Law & the Courts

Linda Greenhouse’s Distorted Attack on Religious Liberty

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Linda Greenhouse’s online column yesterday bears the portentous title “The Supreme Court Nears the Moment of Truth on Religion.” Greenhouse warns ominously “about the growing threat that an increasingly weaponized free-exercise clause poses to civil society, along with the statutes meant to extend its reach.”

If a “moment of truth” is approaching, the distortions that pervade Greenhouse’s piece won’t help to discern it. And it is the hostility to religious liberty that she manifests that poses the real threat to civil society.

Let’s run through some particulars:

1. Greenhouse opens by expressing her alarm at a recent Sixth Circuit opinion that involved a claim by Michigan prisoners that the state violated their religious-liberty rights under the federal Religious Land Use and Institutionalized Persons Act. The prisoners claim to belong to the “Christian Identity” religion, which advocates white separatism. They sought the right to engage in group worship and baptism. The district court ruled against them on the ground that the state’s denial of their request “did not substantially burden [their] exercise of their religion under the second of the three-step analysis for evaluating RLUIPA claims.” The Sixth Circuit panel ruled that the district court erred in ruling against the prisoners at this step of the analysis, and it remanded the case to the district court so that it could determine whether the state “satisfied the standard of strict scrutiny under RLUIPA’s third step.”

Greenhouse says that she did a “double-take” when she read this “ridiculous” decision. But she obscures from her readers the three-step analysis that RLUIPA plainly requires, and she gives them the false impression that the prisoners prevailed on their RLUIPA claim. Pointing out that the Christian Identity group has an anti-Semitic and racist theology and considerable influence among extremists, Greenhouse asks, “What sensible person, or judge, would want to allow it to flourish inside a prison?” She doesn’t disclose that the Sixth Circuit panel expressly stated that the prison’s “interests in safety and security” are “relevant at step three [of the RLUIPA analysis], not step two.” And she doesn’t state that the panel sent the case back to the district court to apply step three.

Greenhouse also doesn’t note that Justice Ginsburg’s unanimous opinion for the Court in Cutter v. Wilkinson (2005) held that RLUIPA’s standard was constitutionally permissible—and did so, as Greenhouse reported at the time, in a case involving prisoners who invoked white-supremacist and Satanist religious beliefs. Explaining that “context matters” in applying strict scrutiny, Ginsburg stated that there was “no cause to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.”

2. Greenhouse faults the Supreme Court for “instructing judges to accept almost any religious claim, no matter how preposterous, at face value and to put the government to an extremely tough test to justify any infringement on a ‘sincere’ religious belief.” She asserts that in Burwell v. Hobby Lobby the Court “gave dispositive weight” to the claim by business owners that including contraceptive coverage in their health plans “would make them complicit in the sin of birth control.” She quotes with disapproval Justice Alito’s statement in his majority opinion that “It is not for us to say that [the Hobby Lobby owners’] religious beliefs are mistaken or insubstantial.”

Greenhouse evidently imagines that judges or other government officials should be deciding which religious beliefs “are mistaken or insubstantial.” Again, she hides from her readers that Alito, far from breaking new ground, was reciting a proposition that was set forth in the Court’s opinion in Thomas v. Review Board in 1980—an opinion joined by liberal icons William Brennan and Thurgood Marshall—and that was implicit in the Court’s earlier Free Exercise decisions. This proposition did not have “dispositive weight” in the Court’s analysis. It meant only that the challengers satisfied the threshold test of acting on a religious belief. (Greenhouse also misdescribes the religious beliefs of the Hobby Lobby owners: they had religious objections to abortion and opposed providing contraceptives that might also operate as abortifacients.)

More broadly, the “tough test” that Greenhouse complains that the federal Religious Freedom Restoration Act and RLUIPA impose is the test that Brennan and Marshall believed that the Free Exercise Clause required. The express purpose of RFRA, in overturning the effect of the Court’s decision in Employment Division v. Smith (1990), was “to restore the compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of religion is substantially burdened.”

3. Greenhouse seems to think that religious-liberty rights belong to some people but not others. She complains that RFRA, “initially seen by a broad liberal coalition that supported it as protection for minority religious practices, has become a powerful tool in the hands of a politically energized Christian majority.” But RFRA provides equal protections for all religious believers. (And, of course, if the supposed “Christian majority” that Greenhouse says is “politically energized” had the power she imagines, Christian believers wouldn’t have to go to court to seek to protect their rights.)

