Law & the Courts

Justice Kavanaugh’s Dissent in Title VII Ruling

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In my initial post on today’s ruling in Bostock v. Clayton County, I contrasted Justice Gorsuch’s majority opinion with Justice Alito’s dissent. Justice Kavanaugh also wrote an excellent dissent, one that is, I think, fully compatible with Alito’s. I’ll briefly offer some highlights here.

Kavanaugh draws the important distinction between “literal meaning” and “ordinary meaning” and emphasizes that judges are bound by the latter. (Pp. 6-11.) He argues that the ordinary meaning of the phrase “discriminate because of sex” plainly does not encompass discrimination because of sexual orientation: “In common parlance, Bostock and Zarda were fired because they were gay, not because they were men.” (Pp. 11-22.) (His dissent focuses on discrimination because of sexual orientation; he observes in a footnote that his analysis would apply “in much the same way” to discrimination on the basis of gender identity.)

Kavanaugh also points out that in the Court’s many previous cases involving sexual-orientation discrimination, “[n]ot a single Justice stated or even hinted that sexual orientation was just a form of sex discrimination.” That observation ought to apply to special force to the Chief Justice: How could he have dissented in Obergefell v. Hodges without addressing and rejecting the claim that laws that define marriage as the union of a man and a woman constitute sex discrimination subject to heightened scrutiny under the Equal Protection Clause?

Kavanaugh notes that in the first ten federal appellate cases to consider the issue “all 30 federal judges agreed that Title VII does not prohibit discrimination because of sexual orientation. Although the majority opinion “insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written…., that assertion is tough to accept.” Yes, indeed.

 

Law & the Courts

A ‘Pirate Ship’ Sailing under a ‘Textualist Flag’

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In today’s much-awaited ruling in the Title VII cases (decided together under the caption of Bostock v. Clayton County), the Supreme Court ruled by a vote of 6 to 3 that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of … sex” in violation of Title VII. Justice Gorsuch wrote the majority opinion, which was joined by the Chief Justice and the four liberal justices. Justice Alito and Justice Kavanaugh each wrote dissents, with Justice Thomas joining Alito’s dissent.

In his dissent, Alito memorably likens Gorsuch’s majority opinion to a “pirate ship”:

It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

As someone who had much higher expectations for Gorsuch (and for the Chief Justice), I’m sorry to say that I completely agree with Alito. In this post, I will highlight some of the reasons why. Let me first acknowledge, though, that I do not view the path to the correct statutory answer as a simple one. It requires care to avoid some pitfalls.

1. Gorsuch’s majority opinion “proceed[s] on the assumption that ‘sex’ … refer[s] only to biological distinctions between male and female” (Majority at 5), but contends that “homosexuality and transgender status are inextricably bound up with sex”: “to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” By his account, if an employer is okay that a female employee is attracted to men, that employer is discriminating on the basis of sex if he penalizes a male employee for being attracted to men. Ditto if the employer retains a self-identifying female “who was identified as female at birth” but fires a person who now identifies as female “who was identified as a male at birth.” (Majority at 10-11.)

As a technical matter, Alito points out that it is indeed “quite possible for an employer to discriminate on those grounds [i.e., sexual orientation or gender identity] without taking the sex of an individual applicant or employee into account”—e.g., through a blanket policy against hiring gays, lesbian, or transgender individuals. Indeed, he observes, employees’ counsel conceded the point at oral argument. (Dissent at 8-9.)

More importantly, Alito explains that the proper textualist inquiry concerns what the words of a law “conveyed to reasonable people at the time” it was enacted. (Dissent at 23 (quoting Scalia’s Reading Law).) “Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and unknown civilization.” (Dissent at 24-25.) “In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity.” (Dissent at 25.) That is so for several reasons, Alito explains:

First, in 1964 the concept of prohibiting discrimination “because of sex” was “a familiar and well-understood concept, and what it meant was equal treatment for men and women.” (Dissent at 25; see pp. 25-28.)

Second, while “it is painful to be reminded of the way our society once treated gays and lesbians …., the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment”:

We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment.

The questions answer themselves.

Third, “Americans in 1964 … would have been bewildered to hear that this law also forbids discrimination on the basis of ‘transgender status’ or ‘gender identity,’ terms that would have left people at the time scratching their heads.” (Dissent at 34; see 34-35.)

