Law & the Courts

‘Gay Rights Are Under Siege in This Country’?!?

Wow. How stupid, or ideology-blinded, does Jeffrey Toobin take his New Yorker readers to be?

In a piece titled “The Right Wing’s War on the L.G.B.T.Q. Community,” Toobin asserts in his opening sentence: “An Arizona Supreme Court ruling on Monday provided further evidence that gay rights are under siege in this country.” Toobin objects specifically to that court’s ruling that the two owners of Brush & Nib Studio, an online art business (run, for what it’s worth, out of the home of one of the owners), have free-speech and free-exercise rights under the Arizona constitution that entitle them to decline “to create custom wedding invitations celebrating same-sex wedding ceremonies in violation of their sincerely held religious beliefs.”

Amazingly, Toobin dismisses as “to put it charitably, … nonsense” the majority’s declaration that “the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive” but instead “are for everyone.” According to Toobin, the owners of Brush & Nib Studio “are free to believe anything they want,” but “[w]hat they should not be allowed to do is to use those beliefs to run a business that is open to the general public but closed to gay people.”

Toobin’s claim is confused. For starters, as the majority opinion makes clear, the owners of Brush & Nib Studio haven’t “closed” their business “to gay people.” They “will create custom artwork for, and sell pre-made artwork to, any customers, regardless of their sexual orientation.” What they won’t do, pursuant to the operating agreement that governs their business, is create “custom artwork that communicates ideas or messages … that contradict biblical truth, demean others, endorse racism, incite violence, or promote any marriage besides marriage between one man and one woman, such as same-sex marriage.”

It’s not clear whether Toobin’s statement of what the studio owners “should not be allowed to do” is his own judgment of what the law should be or his assertion of what the law is. Insofar as it’s the former, does Toobin really believe, say, that a free-lance writer shouldn’t, based on his ideological or religious beliefs, be able to turn down some requests for his work? Or that the existence of a public-accommodations law should somehow necessarily trump freedom of speech and religion? Insofar as Toobin purports to be stating what the law is, his brief analysis is (to borrow his own words) “to put it charitably, … nonsense.” The federal constitutional issues are much weightier than his cursory discussion would indicate (see, for example, the amicus brief that the Cato Institute, Dale Carpenter, and Eugene Volokh submitted in support of Brush & Nib Studio), and he doesn’t even acknowledge, much less grapple with, the fact that the Arizona ruling rests on state constitutional grounds.

As for Toobin’s broader characterizations: The gay-rights movement won massive (and, in my judgment, undeserved) victories when the Supreme Court invalidated the federal Defense of Marriage Act and imposed a federal constitutional right to same-sex marriage. The idea that those who resist being conscripted to celebrate same-sex marriage are the aggressors in a “war on the L.G.B.T.Q. community” is quite extraordinary. Anyone who wants to purchase customized invitations for a same-sex wedding has a zillion options to choose from. That’s some “siege.”

Law & the Courts

This Day in Liberal Judicial Activism—September 20

Ultrasound of fetus at 20 weeks. (Letuve/Dreamstime)

1972—In Abele v. Markle, a divided three-judge district court rules that Connecticut’s recently re-enacted abortion law is unconstitutional.

Judge Jon O. Newman’s majority opinion is said to have considerably influenced Justice Blackmun’s opinion four months later in Roe v. Wade, and the two opinions do indeed share glaring defects. Newman contends that it is merely a matter of “personal judgment” whether the human fetus is a human being from the moment of conception or is “merely a mass of protoplasm,” and “not a human being in any sense,” “until it is born.” In a stunning display of confusion, he even posits that the “unfertilized egg” (emphasis added) has the same capacity as the human fetus “to become a living human being.” And in dictum he suggests that the “concept of viability” identifies when the state interest in protecting the lives of the unborn might be sufficiently weighty (because able to “be shown to be more generally accepted”—whatever that means) to allow a general bar on abortion.

In dissent, Judge T. Emmet Clarie observes (among other things) that the Connecticut legislature “was undoubtedly aware that biologists, fetologists, and medical science commonly accept conception as the beginning of human life and the formation of an individual endowed with its own unique genetic pattern.” As he aptly puts it:

“It is nothing less than judicial usurpation of a legislative prerogative to decide that at one point in fetal development, through an obscure process of legal metamorphosis (in this case, the degree and quality of ‘public acceptance’) the state may constitutionally protect fetal life, but that prior to such point in time, the state may not protect what it also regards, with substantial popular and medical justification, as human life.”

2010—Federal district judge Harold Baer (of the Southern District of New York) orders two law firms in securities litigation in his court to “make every effort” to assign at least one woman and one minority lawyer to the litigation. Purporting to exercise his authority to ensure that counsel for a class of plaintiffs has the “ability to adequately represent the interests of the class,” Baer reasons that the law firms representing a proposed class of plaintiffs who were “arguably from diverse backgrounds” should ensure racial and gender diversity in their legal teams.

But is it really Baer’s position that the racial and gender diversity of counsel are pertinent to their ability to represent the interests of the class in this litigation? And if Baer has the authority to order this diversity, why not also micromanage the firms’ compensation systems to achieve Baer’s vision of race and gender equity?

Weeks later, Baer backpedals from his order, even as he states that it “never seemed so outlandish to me.”

Law & the Courts

Title VII Amicus Brief of Religious Organizations: Don’t ‘Open the Floodgates’

In an amicus brief in one of the Title VII cases pending before the Supreme Court, a coalition of seven national religious organizations—including the United States Conference of Catholic Bishops, the Ethics and Religious Liberty Commission of the Southern Baptist Convention, and the Anglican Church in North America—warns that a ruling that Title VII’s ban on discrimination based on “sex” extends to discrimination based on gender identity “would open the floodgates to a host of problems, including for persons and institutions with religious and moral convictions about sexual identity and sexual difference.”