4. Greenhouse’s opening about white-supremacist prisoners is an odd lead-in to her discussion of an important new case on the Court’s docket, Fulton v. City of Philadelphia. The question in this case is whether the city of Philadelphia violated the Free Exercise Clause and the Free Speech Clause by excluding a religious agency from the city’s foster-care system unless the agency agreed to act and speak in a manner inconsistent with its religious beliefs about marriage. Greenhouse is correct that the case gives the Court an opportunity to overturn Employment Division v. Smith (and, although she doesn’t say it, restore the Free Exercise test that Brennan and Marshall favored). But she leaves out that the agency also powerfully argues that the city’s “shifting rationales” show that it isn’t applying a neutral and generally applicable law in a way that would satisfy Smith.

Law & the Courts

Respecting Freedom of Conscience, a Disappearing American Value

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The Supreme Court building in Washington, D.C. (Yuri Gripas/Reuters)

In a startling series of edicts, government bureaucrats have announced that Guns Down America must provide all its staff members with firearms containing high-capacity magazines, the American Atheists must give a free Koran or Bible to each of its workers, and orders of Catholic nuns and the sponsors of the annual March for Life must offer their employees free access to abortion. All three of these pronouncements are absurd; only the last is true. But that truth shows how far our country has fallen when it comes to protecting rights of conscience.

It used to be a widely held American value to respect conscience rights. Take abortion. Moral or religious objections to abortion have existed for millennia, and our country has traditionally respected them. Indeed, the very same day the U.S. Supreme Court announced its decision in Roe v. Wade, it issued another opinion in Doe v. Bolton that praised the state of Georgia for enacting laws ensuring that hospitals and employees with “moral or religious” objections did not have to facilitate or carry out abortions.

The federal government followed suit, immediately enacting the Church Amendments — by a 92–1 vote in the U.S. Senate — to protect those who object to performing or assisting in abortions or sterilization procedures. A short while later, Congress adopted the Hyde Amendment, prohibiting the federal government from using taxes to pay for abortion under almost all circumstances.

It was an earth-shattering change when, in 2011, the U.S. Department of Health and Human Services issued guidelines interpreting the Affordable Care Act to force many employers to cover all FDA-approved contraceptives in private health plans, including abortifacients that take a human life. Religiously minded businesses like Conestoga Wood Specialties and Hobby Lobby, and nonprofits with moral or religious objections to abortion like March for Life and Little Sisters of the Poor, challenged those intrusive regulations all the way to the Supreme Court.

After years of litigation, HHS restored a semblance of sanity and issued final regulations that exempt private employers from offering contraception and abortion coverage based on moral or religious objections. Meanwhile, HHS ensured access to government-subsidized services to those who could not afford them.

That sensible compromise should have ended the debate. But states that favor government-subsidized abortion and oppose freedom of conscience could not let things rest and sued. They made two incredible arguments. First, the states claimed they had the right to sue because, if an employer would not cover abortion and the states chose to pay for it, the states would incur that cost — as though the federal government must force private employers to subsidize the states’ voluntary provision of abortion-causing drugs. Second, the states said that HHS had no authority to grant a religious and moral exemption — only authority to violate conscience rights.

The Supreme Court has now agreed to decide the exemption’s validity in a pair of cases involving the Little Sisters and the Trump administration. And now Alliance Defending Freedom has filed a petition for certiorari with the high Court on behalf of the March for Life Education and Defense Fund to add its voice to the debate.

March for Life is one of the oldest and best-known pro-life organizations in the country. To say it opposes abortion is an understatement: That opposition is the reason the organization exists. Although March for Life is non-religious, the organization enjoys the new HHS moral exemption. And that makes perfect sense, because the organization’s employees all oppose abortion, too.

ADF and March for Life are urging the Court not only to uphold the religious and moral exemption but to reaffirm the country’s commitment to honoring freedom of conscience. Such freedom benefits everyone, no matter their beliefs.

Law & the Courts

This Day in Liberal Judicial Activism—February 28

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The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

2001—The Legal Services Corporation Act of 1974 created a federal subsidy program that provides financial support for legal assistance to the poor in noncriminal matters. To keep the program from being used for political purposes, Congress has tightly regulated the use of LSC funds. One funding restriction, added in 1996, withheld LSC funds from entities that took part, on either side, in litigation to reform welfare.