2. Rather than attempt to harmonize his radical new interpretation of Title VII with settled practices under that statute and other laws prohibiting sex discrimination, Gorsuch dismisses invocation of these settled practices as “naked policy appeals” and as complaints about “undesirable policy consequences.” (Majority at 30-32.) But the longstanding acceptance of sex-specific restrooms, locker rooms, shower facilities, and dress codes—all of which require taking account of an employee’s sex—severely complicates Gorsuch’s claim that any employer policy that requires taking account of an employee’s sex clearly discriminates on the basis of sex under Title VII.

3. Gorsuch’s ruling will almost surely have extreme consequences. Those consequences wouldn’t provide a reason to misread the text of the law. But they ought to have induced more humility about whether Gorsuch’s reading is in fact right.

As Alito spells out, those consequences extend to whether bathrooms and locker rooms may be sex-specific (pp. 45-47), whether women’s sports and girls’ sports may be reserved for females (pp. 47-48), and whether colleges may assign dormitory rooms by sex (p. 48).

Gorsuch doesn’t dispute that such consequences will ensue; he says only that these “are questions for future cases.” (Majority at 31-32.)

4. In a telling but otherwise trivial passage, Gorsuch states that the Court granted certiorari in these cases “to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons.” (Majority at 4 (emphasis added).) What his “at last” obscures is that until 2017 there had long been a “unanimous consensus” (Dissent at 43) among the courts of appeals that Title VII’s prohibition on discrimination because of sex did not cover discrimination on the basis of sexual orientation or transgender status. As Alito notes, even the EEOC—well known for its adventuresome interpretations (that’s my observation, not Alito’s)—somehow “failed to see [what Gorsuch contends is] obvious for the first 48 years after Title VII became law.”

Law & the Courts

Judicial-Nominations Update

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Last week, the Senate Judiciary Committee reported out Cory Wilson’s nomination to the Fifth Circuit, a day after Mitch McConnell filed for cloture on Justin Walker’s nomination to the D.C. Circuit. So the nominees to fill the only two remaining federal appellate vacancies are now before the full Senate.

Walker’s confirmation vote is expected imminently. That would make him President Trump’s 199th Article III judicial confirmation. On Wednesday, the Judiciary Committee will hold a hearing on five district court nominees that was originally slated for last week before being postponed.

Below is a full update on the status of President Trump’s judicial nominations.

Current and known future vacancies: 85

Courts of Appeals: 2

District/Specialty Courts*: 83

Pending nominees for current and known future vacancies: 48

Courts of Appeals: 2

District/Specialty Courts*: 46

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

Days Since Original Nomination Both Blue Slips Returned? Judiciary Committee Hearing Date
None

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
None

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Justin Walker 5/4/20 39 6/4/20
Cory Wilson 5/4/20 39 6/11/20

Nominees Awaiting Floor Votes: 18

Courts of Appeals: 2

District/Specialty Courts*: 16

Days Pending

  • # of pending nominees originally nominated > 600 days ago: 1
  • # of pending nominees originally nominated > 500 days ago: 4
  • # of pending nominees originally nominated > 400 days ago: 4
  • # of pending nominees originally nominated > 300 days ago: 5

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 116th Congress: 119

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 98

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day204

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 151

* Includes the Court of Federal Claims, Territorial Courts, and the International Trade Courts

All Article III Nominees Confirmed by the Senate since Inauguration Day: 198

Supreme Court: 2

Courts of Appeals: 51

District/International Trade Courts: 145

Law & the Courts

This Day in Liberal Judicial Activism—June 15

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Justice William Brennan in 1972 (Library of Congress)

1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.”

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

Law & the Courts

This Day in Liberal Judicial Activism—June 14

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Supreme Court Associate Justice Ruth Bader Ginsburg (Joshua Roberts/Reuters)

1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his desegregation plan for the Kansas City, Missouri, School District—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.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.

Law & the Courts

This Day in Liberal Judicial Activism—June 13

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Former Chief Justice Earl Warren

1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction.

In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”

Some 17 months later, in a per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

Law & the Courts

This Day in Liberal Judicial Activism—June 12

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The American flag flies at Guantanamo Bay. (Mandel Ngan/Getty)

2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

Law & the Courts

Fifth Circuit Ruling Overturns District Court Order on Texas Mail-In Ballots

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I somehow missed the Fifth Circuit ruling a week ago (in Texas Democratic Party v. Abbott) that overturned a flamboyant district-court order that would have required Texas officials to allow mail-in voting by any voter who claims disability because of lack of immunity from or fear of contracting coronavirus.

