Law & the Courts

This Day in Liberal Judicial Activism—February 26


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

Josh Hawley Voted for “Pro-Choice” Judge

Over the weekend, Senator Josh Hawley told Jonathan Swan that “I am only going to support nominees who have a strong record on life.”

But two weeks ago, Hawley voted in favor of the nomination of Karin Immergut, a judicial nominee from Oregon. Immergut is described by Oregon news outlets as a “moderate, pro-choice Republican” who presided over a case in which a couple was awarded $2.9 million by a jury after claiming that the mother would have aborted her baby had she known the baby had Down syndrome.

​No word from Hawley on how he came to the conclusion that Immergut has a “strong record on life” or how he was satisfied about her views on substantive due process.

Law & the Courts

On Senator Hawley’s Concerns About D.C. Circuit Nominee Neomi Rao

According to this Axios article, Senator Josh Hawley has “deep concerns” about what D.C. Circuit nominee Neomi Rao’s views on abortion and/or Roe v. Wade might be. In the article, Hawley states that he is “only going to support nominees who have a strong record on life.” He elaborates:

To me, that means … someone whose record indicates that they have respect for what the Supreme Court itself has called the interests of the unborn child; someone whose record indicates they will protect the ability of states and local governments to protect the interests of the unborn child to the maximum extent … and number three somebody who will not extend the doctrines of Roe v. Wade and Casey, which I believe are deeply incompatible with the Constitution.

As I have made clear for years, I share Senator Hawley’s view that Roe v. Wade and Planned Parenthood v. Casey “are deeply incompatible with the Constitution,” and I believe that their overturning is a constitutional imperative. That said, I have to wonder about the standard that Hawley voiced and elaborated.

How many of the thirty federal courts of appeals judges that President Trump appointed over the past two years had an actual “strong record on life,” as Hawley defines the concept? It seems to me far from clear that Chief Justice Roberts (for whom Hawley clerked) had such a record when he was appointed to the Court. Ditto for Justice Thomas, Justice Alito (some pro-lifers expressed concerns about his record), and Justice Gorsuch and Justice Kavanaugh (both of whose nominations Hawley strongly supported). But perhaps the concept of what a “record indicates” is sufficiently malleable that they all would pass.

I don’t claim to know much of anything about Neomi Rao’s views on abortion or on Roe v. Wade. I see that in her student law-review note twenty years ago—against the use of philosophers in judicial decisionmaking—she faulted the Court in Roe for relying on Plato and Aristotle, and she stated that “there were many persuasive legal arguments against recognizing a constitutional right to abortion”:

For instance, substantive due process arguably has no textual support in the Fourteenth Amendment Due Process Clause, and was at any rate severely discredited after the Lochner era. Furthermore, most states have historically prohibited abortion. The Texas statute struck down in Roe was enacted in 1857, and had remained virtually unchanged until the Court’s decision in Roe.

Is it crystal clear what Rao’s views on Roe were twenty years ago? Do we know what her views are now on abortion and Roe? As with almost all nominees, probably not. All other things being equal, I’d prefer the rare nominee who indisputably has a clear record of sound views on these matters.

But this far down the path in the confirmation process, I don’t think that all other things are equal. Rao has outstanding qualifications for the D.C. Circuit seat to which she has been nominated, and it would be a very costly fiasco if her nomination were to fail.

Insofar as Hawley has concerns about Rao’s possibly being elevated to the Supreme Court some day, I think that it’s fair to say that he has amply highlighted those concerns.

Law & the Courts

Reinhardt Reversed Again

The late 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 unanimous per curiam ruling today. In that ruling, the Court vacated the Ninth Circuit’s en banc ruling in Rizo v. Yovino in which Reinhardt was listed as the author of the six-judge majority opinion. Five other judges, in three separate concurrences, disputed the (supposed) majority’s position that an employer’s consideration of prior pay is impermissible under the Equal Pay Act. So without Reinhardt’s vote being added in, there would not have been a majority on the issue.

Rizo was issued on April 9, 2018, and Reinhardt died on March 29, 2018. In its opinion, the Court rejects the proposition, made in a footnote to the listing of the judges who took part in Rizo, that “the majority opinion and all concurrences were final” by the time of Reinhardt’s death:

We are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.

If it seems unfair to pin this reversal on Reinhardt, please recall that Reinhardt himself pulled the same stunt a few months earlier when he added his dead colleague Harry Pregerson to his opinion to create a majority.

