appeals: 2

District/Specialty Courts*: 56

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination


Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
Halil Suleyman “Sul” Ozerden 6/24/19 22 Yes TBD

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date

Court of Appeals Nominees Awaiting Senate Floor Votes

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Peter Phipps (3rd) 5/13/2019 64 6/20/2019

Nominees Awaiting Floor Votes: 40

Courts of Appeals: 0

District/Specialty Courts: 40

Days Pending

  • # of pending nominees originally nominated > 500 days ago: 0
  • # of pending nominees originally nominated > 400 days ago: 12
  • # of pending nominees originally nominated > 300 days ago: 17

Nominees Confirmed by the Senate during the 116th Congress: 44

Supreme Court: 0

Courts of Appeals: 12

District/Specialty Courts: 32

Nominees Confirmed by the Senate since Inauguration Day: 129

Supreme Court: 2

Courts of Appeals: 42

District/Specialty Courts: 85


Law & the Courts

This Day in Liberal Judicial Activism—July 16

(Photo Illustration: NRO)

2014Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed and in which “arbitrary factors … determine whether an individual will actually be executed.” 

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.  

In November 2015, a Ninth Circuit panel, without reaching the substantive merits of Carney’s ruling, will reverse his order on procedural grounds. 

Law & the Courts

Re: Ninth Circuit Victory for Trump Administration’s Defunding of Planned Parenthood

As I reported nearly a month ago, on June 20, in a notable victory for the Trump administration, a Ninth Circuit panel granted the motion by the U.S. Department of Health and Human Services for a stay of orders of three separate district courts that preliminarily enjoined HHS from implementing its revised Title X regulations imposing restrictions on funding of pre-pregnancy family planning services.

Some interesting things have happened since then:

First, on July 3, the Ninth Circuit granted rehearing en banc of the matter and ordered that the panel’s ruling “shall not be cited as precedent” in the Ninth Circuit.

One experienced court-watcher told me that he found it extraordinary that the Ninth Circuit would grant rehearing en banc on a motion for a stay (as distinct from a final ruling on the appeal). That action presumably had something to do with the subject matter of the motion, the existence of a majority of liberal judges on the Ninth Circuit, and the fact that the panel ruling was issued by three Republican appointees.

Second, just last Thursday, July 11, the eleven-member en banc panel selected to handle the rehearing denied motions to stay the original panel’s June 20 stay order. (See Circuit Rule 35-3 for more on the Ninth Circuit’s unique “limited en banc court.”) The panel divided seven to four, with the four dissenters being the Democratic appointees on the panel. The original panel’s stay order thus remains in effect.

It’s interesting that seven Republican appointees were drawn for the limited en banc panel. Three Democratic appointees recused themselves from the matter, so that would mean, I think, that the draw of ten judges (on top of the chief judge, Democratic appointee Sidney Thomas, who sits on every limited en banc panel) occurred from a pool of twelve Democratic appointees and eleven Republican appointees.

There is obviously some luck in drawing seven Republican appointees from that pool, but President Trump’s impressive success in rebalancing the composition of the Ninth Circuit made the odds much less formidable than they previously were.

Law & the Courts

This Day in Liberal Judicial Activism—July 15


2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.  

Law & the Courts

This Day in Liberal Judicial Activism—July 14

1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson (in Ferdon v. Wisconsin Patients Compensation Fund), rules that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).  

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”  

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”  

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions): 

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life. 

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue. 

Law & the Courts

This Day in Liberal Judicial Activism—July 13

2006In  United States v. McCotryfederal district judge David F. Hamilton invokes “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances.  One year later, a unanimous Seventh Circuit panel will reverse Hamilton’s ruling. 

In March 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to an appellate seat.

Law & the Courts

This Day in Liberal Judicial Activism—July 12

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

2016—Reversing the district court, a divided panel of the Tenth Circuit rules (in Planned Parenthood Association of Utah v. Herbert) that the Planned Parenthood Association of Utah is entitled to a preliminary injunction preventing Utah state agencies from implementing the governor’s directive that they stop channeling federal funds to PPAU. The “Factual background” in Judge Mary Beck Briscoe’s majority opinion reads in places like a Planned Parenthood press release. It even obscurely cites a Huffington Post article as authority for her dubious contentions. Worse, in determining that the governor acted in retaliation for PPAU’s exercise of its constitutional rights, Briscoe overrides the district court’s factual findings and draws highly speculative inferences that ignore the obvious reality that the governor was acting in response to concerns that PPAU was complicit in harvesting the body parts of aborted babies.

Three months later, Judge Neil Gorsuch, joined by three colleagues, will dissent from the Tenth Circuit’s denial of en banc review of Briscoe’s ruling.

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