In his majority opinion, Judge Jerry E. Smith excoriates district judge Fred Biery for “an order that will be remembered more for audacity than legal reasoning.” Rejecting the proposition that federal judges have “a roving commission to rewrite state election codes,” Smith rejects the argument that Texas violates the Equal Protection Clause by not providing all voters the vote-by-mail privilege that Texas provides to persons aged 65 and over. (Slip op. at 16-25.) He similarly concludes that plaintiffs’ claim that Texas is discriminating “on account of age” in violation of the Twenty-Sixth Amendment fails under rational-basis review. (Pp. 25-28.)

In addition to joining Smith’s opinion, Judge James C. Ho wrote his own concurring opinion. Ho’s opinion makes two important points. First, he emphasizes that “courts have repeatedly found that mail-in ballots are particularly susceptible to fraud.” That factor makes it all the more appropriate that any “expansion of mail-in voting … be done by legislators, not judges.” (Pp. 35-40.) Second, if Texas law were deemed to violate the Twenty-Sixth Amendment, the appropriate remedy under Supreme Court precedent (Justice Ginsburg’s majority opinion in Sessions v. Morales-Santana) would appear to be a “leveling-down” injunction that would remove the special privilege from voters 65 and over, not a leveling up that would extend mail-in voting to those under 65. (Pp. 40-42.)

Judge Gregg Costa concurred in the judgment on the ground that the district court should have invoked the doctrine of Pullman abstention and declined to rule on the plaintiffs’ claims. (Pp. 43-47.)

(Smith was appointed by Reagan, Ho by Trump, Costa by Obama, and Biery by Clinton.)

Law & the Courts

Divided Seventh Circuit Panel Decision Against DHS ‘Public Charge’ Rule

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In a decision yesterday (in Cook County v. Wolf), a divided panel of the Seventh Circuit left in place a district court’s preliminary injunction that prevents the Department of Homeland Security from enforcing its newly adopted “public charge” rule. In DHS’s summary, its rule “requires most aliens seeking to extend their nonimmigrant stay or change their nonimmigrant status to show that, since obtaining the nonimmigrant status they seek to extend or change, they have not received public benefits (as defined in the final rule) for more than 12 months, in total, within any 36-month period beginning Oct. 15, 2019.” (In enforcing its rule, DHS has explained that, due to litigation-related delays, it won’t look to public benefits received before February 24, 2020.) The district court’s preliminary injunction applies only within Illinois; it is in force pending the resolution of the litigation, at which time it will presumably be replaced by a permanent injunction.

Seventh Circuit chief judge Diane Wood wrote the majority opinion, which was joined by Judge Ilana Rovner. Judge Amy Coney Barrett penned a powerful dissent (which runs from pages 42 to 82 of the slip opinion). For those keeping score at home, Wood is a Clinton appointee; Rovner, a Bush 41 appointee, is among the court’s most liberal members; and Barrett is a Trump appointee and a prominent contender for his next Supreme Court nomination.

The majority and the dissent agreed that, under so-called step one of the Chevron framework of review of agency rules, Congress had not spoken directly to the meaning of the Immigration and Nationality Act’s provision that a noncitizen may be denied admission or adjustment of status if the noncitizen “is likely at any time to become a public charge.” But, as Barrett explains, they disagree significantly on how that provision should be read, and that disagreement largely explains why they divide on Chevron’s step-two question, whether DHS’s interpretation of that provision is reasonable. Here is the opening paragraph of Barrett’s dissent:

The plaintiffs have worked hard to show that the statutory term “public charge” is a very narrow one, excluding only those green card applicants likely to be primarily and permanently dependent on public assistance. That argument is belied by the term’s historical meaning—but even more importantly, it is belied by the text of the current statute, which was amended in 1996 to increase the bite of the public charge determination. When the use of “public charge” in the Immigration and Nationality Act is viewed in the context of these amendments, it becomes very difficult to maintain that the definition adopted by the Department of Homeland Security is unreasonable. Recognizing this, the plaintiffs try to cast the 1996 amendments as irrelevant to the meaning of “public charge.” That argument, however, flies in the face of the statute—which means that despite their best efforts, the plaintiffs’ interpretive challenge is an uphill battle that they are unlikely to win. [Abbreviations omitted.]

Barrett also explains at some length (pp. 43-49) that “[t]here is a lot of confusion surrounding the public charge rule”: “Contrary to popular perception, the force of the rule does not fall on immigrants who have received benefits in the past. Rather, it falls on nonimmigrant visa holders who, if granted a green card, would become eligible for benefits in the future.” It’s very unfortunate that immigrants who will never be subject to the public-charge rule are (in Barrett’s words) “dropping or forgoing aid out of misunderstanding or fear.” I wonder how much those who have been engaged in hyperbolic attacks on the rule have been responsible for that result.