In Legal Services Corp. v. Velasquez, the Supreme Court, by a vote of 5 to 4, rules (in an opinion by Justice Kennedy, joined by Stevens, Souter, Ginsburg, and Breyer) that the 1996 funding restriction violates the First Amendment. Justice Scalia, in dissent (joined by Rehnquist, O’Connor, and Thomas), explains that the case is “embarrassingly simple: The LSC subsidy neither prevents anyone from speaking nor coerces anyone to change speech, and is indistinguishable in all relevant respects from the subsidy upheld in [the Court’s 1991 ruling in] Rust v. Sullivan.”

Law & the Courts

Former Ninth Circuit Executive Offers Appalling—and Revealing—Defense of Reinhardt

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This five-paragraph letter to the editor by Cathy Catterson, the circuit executive (top manager) of the Ninth Circuit from 2007 until 2017, is remarkable—but not for the reasons Catterson intends.

Catterson is responding to a Los Angeles Times article last week that reported that more than 70 former law clerks to the late Ninth Circuit judge Stephen Reinhardt signed a letter “expressing support for a woman [Reinhardt’s former law clerk Olivia Warren] who said Reinhardt sexually harassed her.” (I highlighted Warren’s powerful testimony about Reinhardt’s outrageous behavior in this post two weeks ago.) Specifically, the former clerks affirm that they “believe [Warren’s] testimony,” they thank her for “her courage in speaking out,” and they attest that some of them (but not others of them) “experienced or witnessed conduct in chambers [i.e., by Reinhardt] that we would call sexist, workplace bullying or mistreatment.”

That same article also presents another former law clerk’s account of “belittling, bullying and sexist” behavior that she experienced from Reinhardt more than two decades ago.

In the face of these statements by law clerks who worked with Reinhardt day in and day out, Catterson offers not one word of sympathy for Warren. She professes herself agnostic on the truth of Warren’s account while offering no reason that anyone should disbelieve Warren. Instead, Catterson somehow has the gall to fault Warren for testifying before Congress (“I regret that she believed this was the best way to air her grievances, almost two years after Judge Reinhardt’s death”) and for disturbing her own memory of Reinhardt:

I have tremendous respect and admiration for Judge Reinhardt’s legacy, and I know there are many others who share these views. Let him rest in peace.

Catterson even invokes her own supposedly superior insights into “the judge I knew for almost 40 years,” but doesn’t disclose to the reader that she was based in San Francisco all that time while Reinhardt had his chambers in Los Angeles.

Two broader observations:

1. Catterson’s rush to protect Reinhardt amply vindicates Warren’s judgment that she couldn’t report Reinhardt’s misconduct to Ninth Circuit officials “because it was very clear how beloved Judge Reinhardt was and I could not trust that they would receive the information confidentially or with an open mind.” (Testimony at 15.) It also illustrates Warren’s concerns about the “systemic barriers to reporting harassment and misconduct by judges that are unique to the legal profession, and uniquely formidable in the context of the relationship between law clerk and judge.” (Testimony at 12; see generally pp. 11-17.) In any effort to improve the process, Catterson’s letter should be taken into account as showing a problem that needs to be addressed.

2. Five years ago, in a piece jointly published in the legal journals of San Francisco and Los Angeles, I reported how the remarkable good fortune that Reinhardt seemed to have in getting assigned to sit on ideologically charged cases owed in part to a longstanding but undisclosed practice that the Ninth Circuit clerk’s office had for assigning expedited cases. That practice, I pointed out, was rife with potential for abuse and seemed to have been applied selectively to direct cases to Reinhardt. I also highlighted an academic study that concluded that case assignments in the Ninth Circuit were ideologically skewed in their deviation from what random assignments would generate. I observed that court clerks “are people, too [and] have their biases and their temptations to indulge their biases, especially when they think they can get away with it.” I called for the Ninth Circuit to conduct a thorough investigation of how its case-assignment process has in fact operated.