As the brief points out, when a legislature “creates a new right, it can fashion a comprehensive code that anticipates problems, provides definitions, sets out important qualifications, articulates exceptions, and allows or requires accommodations for religious and other objectors.” By contrast, when courts invent or redefine a new right, they must proceed case by case and thus “cannot, in systematic fashion, anticipate, prevent, or ameliorate the serious religious and other burdens that such a redefinition can be expected to create.”

The brief explains that “[i]nterpreting Title VII’s ban on sex discrimination to reach gender identity would entangle the Judiciary in a constitutional and statutory thicket.” It surveys the “vexing questions [that] will be multiplied and amplified” for churches (pp. 10-14), religious schools (pp. 15-17), religious charities (pp. 17-18), individual religious believers (pp. 18-20), health-care services (pp. 21-25), and all schools subject to Title IX (pp. 25-27).

Here is an excerpt from the brief’s discussion regarding churches (emphasis in original):

Given its expressive mission, a church understandably and legitimately may wish to hire only those whose speech and conduct is consistent with its own teaching. It could sow confusion among the members of a church (and the public) if in contravention of the church’s religious beliefs it were, for example, forced to hire or retain an individual who publicly violates the church’s teaching on a significant moral issue.

For many churches, this religious teaching includes acceptance of—indeed, celebration of and gratitude for—one’s created nature as male or female and the moral norms associated with sexual identity and differentiation. Men and women are often the beneficiaries of church ministries and outreach based on their distinctive needs as men and women. This includes programs and activities that are premised on or promote a theologically-shaped understanding of human sexual difference. A church would not be able to effectively minister to, or meet the distinctive needs of, men and women were it forced to hire and retain people who reject or, by word or conduct, contradict this vision of human sexual difference and its moral consequence even for themselves.

If, for argument’s sake, a church were required to hire or retain a “gender-transitioning” employee under the theory that “sex” discrimination means “gender identity” discrimination, it would set the stage for associated “harassment” claims when the church—in salutations and use of pronouns, for example—refers to the employee in the workplace by his or her actual sex, thus pitting the claim to be free of gender identity “harassment” against the free speech, free exercise, and associational rights of the church, its members, and other employees. In addition, if the church, adhering to its own religiously-held view of sexual difference, were to continue arranging restroom and locker room access based on biological sex, notwithstanding an employee’s self-designated gender identity, it may find itself charged with gender identity discrimination. Alternatively, if the church were to allow access to restrooms and locker rooms on the basis of gender identity, it may precipitate competing claims by co-workers that their right to be free of unwelcome contact with members of the opposite sex in a state of undress has been compromised in violation of a more traditional understanding of sex discrimination.

In short, compelling a church by law to hire and retain employees who, by speech or conduct, do not espouse or have not integrated its mission and message into their own lives, or who by their speech or conduct contradict that message, would invariably bring harm to a church. It would also undercut the church’s right to decide for itself what its mission and message are. And if churches were forced to hire and retain such employees, it would almost certainly bring in its wake the sorts of intractable harassment, privacy, free speech, religious liberty, and associational claims described above.

Law & the Courts

This Day in Liberal Judicial Activism—September 19

1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).


Why Barronelle Stutzman’s Case Might Resolve Questions Left Open in Masterpiece Cakeshop

Floral artist Barronelle Stutzman of Arlene’s Flowers in Richland, Wash. (Alliance Defending Freeedom)

The First Amendment of the Constitution guarantees that every American enjoys the right to speak freely and to freely exercise our faith. That is true no matter how strongly we may disagree and debate with one another. But when the Supreme Court redefined what marriage means in Obergefell v. Hodges, many questioned if any of us would remain free to live out the belief that marriage is the union of one man and one woman.

That is a serious question: Both before and after Obergefell, government officials have been using the laws to crush creative professionals who created custom art celebrating marriage between a groom and bride — but could not in good conscience use their talents to celebrate any other form of marriage.

One of the first attacks landed in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case I was privileged to argue at the U.S. Supreme Court in 2017. My client, Jack Phillips, is a cake artist in Colorado who serves anyone but cannot communicate every message or celebrate every event through his art. So when asked to create a custom wedding cake for a same-sex marriage, he respectfully declined. Rather than respect his faith and conscience, Colorado prosecuted Jack.

In Jack’s case, the Colorado Human Rights Commission demonstrated outrageous hostility toward his faith. For example, it punished Jack for declining to create a cake celebrating same-sex marriage while allowing three other cake shops to decline requests for cakes criticizing same-sex marriage.

That hostility did not fly at the Supreme Court, which pointed out that Jack’s beliefs about marriage “are protected views and in some instances protected forms of expression.” And in a strong 7–2 decision, it held that Colorado’s commission denied Jack the “fair and neutral enforcement” of its laws.

Yet that left open another question posed by Jack’s case: Even if Colorado applied its laws fairly and neutrally (or at least hid its hostility), could it have forced Jack to celebrate a wedding in conflict with his religious beliefs?

That question may be answered in a very similar case, Arlene’s Flowers v. State of Washington.  In Arlene’s, floral artist Barronelle Stutzman practices her art as does Jack — serving everyone but declining to celebrate same-sex marriage through her custom art.

That distinction is clear in Barronelle’s case: For almost a decade she served gay partners Rob and Curt, providing custom arrangements for Valentine’s Day and their anniversaries. It didn’t matter that they were gay, and they were much pleased by her intricate creations.

But Barronelle’s faith teaches her that marriage is a sacred and unique union between one man and one woman, and that all wedding ceremonies are inherently religious events. So when Rob asked her to do the one thing Barronelle cannot do for anyone — use her talent to take part in celebrating a wedding that conflicted with her faith and conscience — she gently took his hands and explained why she could not do what he requested. They chatted a bit about his wedding plans; she recommended some other florists, and they hugged as they parted. Clearly, this is a case where the issue was not the person but the event.