Law & the Courts

This Day in Liberal Judicial Activism—February 25

(Stephen Lam/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.

Law & the Courts

This Day in Liberal Judicial Activism—February 24

Supreme Court is seen in Washington, D.C., November 27, 2017. (Yuri Gripas/Reuters)

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

(Chip East/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

Judicial Sanity on Climate-Change Litigation

Back in November 2016, in what I described as “perhaps the most pervasively lunatic ruling I have ever seen,” federal district judge Ann L. Aiken (of the District of Oregon) denied the Obama administration’s motion to dismiss the lawsuit in Juliana v. United States in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate. I won’t repeat Aiken’s howlers here. I will note that the opportunity that the Supreme Court has given to the Ninth Circuit to correct Aiken’s mess remains pending: the government’s interlocutory appeal is now in the process of being briefed.

Meanwhile, I am pleased to report a very sensible ruling issued this week in a similar case.

In Clean Air Council v. United States, an environmental organization and two children claim that the president and various cabinet officers and agencies are violating their rights by “rolling back” environmental regulations and by making related personnel and budget changes, and they seek a judicial declaration against any rollbacks that would increase the frequency or intensity of the life-threatening effects of climate change.

In his opinion, federal district judge Paul S. Diamond (of the Eastern District of Pennsylvania) dismissed plaintiffs’ action on two alternative grounds: plaintiffs’ lack of standing and their failure to state a legally cognizable claim. The standing holding rests in turn on various independent grounds, including no actual or imminent injury, no traceability of alleged injuries to defendants’ actions, and non-redressability. Here’s an excerpt on non-traceability:

Remarkably, Plaintiffs purport to trace their injuries to the President firing Secretary of State Rex Tillerson and replacing him with Mike Pompeo.…

To find that increased emissions are “fairly traceable” to Defendants’ personnel and budgetary actions, I must speculate as to what actions the Federal agencies and the fired personnel would have taken but for the budget cuts or firing decisions. Presumably, I must predict the actions the Department of State would have taken under Secretary Tillerson that it will not now take under Secretary Pompeo and how Plaintiff’s injuries are traceable to that difference. Indeed, Plaintiffs seek to depose former Secretary Tillerson. This is absurd.

Above all, Diamond’s ruling is shaped by an elementary insight that escaped Aiken:

Plaintiffs … effectively ask me to supervise any actions the President and his appointees take that might touch on “the environment.” … Because I have neither the authority nor the inclination to assume control of the Executive Branch, I will grant Defendants’ Motion. [Emphasis added.]

Law & the Courts

This Day in Liberal Judicial Activism—February 22

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.”

Law & the Courts

This Day in Liberal Judicial Activism—February 21


1996—In Fierro v. Gomez, a Ninth Circuit panel, in an opinion by Judge Harry Pregerson, rules that California’s method of execution by lethal gas violates the Eighth Amendment.

2017—Defying the Supreme Court’s landmark Second Amendment ruling in Heller v. District of Columbia (2008), the en banc Fourth Circuit rules by a 10-to-4 vote (in Kolbe v. Hogan) that Maryland’s ban on so-called “assault weapons” and high-capacity magazines is constitutionally permissible. (Read Charles Cooke and David French for extensive critiques of the Fourth Circuit’s evasions and errors.)

Law & the Courts

This Day in Liberal Judicial Activism—February 20


1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)

Law & the Courts

Victory for Texas Catholic Conference

Last summer, I discussed (1) the outrageous discovery order that would have intruded on the internal communications of the Catholic bishops in Texas, who weren’t even parties to the case in which abortion providers challenged a provision of Texas law that would require them to bury or cremate fetal remains; and (2) the strong Fifth Circuit ruling blocking that discovery order.

In good news from today’s order list, the Court denied the certioriari petition in which abortion providers challenged that Fifth Circuit ruling.

The abortion providers’ certiorari petition was extraordinary in at least one respect: It called for the Court to exercise its supervisory power to vacate the Fifth Circuit’s ruling because of alleged legal errors and because of the panel’s supposed “flagrant departure from the norms of judicial conduct.”

Amazingly, the petitioners’ lead item in support of their claim of “flagrant departure” was that the majority opinion described the challenged statute as “a law specifying legitimate methods for disposal of fetal remains.” But the majority plainly was accurately describing what the law did, not (contrary to what petitioners claimed) expressing its own view of which methods were legitimate.