Catterson headed the Ninth Circuit clerk’s office from 1985 to 2007 before being named to the new position of circuit executive (where she, among other things, hired and supervised her successor as court clerk). Her fondness for Reinhardt personally and her open “admiration” for his liberal judicial “legacy” mean that she had the motive as well as the opportunity to abuse the case-assignment process to favor him. Her peculiar judgment in writing her letter to the editor reinforces suspicions that she might have sought opportunities to indulge her biases.

It’s long past time for the Ninth Circuit to carry out a serious investigation into the irregularities that occurred under Catterson’s watch.

Law & the Courts

This Day in Liberal Judicial Activism—February 27

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1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman.

Law & the Courts

This Day in Liberal Judicial Activism—February 26

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(Carlo Allegri/Reuters )

2018—By a 4-3 divide, the California supreme court holds (in People v. Contreras) that very long sentences imposed on two juvenile offenders for brutal rapes violate the Eighth Amendment of the federal Constitution. According to Goodwin Liu, the justice who wrote the majority opinion, the two sentences (one of 50 years to life, the other of 58 years to life) are “functionally equivalent” to sentences of life without parole and thus are impermissible under the U.S. Supreme Court’s 2010 ruling in Graham v. Florida.

In dissent, chief justice Cantil-Sakauye objects that the majority misreads Graham by extending it beyond actual sentences of life without parole to sentences that are “qualitatively different.” She further points out that, contrary to Liu’s assumption, both offenders will be eligible for parole no later than age 60.

Law & the Courts

This Day in Liberal Judicial Activism—February 25

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Supreme Court Justice Clarence Thomas (Jonathan Ernst/Reuters)

1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

2019—Ninth Circuit judge Stephen Reinhardt probably holds the record for the most unanimous reversals by the Supreme Court, so it’s only fitting that he somehow managed to rack up another one in an opinion issued in his name eleven days after his death.

“Federal judges are appointed for life, not for eternity.” That’s the punchline in the Supreme Court’s per curiam ruling in Yovino v. Rizo. The Court vacates the Ninth Circuit’s en banc ruling issued on April 9, 2018. Reinhardt died on March 29, 2018, but the Ninth Circuit listed him as the author of the six-judge majority opinion.

Law & the Courts

‘People of All Genders Can Become Pregnant’

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This pearl of politically correct obtuseness from Ninth Circuit judge Richard Paez’s dissent (p. 2, note 2) in today’s Title X ruling deserves more prominence than my belated addendum to my original post:

While the [Title X] Rule disproportionately impacts women, people of all genders rely on Title X services, can become pregnant, and will suffer the consequences of the Rule. See, e.g., Cal. Code Regs., tit. 2, § 11035(g) (defining individuals eligible for pregnancy accommodation as including “transgender employee[s] who [are] disabled by pregnancy”); Jessica A. Clarke, They Them, and Theirs, 132 Harv. L. Rev. 894, 954 (2019) (“People of all gender identities can be pregnant[.]”); see also Juno Obedin-Maliver & Harvey J. Makadon, Transgender Men and Pregnancy, 9 Obstetric Med., 4, 5 (2016).

Yes, women who don’t identify as female can still get pregnant—because they are women.

Law & the Courts

Certiorari Petition on Mandatory Bar Associations Post-Janus

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In its 2018 ruling in Janus v. AFSCME, the Supreme Court held that public employees have a First Amendment right not to be compelled to subsidize union speech on matters of substantial public concern. This interesting certioriari petition in Fleck v. Wetch, filed by the Goldwater Institute on behalf of a North Dakota attorney, presents the question whether post-Janus a state can force attorneys to join, and thus subsidize the political speech of, bar associations as a condition of practicing law.

Law & the Courts

‘Actually Innocent of His Sentence’?

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I confess that I’m not up to speed on all the ways that various judges work to evade limitations on granting habeas relief. But sometimes ugly and ungrammatical locutions give the game away.

In a divided Ninth Circuit decision today in Allen v. Ives, Judge William Fletcher, writing for the majority, addresses Allen’s claim that he is (in Fletcher’s summary) “‘actually innocent’ of his sentence as a career offender.” Elsewhere in his opinion, he speaks of being “actually innocent of the enhancement.” He tries to recast both concepts as being “actually innocent of being a career offender.”

But Allen isn’t making the factual claim that he didn’t commit the state-law crime that served as the predicate crime for career offender status. He is instead making the legal argument that the crime for which he was convicted doesn’t qualify as a predicate crime. Fletcher evidently can’t entertain that claim without butchering both the law and the English language.