Nonetheless, the Washington attorney general sued Barronelle — both as a business owner and as an individual, putting almost everything she owns at risk — and in the course of the case amply displayed his hostility toward religion.

Barronelle’s case has already made it up to the Supreme Court once. Shortly after Masterpiece was decided, the high court reviewed her case, vacated the Washington supreme court’s decision against her, and sent it back to the lower state court for reconsideration.

Unfortunately, the Washington supreme court sidestepped Masterpiece’s condemnation of religious hostility and ruled against Barronelle again.

So on Sept. 11, Barronelle filed another petition with the U.S. Supreme Court, challenging the Washington court’s failure to properly address the open hostility against her faith and squarely posing the unanswered question from Masterpiece: Does the First Amendment permit the state to force Barronelle to use her art to celebrate a marriage that conflicts with her faith — and even force her to attend and take part in such a wedding ceremony?

That question must be soon answered because across America there are calligraphers, hand-painters, filmmakers, photographers, and many more forced to close their wedding businesses or threatened with punishment and even jail time if they don’t join in celebrating weddings that violate their faith.

I know because my colleagues and I at Alliance Defending Freedom represent many of these artists, including Telescope Media Group, which recently won its case before the U.S. Court of Appeals for the 8th Circuit, and Brush & Nib Studio, whose owners, Joanna Duka and Breanna Koski, just achieved victory at the Arizona Supreme Court. As that court wrote, “Duka and Koski’s beliefs about same-sex marriage may seem old-fashioned, or even offensive to some. But the guarantees of free speech and freedom of religion are not only for those who are deemed sufficiently enlightened, advanced, or progressive. They are for everyone.”

No American should be punished or jailed because she serves all people but declines to create art that celebrates same-sex weddings. However much we disagree on what marriage means, we should agree that the government should not tell creative professionals what they must celebrate through their art.

Law & the Courts

This Day in Liberal Judicial Activism—September 17


A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts. In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990. During his tenure on the Court, Souter proceeds to misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.

Law & the Courts

Politics and the Supreme Court

(Brendan McDermid/Reuters)

“We must never forget that it is a constitution we are expounding,” cautioned John Marshall, one of the first Chief Justices of the U.S. Supreme Court. Marshall, speaking almost exactly two hundred years ago for the Court in McCulloch v. Maryland, had foresight. Forgetting what a constitution is, and what that implies for expounding it, is the central political problem of our day. Constitution Day, September 17th, the date on which the Framers of the Constitution signed the nation’s charter into law, is an opportunity to remember – and take warning.

Judicial independence is the crowning glory of the American constitutional system, and the Supreme Court’s singular commitment to the Constitution and laws of the Republic – with its concomitant determination to avoid political entanglements – is the brightest jewel in that crown. To those who questioned whether a federal court system was appropriate in a nation of limited central government, Alexander Hamilton famously defended the co-equal role of the federal judiciary in Federalist 78 by contending that the judicial branch would “always be the least dangerous to the political rights of the Constitution,” because it would be least capable of imposing its will on the other branches and the People.

Federal courts have no army at their command, no police force to enforce their decrees. The judiciary, Hamilton said, has “neither force nor will, but merely judgment.” The power of the Federal Marshal’s Office may cow an individual litigant into compliance with a court’s injunctive order, but the broader authority enjoyed by the Supreme Court and the federal courts of appeals can only depend on respect for the Rule of Law and the courts’ unique place in upholding that principle. The Rule of Law doesn’t just depend upon respect for the courts – it is respect for the courts. Federal judges – alone among federal officials – have lifetime tenure in their jobs to insulate themselves from pressures that would inevitably arise from the need to stand for election or to secure political appointment or re-appointment.

For this reason, the Supreme Court ought to be respected in its inurement from the political forces that – by constitutional design – perpetually crash like storm waves against the Congress and the president. Once the Justices begin to decide disputes with an eye toward the impact their decisions may have on the country’s often-heated heated political discourse, not only the trust reposed on the judicial system by litigants, but even more importantly the meaning of the law itself – of federal statutes and constitutional provisions – is subject to distortion for political ends.

That’s why a “friend of the Court” brief five U.S. Senators filed recently with the Supreme Court should unsettle anyone who values the Court’s constitutionally safeguarded independence. “The Supreme Court is not well. And the people know it,” Senator Sheldon Whitehouse of Rhode Island and his collaborators told the Court in a case involving the scope of the Second Amendment’s “right to bear arms.” “Perhaps the Court can heal itself before the public demands it be ‘restructured in order to reduce the influence of politics.’” The brief can’t be taken as anything but a crudely-veiled warning that if the Justices fail to reach the “right” result, the U.S. Senate would consider extreme political retribution — such as “packing the Court” with additional “right-thinking” jurists, as some threatened to do to protect President Franklin Roosevelt’s New Deal programs. Thankfully, fifty-three senators penned a powerful reply to the “Gang of Five,” reminding the Justices that “Judicial independence is not negotiable…. Our constitutional republic depends on an independent judiciary ruling impartially on the basis of what the law says.”