As the Becket Fund pointed out in its brief in opposition to the certiorari petition:

Most of Petitioners’ ire is reserved for the two-page concurring opinion of Judge Ho. But he merely made some factually accurate observations, expressed regret that the case proceeded in the manner it had, and (accurately) described the point of view of the Bishops. He gave no instructions to the lower court and did not step out of bounds of the role of a nonbinding concurring opinion, which unsurprisingly may reveal a judge’s views about a case.

Given the stridency of the abortion providers’ certiorari petition, it’s noteworthy that there was not a single recorded dissent from the Court’s denial.

Law & the Courts

Today’s Peculiar Summary Reversal

Last year, on remand from the Supreme Court’s 5-3 ruling in Moore v. Texas (2017), the Texas Court of Criminal Appeals (which, in Texas’s bifurcated court system, is its highest state court for criminal matters) ruled that Bobby James Moore did not have an intellectual disability that rendered him ineligible for the death penalty. In a per curiam opinion today, the Supreme Court summarily reversed the Texas Court of Criminal Appeals and held that Moore is not eligible for the death penalty. Chief Justice Roberts wrote a one-paragraph concurring opinion, and Justice Alito, joined by Justice Thomas and Justice Gorsuch, dissented.

A few observations:

1. For the reasons spelled out by Justice Alito in his dissent, I find this a peculiar case for a summary reversal (a reversal, that is, without inviting briefs on the merits and oral argument).

The Court ordinarily reserves summary reversal for situations in which a lower court has clearly failed to abide by the Court’s precedents. But the per curiam opinion itself strongly suggests that this standard wasn’t met: the opinion concludes merely that the Texas court’s determination “rests upon analysis too much of which too closely resembles what we previously found improper.” As Alito argues, “each of the errors that the majority ascribes to the state court’s decision is traceable to Moore’s failure to provide a clear rule” in 2017.

Further, instead of clarifying what the proper legal standard is, the per curiam majority simply engages in its own factfinding. Again, as Alito explains, that is not how the Court typically understands its role.

2. I find the Chief’s concurring opinion especially troubling. Two weeks ago, in pondering the Chief’s vote to block Louisiana’s abortion law from taking effect, I stated that “I don’t think that the Chief’s vote signals anything about how he will rule on the merits of the case” and that “I would be very surprised if he regards the Court’s 2016 decision in Whole Woman’s Health v. Hellerstedt (from which he dissented) as sound precedent.” But today the Chief treats as governing precedent the Court’s 2017 decision in Moore, in which he wrote the dissent (for himself, Thomas, and Alito).

So I now have to wonder whether my take two weeks ago was wrong. If so, there could be real trouble ahead.

3. Justice Kavanaugh’s evident* joinder in the per curiam opinion is also surprising. He of course wasn’t on the Court for the 2017 decision in Moore. (Neither was Gorsuch.) But that fact provides little if any reason to treat Moore as sound precedent. If anything, it ought to counsel against deciding the matter summarily.

4. Why not instead have allowed the four liberal justices to grant full review in this case? That way, the Court could have reconsidered whether the 2017 ruling in Moore was correct, and, if the Court determined that it was, it could have provided the much-needed clarity that the Chief, in his concurrence today, says is still lacking.

* I say “evident” only because the per curiam opinion does not list the justices who joined it. It’s theoretically possible, I suppose, that Kavanaugh dissented but chose not to register his dissent, but that would be inconsistent with my understanding of the usual practice.

Law & the Courts

This Day in Liberal Judicial Activism—February 18

(Photo Illustration: NRO)

1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty.

Law & the Courts

This Day in Liberal Judicial Activism—February 17

The U.S. Supreme Court in Washington, D.C., November 13, 2018 (Al Drago/Reuters)

1964—In Wesberry v. Sanders, the Supreme Court somehow extracts from the provision in Article I, section 2 that members of the House of Representatives be chosen “by the People of the several States” a supposed mandate that congressional districts in each state have, as nearly as practicable, equal populations.

In dissent, Justice Harlan lambastes the majority opinion as “unsound logically on its face, and demonstrably unsound historically.” He explains that Article I, section 4 confers on each state “plenary power to select their allotted Representatives in accordance with any method of popular elections they please, subject only to the supervisory power of Congress.” He closes by observing that the Constitution “does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short,” and by warning that the Court’s “stability” depends “not only on its being alert to keep the other branches of government within constitutional bounds, but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.”

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