In her dissent, Judge Callahan faults the majority for an “expansion of actual innocence jurisdiction [that] is inconsistent with both Supreme Court and Ninth Circuit precedent.” She also expresses alarm that the majority “opens the proverbial floodgate for habeas petitions under the [actual-innocence] escape hatch.”

Mark this one for en banc rehearing.

Law & the Courts

Ninth Circuit Allows HHS Title X Regulations to Take Effect

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Title X of the Public Health Service Act authorizes the Department of Health and Human Services to make grants to support voluntary family planning but prohibits grant funds from being used in “programs where abortion is a method of family planning.” In an important victory for the Trump administration—and a big defeat for Planned Parenthood—the Ninth Circuit ruled today (in California v. Azar) that the HHS’s regulations implementing Title X are lawful.

The Ninth Circuit divided 7 to 4 along ideological lines (or at least along lines of party of appointing president). Judge Sandra Ikuta penned the majority opinion and was joined by Judges Leavy, Bybee, Callahan, M. Smith, Miller, and Lee. (The latter two are Trump appointees.) Judge Richard Paez wrote the dissent, joined by Chief Judge Thomas and Judges Wardlaw and Fletcher.

The Chief Judge is automatically on every limited en banc panel. The fact that seven of the other ten judges drawn to be on the panel were appointed by Republican presidents surely owes to President Trump’s success in markedly increasing the size of that cohort: from 7 to 13 of the 29 judges in active service. (The draw occurred some time last summer; there were probably only 11 or 12 Republican appointees at the time of the draw.)

In her majority opinion, Judge Ikuta explains that the Title X regulations are similar to those upheld by the Supreme Court in Rust v. Sullivan in 1991, and that they are in fact “less restrictive in at least one important respect: a counselor providing nondirective pregnancy counseling ‘may discuss abortion’ so long as ‘the counselor neither refers for, nor encourages, abortion.’” There therefore “is no ‘gag’ on abortion counseling” (even if one were to adopt the dubious position that a refusal to provide funding amounts to a “gag”).

Ikuta rejects arguments that two intervening congressional enactments render Rust’s holding no longer valid (pp. 32-48) and that the regulations are inconsistent with a provision in the so-called Affordable Care Act (pp. 49-58). She also rejects administrative-law claims that the Title X regulations are in various respects arbitrary and capricious (pp. 59-81).

In his dissent, Judge Paez repeats the tired claim that the Title X regulations “gag” health-care providers. Indeed, he even adopts the “Gag Rule” as his shorthand for the challenged regulations. He contends that the Title X regulations violate a 1996 law requiring that all pregnancy counseling be “nondirective” (pp. 4-11); that it violates the ACA (pp. 12-15); and that it is likely arbitrary and capricious (pp. 15-28).

Addendum (4:25 p.m.): A reader calls my attention to footnote 2 of the dissent, where Paez states that “people of all genders … can become pregnant.”

The Ninth Circuit has never decided to have a full en banc rehearing of a limited en banc panel ruling. I doubt very much that it will exercise that option here.

Law & the Courts

Collegiality, Liberal Style, on the Ninth Circuit

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Irony alert: In this front-page article in the Los Angeles Times, several “veteran” Democratic appointees on the Ninth Circuit launch anonymous attacks on the supposed lack of collegiality of some of their new colleagues. Gee, how collegial of them to do so. And how strange that judges who “refused to be quoted by name” would defend their unattributed attacks by “saying they were not authorized to speak about what goes on behind the scenes.” If they’re not authorized to speak in their own names, on what possible basis do they think that they’re authorized to give anonymous quotes?

Judge Daniel P. Collins (disclosure: my former co-clerk for Justice Scalia and a longtime friend) is a particular target of the criticism. The complaints about how he “has appeared oblivious to court tradition” are amusing.

First, we’re told, Collins “has sent memos at all times of the night in violation of a court rule.” But from what I can tell, no such “rule” exists. And why would anyone prefer to get the memo the next day? A judge who prefers not to work as hard as Collins can make his or her own decision to read the memo in the morning. (Addendum: There evidently is some sort of preferred practice regarding memos the day before en banc votes.)