Law & the Courts

This Day in Liberal Judicial Activism—June 11

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Justice Harry Blackmun.

1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.

The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled. And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

Law & the Courts

The Real Constitutional Difficulty with D.C. Statehood

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In the New York Times, former UN ambassador and national security adviser Susan E. Rice urges Congress to pass a bill giving the District of Columbia statehood. Whatever one thinks of her arguments from a purely political standpoint, there is some constitutional difficulty with the idea. Rice gives the back of her hand to “specious legal arguments” without stating what all of them are, let alone rebutting them.

Her link for the allegedly specious arguments is to a 2016 piece by the Cato Institute’s Roger Pilon, who had several arguments. The only one Rice notices is his weakest, that the intention of the founders was to have a sizable district over which the federal government has exclusive jurisdiction. Pilon may be right about that intention, but it would not violate the letter of Article I, section 8, clause 17 (giving Congress power to establish the “seat of government”) for most of the present District to be made a state in its own right.

A stronger argument by Pilon that Rice does not notice is this:

Just as the original creation of the District required the consent of the contributing states, so too, as with all agreements, does any change in the terms of that grant require the consent of the parties—and Maryland has given no indication that it would consent to having a new state created on its border from what was formerly part of the state.

That might be right—though it too is not clearly dictated by the letter of the Constitution. But by far the strongest constitutional argument is the one Pilon saved for last.  Making the District a state—leaving behind a tiny “federal district” in which only a handful of people reside—would seem to necessitate the repeal of the Twenty-third Amendment, ratified in 1961 to give the District the same number of electors in presidential elections as the least populous state. If the residents of the tiny rump that is left to be called the “seat of government” are just those living in the few residences left there, they will have an absurdly outsized power to choose three presidential electors.

H.R. 51, the bill Ambassador Rice champions, deals with this problem in a wholly inadequate way. According to the bill’s text, the majority of D.C. would become the “State of Washington, Douglass Commonwealth”—a name that adds something to distinguish the new state from the other Washington out in the northwest, that pays tribute to Frederick Douglass, long a Washington resident and public official, and that enables the retention of the abbreviation “Washington, D.C.”  The name “District of Columbia,” under H.R. 51, would now be attached to the very small area immediately around the Mall, Capitol, White House, and other principal federal buildings—an area whose metes and bounds are described in great detail in the bill.

Recognizing that some few people will reside even in this tiny area, the bill would permit (but not require) them to vote in the state that was their most immediate previous domicile. The bill further eliminates the inclusion of the District of Columbia as a “state” in the chapter of the U.S. Code governing the electoral college. But that still doesn’t solve the problem of the Twenty-third Amendment, which says the “District constituting the seat of government of the United States shall appoint” presidential electors (my emphasis).

So H.R. 51 takes the trouble to set out an expedited process for the two houses of Congress to take up a joint resolution to repeal the amendment—complete with a superfluous section on what to do if the president vetoes the resolution, which he cannot do (or at least would not, since it takes a two-thirds vote in each house to pass such a resolution). But here’s the problem when all is said and done: H.R. 51 does not make its own execution, with the admission of the new “State of Washington, Douglass Commonwealth,” contingent on the repeal of the Twenty-third Amendment. And that, to use the most appropriate lawyerly characterization, is nuttier than a fruitcake.

The Twenty-third Amendment gives Congress the responsibility to determine how the District’s electors are appointed. At present the method is by the election of D.C. residents, who choose a winner-take-all partisan slate of three electors. There is no reference in H.R. 51 to the elimination of such voting rights on the part of the residents of the seat of government. And if that election were eliminated, the three electoral votes belonging to the radically shrunken District would still exist, and presumably would have to be cast by someone, and counted. Even the much more sensible idea of retroceding most of the present District to Maryland faces the same problem of what to do about the Twenty-third Amendment.

Ambassador Rice rightly recognizes that H.R. 51 will not get through the Senate, even if it passes in the House. And President Trump would surely veto it. But it would serve her cause better if she recognized that there really is at least one serious constitutional difficulty to overcome. Ironically, the adoption almost 60 years ago of the Twenty-third Amendment, which gave D.C. residents some say in presidential elections, practically foreclosed almost any chance of the District’s becoming a state, or even becoming largely part of Maryland once again.

Law & the Courts

This Day in Liberal Judicial Activism—June 10

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Former Chief Justice Earl Warren

1968—What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood, in his own words, as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds? In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds.