A ready handful of hot topics come up when the discussion turns to “political” questions the Supreme Court faces from time to time: electoral gerrymandering, the “right to bear arms,” Bush v. Gore, and the like. But abortion stands alone as the most potently corrosive force in modern constitutional jurisprudence. The demand for abortion distorts every doctrine of constitutional law it touches, from the Article III requirement for constitutional standing and the Fourteenth Amendment right of due process, to the First Amendment free speech rights of pro-life advocates and the free exercise rights of pro-life doctors, nurses and pharmacists. Beginning with Roe in 1973, the rush by activist judges to ignore medical science, history, and judicial precedent in order to erect a high wall against virtually every reasonable restriction on abortion has no parallel in American law, save for the country’s shameful denial of the humanity and dignity of  persons for their racial heritage. Members of the Supreme Court have described judicial review in abortion cases as an “ad hoc nullification machine” for laws restricting abortion, and charged that abortion has worked “a major distortion in the Court’s constitutional jurisprudence.”

Clearly, Roe needs to go. But there is apparently at least a three-Justice bloc – Chief Justice John Roberts, Samuel Alito, and Brett Kavanaugh – that believes that “special justification,” more than mere constitutional error, is required to overturn precedent. Likewise, many have suggested that the Court would or should wait for more than a bare one-member majority to overturn Roe. But neither a “special justification” nor a felt need on the part of the Court’s conservatives to avoid a narrow and vociferous public split made any difference in 2010 in Citizens United v. FEC, in last year’s decision in Janus v. AFSCME (no forced subsidization of public sector unions), or this year in Franchise Tax Board v. Hyatt (states can’t be sued in courts of other states), all 5-4 decisions. Just a week after the Court issued Franchise Board Board, Justice Sotomayor and the four other liberal Justices, joined by Justice Neil Gorsuch, voted in Herrera v. Wyoming to overturn an over one-hundred-year-old precedent and uphold the validity of a Crow Indian treaty from 1868. The Justice’s debates over whether and when to overturn precedent have at times been confusing and amusing, as both conservatives and liberals have postured themselves as the defenders of precedent, and by extension, of the Rule of Law and even the Supreme Court itself. But throughout these debates, Roe’s vulnerability has been the subtext of the conflict.

Webster v. Reproductive Health Services in 1989 bruited this debate in the context of a Missouri abortion control statute. Justice Anthony Kennedy wrote to Chief Justice William Rehnquist shortly before the Court’s decision regarding Rehnquist’s draft opinion for the Court, and cc’d  the Justices who would make up the Webster majority – Byron White, Sandra Day O’Connor and Antonin Scalia. Kennedy told Rehnquist:

I am in substantial agreement with your excellent opinion in this case. As you know, in my view the case does provide a fair opportunity to assess the continuing validity of Roe v. Wade, and I would have used the occasion to overrule that case and return this difficult issue to the political systems of the states. But overruling Roe is not a strict necessity here, so I anticipate being able to join an opinion for the Court as you have circulated it …

The Court’s plurality, with Chief Justice Rehnquist writing, upheld provisions of Missouri’s abortion statute, but expressly refused to overturn Roe, in a part of the decision in which Justices White and Kennedy joined. “This case therefore affords us no occasion to revisit the holding of Roe … and we leave it undisturbed,” the Court’s plurality said.

Justice Scalia was disappointed and direct, saying he would have overturned Roe, and charging the court with “contriv[ing] to avoid doing it.” Scalia demonstrated a thoughtful understanding of the question politics should (and should not) play in the Court, arguing that avoiding a constitutional question because of concerns external to the case like public response is, itself, “political” and injurious to the Court’s integrity and reputation:

The outcome of today’s case will doubtless be heralded as a triumph of judicial self-awarded sovereignty over a field where it has little proper business since the answers to most of the cruel questions posed are political and not juridical – a sovereignty which therefore quite properly, but to the great damage of the Court, makes it the object of the sort of organized public pressure that political institutions in a democracy ought to receive.

Our retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of the role of this Court. We can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us — their unelected and lifetenured judges who have been awarded those extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will — to follow the popular will.

Three years later, another plurality in Planned Parenthood v. Casey voted to affirm Roe v. Wade, including Justice Anthony Kennedy, who changed his mind about overturning Roe shortly before the decision was issued and provided the deciding vote. The plurality relied on considerations external to the constitutional text, and explicitly the public’s perceived embrace of the right to abortion in the years since Roe. “For two decades of economic and social developments, people have organized intimate relationships and made choices that define their views of themselves and their places in society in reliance on the availability of abortion, in the event that contraception should fail,” the plurality reasoned. Once again, the plurality cited the fierce political debate over abortion as a reason to maintain the rule of Roe, in the hope that by doing so, that debate would subside. “Whether or not a new social consensus is developing on [abortion], its divisiveness is no less today than in 1973, and pressure to overrule the decision, like pressure to retain it, has grown only more intense. A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe’s original decision, and we do so today.” So for the Casey plurality, adherence to the Rule of Law mandated acquiescing to public demand for abortion – a perverse distortion of the meaning of the principle.

The only safe channel between the Scylla of public opposition to a Supreme Court decision and the Charybdis of public support for it is to hew only to the principle of federal judicial review on which the Constitution and the federal judiciary is founded. The only way for the Court to avoid looking political is not to be political; the text and history of the Constitution should be the only basis for the Court’s interpretation of the nation’s charter. Or as Chief Justice John Marshall put it in another case, Marbury v. Madison,[15] it is the Court’s duty finally – and merely – to “say what the law is.”

Law & the Courts

Barbara Lagoa and Robert Luck: What Are They Saying?


The announcement of President Trump’s new nominees to the Eleventh Circuit, Barbara Lagoa and Robert Luck, has made a splash across the country. Lagoa and Luck are judicial superstars already, and the wide-ranging endorsements they have received since yesterday demonstrate their broad support heading into the confirmation process.

Senator Marco Rubio (R., Fla.)
“I am pleased the president nominated two distinguished Floridians to serve on the Eleventh Circuit and I look forward to meeting with them prior to their confirmation hearing,” Rubio said. “Senate Republicans continue to confirm well-qualified judges to the federal bench, including eight district court judges in Florida. I look forward to continuing that process in the weeks and months ahead.”