The second complaint is that Collins “objected to other judges’ rulings in language that some colleagues found combative.” To illustrate the point, the article notes that in a dissent from denial of rehearing en banc Collins called one panel decision “‘deeply flawed,’ ‘plagued’ by legal error and marked by ‘confused analysis.’” (The internal quotes are Collins’s words.) In response, two Democratic appointees said that his dissent “misrepresents the legal context of the case and wildly exaggerates the purported consequences of the panel opinion.” (Emphasis added.) On a scale of combativeness, I don’t see how the language of the Democratic appointees would get a lower score than Collins’s would, and I would have thought that “veteran” judges would have thicker skin.

The much more important question ought to be who is right. On that question, I’d bet big on Collins. I’ll also note that the issue at stake did not have the typical liberal vs. conservative ideological valence: Collins was defending the ability of Indian tribes to detain and investigate non-Indians for suspected violations of state and federal law within the boundaries of Indian reservations.

The third complaint is that Collins “moved quickly to challenge rulings by his new colleagues, calling for review of five decisions by three-judge panels, and some of the calls came before Collins even had been assigned to his first panel.” Further: “Judges said it was unprecedented for a new jurist to try to overturn so many decisions in such a short period of time.”

As soon as he joined the Ninth Circuit, Collins had not just a right but a duty to exercise his full responsibilities as a judge. The idea that he shouldn’t have taken part in en banc matters until he “had been assigned to his first panel” makes no sense. And having clerked on the Ninth Circuit when Judge Alex Kozinski came onboard, I doubt very much that there is anything about Collins’s first year on the court that is “unprecedented.”

I’m confident that Collins won’t be intimidated by this anonymous bullying. As one judge puts it, “I think he will be fine, though he will never be a go-along-get-along guy.” I think that Collins will be excellent, and when it comes to judicial decisionmaking, go-along-to-get-along strikes me as a vice rather than a virtue.

The article also makes a drive-by attack on Judge Lawrence VanDyke. It quotes the ABA’s harsh critique of VanDyke but makes no mention of the scathing criticism that the ABA received. (See, for example, Josh Blackman’s Atlantic essay.) It also notes that “VanDyke cried during his confirmation hearing when attempting to rebut criticism that he might be unfair to the LGBTQ community.” I find it very odd that VanDyke’s critics use his crying against him. VanDyke’s tears accompanied his moving testimony that “it is a fundamental belief of mine that all people are created in the image of God and they should all be treated with dignity and respect.” That strikes me as quite a rebuttal to the ill-founded charge against him.

Law & the Courts

This Day in Liberal Judicial Activism—February 24

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Geoffrey R. Stone (Courtesy of the University of Chicago)

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

2016—At a mock hearing meant to pressure Senate Republicans to confirm whomever President Obama will nominate to the Supreme Court vacancy created by Justice Scalia’s death, law professor Geoffrey Stone panders to Senate Democrats by purporting to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee.

This is the same Stone who in 2006 urged the Senate to defeat the Alito nomination. Back then, Stone emphasized that “members of the Senate are free to reject nominees if they disagree with [the] views” the nominating president “wants represented on the Court.” Stone further argued: “If the circumstances in the country or on the Court make the confirmation of a particular nominee especially troubling, senators are likely to give less deference to the president’s choices, and that is perfectly appropriate. That is how the process has worked historically, and it is how it should work.” (Stone’s emphasis.)

2017—Playing pronoun police, the Supreme Court’s Office of the Clerk chastises two amici for using a feminine pronoun (“G.G., by her next friend and mother, Deirdre Grimm”) to refer to the respondent in the caption of their briefs. Never mind that the respondent is a biological female and that a central question in the case is whether she must nonetheless be treated as though she were male. Never mind, further, that the rule that the clerk’s office alleges amici to have violated doesn’t remotely say what the clerk’s office claims the rule to mean (namely, that “parties generally should use the case title reflected on the Court’s docket”) and that the clerk’s office hasn’t previously enforced such a meaning.

Law & the Courts

This Day in Liberal Judicial Activism—February 23

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Supreme Court Justice Elena Kagan attends a ceremonial swearing in Washington March 6, 2015. (Yuri Gripas/Reuters )

1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat.

2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:

I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.

Law & the Courts

This Day in Liberal Judicial Activism—February 22

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Justice Harry Blackmun.

1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

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