Senator Rick Scott (R., Fla.)
“Congrats to Florida Supreme Court Justices Barbara Lagoa & Robert Luck on their nominations to the US Court of Appeals for the 11th Circuit! They’ve done an excellent job serving our state & upholding the rule of law. I know they will be excellent additions to the federal bench.”

Florida Governor Ron DeSantis
“President Trump has demonstrated great judgment in nominating Justices Barbara Lagoa and Robert Luck to the United States Court of Appeals for the Eleventh Circuit. I appointed these two Justices to the Florida Supreme Court for their demonstrated understanding of the Constitution and the appropriate role of the judiciary. We are proud of these two Floridians who have earned the respect of many for being great jurists and public servants. They will serve our nation well.”

Florida Lieutenant Governor Jeanette Nuñez
“Justices Barbara Lagoa and Robert Luck are extremely well-qualified candidates for the Eleventh Circuit Court of Appeals, and I applaud President Trump for their nominations. Their brilliant legal minds and vast experience gives me great confidence that they will uphold the Constitution and rule of law with honor and integrity in their new roles.”

Ashley Moody, Florida Attorney General
“Great judicial picks by @realDonaldTrump!

We will miss Justice Luck and Justice Lagoa on the Florida Supreme Court, but we know they will serve our country well on the federal bench.”

Florida Senate President Bill Galvano
“Congratulations to Justice Lagoa and Justice Luck on their appointment to the Eleventh Circuit Court of Appeals. These appointments by President Trump recognize the quality of justices selected by Governor DeSantis. The Governor’s commitment to appointing judges who respect the separation of powers as defined in our Constitution will now benefit the citizens of not only Florida but of the entire Eleventh Circuit.”

Florida House Speaker Jose Oliva
“The President has once again shown his thoughtfulness in selecting judicial nominees. Justices Lagoa and Luck are exemplars of judicial discipline, my sincerest congratulations to them. Governor DeSantis is also to be commended for his judgment on having appointed Lagoa and Luck to Florida’s Supreme Court. This is a proud day for Florida and a great opportunity for the Federal court system.”

Florida State Senator Manny Díaz Jr.
“President Trump has made a wise choice in appointing Justice Barbara Lagoa to the Eleventh Circuit Court of Appeals. Justice Lagoa understands the proper role of the judiciary and respects the separation of power between the branches of government. Governor DeSantis made an excellent choice in appointing Justice Lagoa to the Florida Supreme Court and I trust her deep understanding of the Constitution and love for country will continue to serve Florida and the nation well.”

U.S. Executive Director of the Inter-American Development Bank Eliot Pedrosa
“In making Justice Barbara Lagoa his first appointment to the Florida Supreme Court, Governor Ron DeSantis recognized Justice Lagoa’s important work as a jurist which has won her the respect of her colleagues. This has been very wisely affirmed by President Donald J. Trump who has nominated Justice Lagoa to the United States Court of Appeals for the Eleventh Circuit.  This is a day of significance for Floridians and the nation as Justice Lagoa will continue to serve with unfailing love of country and the Constitution.”

Florida Representative Randy Fine
“Justice Robert Luck is principled, honorable and well-qualified jurist and President Trump could not have nominated a better candidate. He is a dedicated public servant who I have no doubt will continue to faithfully uphold the rule of law on the Eleventh Circuit Court of Appeals.”

Florida Representative Ben Diamond
“I am privileged to have known Justice Luck for years; we were law students together at the University of Florida, and law clerks together for the United States Court of Appeals for the Eleventh Circuit. I am so proud on his nomination to the Eleventh Circuit. I know he will serve our federal judiciary with honor, fairness and distinction.”

Jesse Panuccio, Former Acting Assistant Attorney General and Former Executive Director of the Florida Department of Economic Opportunity
“Justices Lagoa and Luck are extraordinary choices for the Eleventh Circuit. Both jurists are renowned in Florida for their intellect, fairness, demeanor, and commitment to the rule of law. They both worked their way up, from humble beginnings in the Cuban and Jewish communities of Miami, to the heights of our state’s legal profession. Their personal and family stories are the embodiment of the American dream. The Senate should confirm them quickly.”

Hillarie Bass, Immediate Past President of the American Bar Association
“Barbara Lagoa will be a wonderful 11th Circuit Judge. I have worked with Barbara since she was a young lawyer and followed her momentous elevations at every step of her career. At each position she has held, she has represented the professionalism, integrity, legal judgment and personal commitment to excellence that makes the legal profession so proud to have her as our member. Those of use who have had the privilege of working with her over the course of her spectacular career are so proud to have had the opportunity to in some small way have contributed to her success.”

John M. Stewart, President of The Florida Bar
“Justices Barbara Lagoa and Robert Luck have served Florida well as lawyers and jurists, and both are highly qualified to provide their knowledge and expertise to the entire country. It is well-known throughout Florida that they have repeatedly demonstrated the ability to apply the law to reach fair and just outcomes. I am excited about their continued public service to our state and now possibly to our country. I want to thank them for their service on behalf of the lawyers of Florida and wish them much continued success in their future judicial service.”

Dori Foster-Morales, President-elect of The Florida Bar
“I have known both justices as local attorneys and now as members of Florida’s highest court for many years and I am absolutely thrilled with this announcement. They were excellent appointments to the Florida Supreme Court, and, personally and professionally, I am certain that both are exceptional human beings and highly skilled jurists who will always be a tribute to any court they serve.”

Michelle R. Suskauer, Immediate Past President of The Florida Bar
“Justices Lagoa and Luck have long been two of the brightest stars in the south Florida legal community and both are eminently qualified choices for the U.S. 11th Circuit Court of Appeals. Justice Lagoa’s impressive and diverse experience at the highest levels of both the public and private sectors inform her deep insight and broad perspective on the legal issues she would face on the Court. Justice Luck is well known for having exceptional temperament, experience, and intellect, and he will undoubtedly will serve the Court with the highest distinction.”

Jenny Beth Martin, Honorary Chairman of Tea Party Patriots Action
“I am thrilled that President Trump has nominated two outstanding candidates to the Eleventh Circuit Court of Appeals. As the first Hispanic woman to serve on Florida’s Supreme Court, Barbara Lagoa has proven to be an exemplary jurist. Similarly, Robert Luck is a man of high character and has demonstrated a deep understanding of our nation’s Constitution. Their nominations reaffirm the President’s commitment to strengthening liberty and justice in our judicial system. I look forward to their swift confirmation in the United States Senate.”

Marjorie Dannenfelser, President of Susan B. Anthony List
“President Trump continues to deliver on his promise to nominate principled judges to the federal bench. The President’s latest round of nominations follows the landmark confirmation of 150 judges during his first term — exceptional men and women who will uphold the Constitution and restore legislative power to the American people and their representatives, as our nation’s founders intended. We thank President Trump, as well as Leader McConnell, Chairman Graham, and the pro-life Senate majority for their unwavering commitment to getting these nominees confirmed.”

Faith & Freedom Coalition
“Once again #POTUS is keeping his commitment to the American people by nominating two outstanding candidates to the Eleventh Circuit Court of Appeals.

Justice Barbara Lagoa and Justice Robert Luck are both highly qualified exceptional people of character who will fairly apply the law and adhere to the Constitution. We look forward to their swift confirmation!”

Manny Iglesias, RNLA Chair
In Barbara Lagoa and Robert Luck, President Trump has once again nominated two superb lawyers to the federal circuit courts. Both have had distinguished legal careers and have extensive judicial experience. On the bench, they have shown their respect for the rule of law and their commitment to interpreting laws as written. The Senate should quickly confirm these two excellent nominees to the Eleventh Circuit.

Link to original article.

Law & the Courts

This Day in Liberal Judicial Activism—September 15

Ultrasound of fetus at 20 weeks. (Letuve/Dreamstime)

1987—In order to help finance his 1985 desegregation plan for the Kansas City, Missouri, School District in Jenkins v. Missouri—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark imposes a 1.5% surcharge on state taxpayers in the school district, orders a near-doubling of the property-tax levy in the school district, and directs the school district to issue $150 million in capital improvement bonds.

On appeal, the Eighth Circuit will reverse Clark’s income-tax surcharge, and the Supreme Court (in its 1990 ruling in Missouri v. Jenkins) will unanimously reverse Clark’s increase in the property tax. By a vote of 5-4, however, the Court majority will hold that Clark may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy will condemn the majority holding:

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2000—Declaring that a right to abortion “is inherent in the concept of ordered liberty,” the Tennessee supreme court (in Planned Parenthood v. Sundquist) rules that informed-consent provisions and various other state-law regulations of abortion violate the state constitution.

2003—Ninth Circuit judges Harry Pregerson, Sidney Thomas and Richard Paez combine to produce a stupefying per curiam opinion (in Southwest Voter Registration Education Project v. Shelley) that enjoins the state of California from proceeding with its statewide election—on the recall of Governor Gray Davis, among other matters—scheduled for a mere three weeks later (October 7). In the words of Harvard law professor Einer Elhauge, the decision “elevates a straw-man argument against Bush v. Gore into constitutional principle, and then employs that bogus principle to deny the California electorate its constitutional right to oust its governor.”

Barely a week later, the en banc Ninth Circuit repudiates the panel opinion and allows the election to take place.

Law & the Courts

Why a ‘Fair and Impartial Judiciary Has Special Meaning’ to Second Circuit Nominee Menashi

Steven Menashi (George Mason University / Antonin Scalia Law School)

According to someone present at Second Circuit nominee Steven Menashi’s confirmation hearing on Wednesday, it was difficult to hear Menashi’s poignant retelling of his family’s flight from vicious mobs in 1940s Iraq because of a vicious mob in the Dirksen building. So I provide here an extensive excerpt from Menashi’s opening statement:

I am proud to have these family members here and I would like to say something about them, if you’ll indulge me, because ours is a family that could only have come together in America.

My father is an immigrant from Iran. He was born in Tehran to an Iraqi Jewish family that had lived in Baghdad for centuries before having to leave. Most people have forgotten this today but Iraq was once a flourishing center of Jewish life and culture. Religious and ethnic persecution put an end to that. Today in Baghdad it is estimated there are 10 Jews left.

One of the outbreaks of violence against the Jews in Iraq was the Farhud, a pogrom in 1941 in which Baghdadi Jews were raped and murdered, and hundreds of Jewish homes and businesses were looted or destroyed. My grandmother Daisy survived the Farhud because her Kurdish neighbors smuggled her and her sisters out of the city, running across the flat rooftops of the houses in Baghdad until they reached a hiding place in the countryside.

My grandparents later tried to build a new home in Iran but eventually left because they could not trust the courts to be impartial. My grandfather lost his livelihood after having a dispute with the partners in his auto parts business and he could not rely on the courts to accept the testimony of a Jew. Because of my family’s experience, this country’s commitment to the rule of law, to equal justice for each individual regardless of their background, and to a fair and impartial  judiciary has special meaning to me.

I also want to say something also about my mother’s family, and her father for whom I am named. My grandfather Samuel James Berenson escaped the Ukraine at age 13 when, in the middle of the night, his family pushed him from the Ukrainian side of the frozen Bug River into the arms of relatives waiting on the Polish side. He made his way to the Bronx, where he worked in his father’s candy store while finishing high school. When he applied to medical school, to avoid the anti-Jewish quotas of the  time, he adopted a middle name—because most Jewish immigrants did not have middle names. Jimmy Walker was the mayor of New York City at the time, so he took the middle name James, and that’s why my middle name is James too.

My grandfather became a surgeon and an officer in the U.S. Army, and he returned to Europe as a soldier to help liberate the concentration camps. While there, he would ask the Jewish prisoners about the relatives he had left behind. We eventually learned that those relatives, his aunts and uncles and their children, were murdered by German forces in their hometown during the Holocaust.

I want also to acknowledge my in-laws Maya and Victor Golant, who are both Jewish refugees from the Soviet Union. Like many others, they came to this country thanks to the Jackson-Vanik Amendment passed by this body in 1974.

My family has made me who I am today. The lessons of their struggles to escape violence and discrimination have resonated with me for as long as I can remember. My family and I are grateful for the home we have found in America, and I appreciate our constitutional traditions of equality before the law, religious freedom, tolerance, and an impartial judiciary.

Yes, this is a nominee that the Left is shamelessly smearing as a fascist.

Law & the Courts

Excellent Eleventh Circuit Nominations

A follow-up to this post from a week ago:

Yesterday President Trump announced his intent to nominate two Florida supreme court justices—Barbara Lagoa and Robert J. Luck—to Eleventh Circuit seats. Lagoa and Luck would fill the Florida seats being vacated by Gerald Tjoflat and Stanley Marcus. (It’s unclear to me who will be nominated to which seat—not that it matters much.)

Tjoflat announced his decision to take senior status last month, and Marcus announced his decision just last week. Kudos to President Trump and the White House counsel’s office for moving so swiftly to fill the seats with two outstanding nominees.

As noted in my previous post, when Marcus’s seat is filled, the Eleventh Circuit will flip to a 7-5 majority of Republican appointees. At the outset of the Trump administration, it had an 8-3 Democratic majority (with one vacancy).

The only appellate vacancies for which nominations haven’t yet been announced are the “future vacancies” for the Ninth Circuit seats of Carlos Bea (California) and Jay Bybee (Nevada).

Law & the Courts

Justice Ginsburg: ERA Ratification Process Would Need to ‘Start Over Again’

As I’ve explained, notwithstanding clamor over the prospect that some state will supposedly become the decisive 38th state to ratify the Equal Rights Amendment, there is a very strong argument that the deadline for ratifying the ERA expired decades ago. Even supporters of the ERA recognized that they needed to start over after the (dubiously extended) June 1982 deadline passed. And by dismissing as moot in October 1982 a case challenging the validity of that deadline extension, the Supreme Court clearly signaled its own judgment that ratification of the ERA had failed.

Given all this, it’s not surprising that Justice Ginsburg also clearly recognizes that the ratification process for the ERA proposed in 1972 has failed. In remarks yesterday at Georgetown law school (reported by the National Law Journal), Ginsburg, in reiterating her support for an Equal Rights Amendment, stated:

I was a proponent of the equal rights amendment. I hope someday it will be put back in the political hopper and we’ll be starting over again collecting the necessary states to ratify it. [Emphasis added.]

Law & the Courts

Who is Robert Luck?

Justice Robert J. Luck (Florida Supreme Court)

Justice Robert J. Luck is President Trump’s nominee to the U.S. Court of Appeals for the Eleventh Circuit from Florida. Currently a justice on the Supreme Court of Florida, Luck is a fourth-generation Floridian.  His mother was an elementary school teacher and his father sold new and used trucks. He was born and raised in Miami-Dade County, where he attended area public elementary and secondary schools. Justice Luck graduated with highest honors with a B.A. degree from the University of Florida in 2000 and graduated magna cum laude from the University of Florida’s Levin College of Law in 2004. During law school, he served as Editor-in-Chief of the Florida Law Review. Between college and law school, Luck worked as a legislative correspondent in the offices of Senators Paul Coverdell (GA) and John Kyl (AZ).

Following his law school graduation, Justice Luck clerked for the Honorable Ed Carnes on the U.S. Court of Appeals for the Eleventh Circuit. He followed one year clerking with another year at Greenberg Traurig, where he practiced appellate law. Luck then accepted an invitation from Judge Carnes to come back and serve as a full-time clerk on account of his outstanding work. While Luck was clerking, he also served as an adjunct professor of business law at Alabama State University, a historically black college.

In 2008, Luck began his service as Assistant U.S. Attorney for the Southern District of Florida, where he remained for five years. At the U.S. Attorney’s office, Justice Luck handled both trials and appeals in the Appeals, Major Crimes, and Economic Crimes Sections. He tried 19 federal jury trials and argued three cases before the Eleventh Circuit before becoming Deputy Chief of the Major Crimes Section. During his tenure, Luck was awarded the Director’s Recognition for outstanding prosecution skills and assistance to the FBI (2011); the Integrity Award, given by the Department of Health and Human Services’ Office of the Inspector General for his work fighting health care fraud in South Florida (2012); and the Award for Truly Exceptional Achievement & Merit (A-TEAM), U.S. Attorney’s Office (2013).

Justice Luck’s judicial career began in 2013, when he was appointed by then-Governor Rick Scott to Florida’s Eleventh Judicial Circuit Court, which oversees appeals from the county court.  There he served in the Appellate, Criminal, and Civil Divisions, trying hundreds of cases to verdict and publishing hundreds of criminal and civil orders. He was also certified to handle death penalty cases.  Luck won an election to retain his seat in 2016, and was endorsed by the Miami Herald. In 2017, the Miami Jewish Legal Society awarded Luck the “Rodef Sholem” Pursuer of Peace Award.

In 2017, Governor Scott appointed Luck to the Third District Court of Appeal, where Luck presided over 500 appeals and published 80 written opinions.  In 2017, he was awarded the President’s Outstanding Community Leader Award by the Dade County Bar Association. Luck won retention again in 2018 with more than 70% of the vote.

In January of this year, Governor Ron DeSantis appointed Luck to the Supreme Court of Florida, where he continues to serve.  Governor DeSantis announced Luck’s appointment at the Jewish day school that Luck’s children currently attend and where he himself attended kindergarten. Following the announcement of his appointment, Luck said:

For as long as I can remember, all I wanted to do was give back to the state that had given so much to my family and to the millions of others that had come here looking for a better life.  I wanted to serve with the only tools that I had—my law degree and my bar license—to make sure the rule of law prevailed in this state for all, so our children would have the same opportunities our grandparents and parents had.

Luck currently serves on the Florida Children and Youth Cabinet by appointment of the chief judge. Luck is also the court’s liaison to the Florida Bar Appellate Rules Committee and was appointed by the president of the Florida Bar to that post for successive terms. He has been a member of the Federalist Society since law school and active in the Miami Lawyers Chapter throughout his legal career.

Justice Luck is known for his work ethic. On one occasion in 2015, a criminal defendant attacked him in open court. He suffered a laceration to the back of the head and a scratch on the neck, but he declined medical attention and was back on the bench the next day.

Justice Luck is married and has two children.

Law & the Courts

Who is Barbara Lagoa?

Justice Barbara Lagoa (Florida Supreme Court)

Justice Barbara Lagoa is President Trump’s nominee to the U.S. Court of Appeals for the Eleventh Circuit from Florida. Currently a justice on the Supreme Court of Florida, Lagoa is the only child of immigrant parents who fled Fidel Castro’s Cuba in 1966, arriving in the United States via one of the “Freedom Flights”—a refugee program that transported Cubans to the U.S. between 1965 and 1973. Lagoa was born in Miami and raised in Hialeah, Florida—a predominantly Cuban community.  She has said that she “rode her bike and roller skated down the streets and the sidewalks of Hialeah under the watchful eye of [her] grandmother while [her] parents worked long hours.”

In the wake of having fled Cuba “with nothing but the clothes on their back and their education,” Lagoa’s parents emphasized the importance of their only daughter’s education, “sacrific[ing] to provide [Lagoa] with a Catholic school education and instilling in [her] the importance of education and hard work.” After attending Catholic elementary and secondary schools, Lagoa graduated cum laude with a B.A. degree from Florida International University in 1989 and earned a J.D. from Columbia Law School in 1992. During law school, she worked as associate editor of the Columbia Law Review.

Lagoa followed law school with 11 years in private practice, split among four firms in Miami: Morgan Lewis, Schulte Blum, Cohen Berke, and (for five years) Greenberg Traurig. She specialized in complex commercial litigation ranging from employment discrimination claims to securities litigation and class actions in both federal and state court. Her pro bono work included being part of the team that represented Elian Gonzalez’s family in Miami before the U.S. District Court for the Southern District of Florida and the U.S. Court of Appeals for the 11th Circuit. Between 2001 and 2003, she also served on Florida’s Federal Judicial Nominating Commission.

Justice Lagoa entered government service in 2003, when she became an assistant U.S. attorney for the Southern District of Florida. There she served in the civil, major-crimes, and appellate sections, prosecuting violent crime, gang, and child pornography cases.  In 2006, she was appointed to Florida’s Third District Court of Appeal, a position to which she was twice retained by the electorate, in 2008 and 2014. Her colleagues on that court elected her chief judge in 2017. During her tenure, she presided over approximately 11,500 cases, and published over 500 written opinions.

In January of this year, Governor Ron DeSantis appointed her to the Supreme Court of Florida. Lagoa is the first Hispanic woman and the first Cuban-American woman appointed to the Florida supreme court, a distinction she also held when she was appointed to the Florida Third District Court of Appeal.  Following DeSantis’ announcement of her appointment, Lagoa spoke about the critical importance of the rule of law:

…I am particularly mindful of the fact that under our constitutional system, it is for the legislature and not for the courts to make the law.  It is the role of judges to apply, not to alter, the work of the people’s representatives.  And it is the role of judges to interpret our Constitution and statutes as they are written.

In the country my parents fled, the whim of a single individual could mean the difference between food or hunger, liberty or prison, life or death. In our great country and our great state, we are governed by the rule of law—the consistent and equal application of the law to all litigants regardless of a judge’s personal preferences.  Unlike the country my parents fled, we are a nation of laws, not of men.

Justice Lagoa has been active in numerous charitable and community organizations. She previously served on the Board of Directors of Kristi House, a non-profit organization that aids battered women and child victims of sexual abuse. She has also served on the board of the Florida International University Alumni Association. Justice Lagoa has also been an active member of the Federalist Society since the late 1990s.

Justice Lagoa has also been the recipient of numerous awards and honors, including membership in the Phi Kappa Phi honor society and receiving the FIU Medallion of Honor, Florida International University’s highest honor. In 2010, she received the Outstanding Women of Color Award from the Black Law Student Association and the Caribbean Law Student Association at St. Thomas Law School. She is married and has three daughters.

Law & the Courts

A Look at President Trump’s New Judicial Nominees

Today, President Trump announced a new wave of judicial nominees, which includes two nominees to the U.S. Court of Appeals of the Eleventh Circuit: Barbara Lagoa and Robert Luck.

Lagoa and Luck currently serve as justices on the Supreme Court of Florida—both appointed by Governor Ron DeSantis this past January. And both have extensive experience serving as lower court judges in Florida prior to that (Lagoa for 13 years and Luck for 19).

Lagoa and Luck are superstars in the Florida judiciary, and they will shine on the Eleventh Circuit as well. The following two posts provide a more detailed snapshots of these two individuals.

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