Law & the Courts

This Day in Liberal Judicial Activism—June 9

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Supreme Court Associate Justice Sonia Sotomayor at the Supreme Court in Washington, D.C., November 30, 2018. (Jim Young/Reuters)

2008—With opinions about to be issued concerning the en banc petition in Ricci v. DeStefano, Second Circuit judge Sonia Sotomayor and her panel colleagues—fellow Clinton appointees Rosemary Pooler and Robert Sack—evidently realize that they have failed in their bid to bury the claims by 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. They therefore convert their nonprecedential summary order dismissing the firefighters’ claims into an otherwise virtually identical per curiam precedential ruling dismissing the claims.

Three days later, the Second Circuit issues an order denying en banc rehearing by a 7-6 vote. In a blistering dissent, Judge José Cabranes (also a Clinton appointee) condemns the panel’s mistreatment of the firefighters’ claims. As he sums it up:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

The Supreme Court proceeds to grant review and, one year later—while Sotomayor’s Supreme Court nomination is pending—reverses the panel decision.

Law & the Courts

The Hill’s Profile of Sheldon Whitehouse Gets Money and Influence Backwards

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Senator Sheldon Whitehouse (D-RI) questions judicial nominees during a hearing before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., December 4, 2019. (Joshua Roberts/Reuters)

The Hill just profiled Senator Sheldon Whitehouse as the “Democratic Party’s leading voice on the courts” in an article that comes out of the gate with a glaringly false assertion: “Democrats have historically struggled to match the GOP’s intense focus on the courts. They also lack the network of well-funded legal advocacy groups that conservatives use to mobilize supporters.”

This gets it completely backwards. The funding and influence of groups on the Left has long outsized that of conservative organizations. In the history of this nation, the ACLU has been second to none in taking significant constitutional cases to the Supreme Court. A host of other prominent organizations, like the AFL-CIO, NAACP, Planned Parenthood, and the American Federation of Teachers, have been virtual auxiliaries to the Democratic Party for decades. In fact, they were among more than 1,000 groups that joined a $60 million campaign, Health Care for America Now (HCAN), to secure the passage of Obamacare.

This legal dominance also extends to the regulatory front. Environmental and other “dark money” groups funded opposition to the construction of the Keystone XL pipeline in Canada. Some pass-through entities like the Tides Foundation provided funding both for that and for groups that pushed for the Federal Communications Commission’s adoption of net neutrality regulations during the Obama administration.

And that’s just the tip of the iceberg. The Arabella Advisors’ network raised $1.6 billion between 2013 and 2017. It has supported a network of affiliates too numerous to list here, but which include the Sixteen Thirty Fund. That well-endowed group spent $141 million in 2018 alone. Their recipients include Demand Justice and the League of Conservation Voters (LCV). The LCV is Whitehouse’s top donor.

Speaking of which, the Rhode Island senator has made over 250 speeches on the Senate floor on climate change, an LCV priority. He is also a favorite of People for the American Way, the Center for American Progress, and the American Constitution Society. He spoke — about dark money, of all things — before the latter two groups, without noting the irony about how they are funded. In fact, they both receive funding from the Democracy Alliance, which since 2005 has funded liberal groups to the tune of nearly $2 billion.

This Hill article recognizes Whitehouse himself is a prolific filer of amicus briefs, but it does not recognize his filings that side with parties and attorneys who donated to him. Or that he pushed hard to put on the federal bench John McConnell, a prodigious Democratic donor who is now on the Codes of Conduct Committee that is trying to silence the Federalist Society with a judicial membership ban.

Just imagine what people would say about Whitehouse if they held him to his own standards. His recently released “Captured Courts” report, coauthored by Senators Chuck Schumer and Debbie Stabenow, is a long-winded conspiracy theory. The report argues that courts have been nefariously captured by “powerful business interests.” The specifics entail an almost comical account of how Lewis Powell — a noted moderate — inspired this sinister movement with a memo nearly 50 years ago which culminated in a cabal that Whitehouse dubs the “Roberts Five.” By Whitehouse’s suspicious methodology, the changing cast of this quintet includes Justice Anthony Kennedy, who ironically is most famously known as an unpredictable swing justice.

The report becomes more implausible from there. It forgoes any actual evidence of wrongdoing and instead rattles off a list of conservative organizations — claiming that they collectively have raised about $250 million between 2014 and 2017. And Whitehouse has the temerity to argue that conservatives are better funded than the Left.

Whitehouse digs himself a deeper hole with the special attention he gives to one of his favorite targets, the Federalist Society. His report breaks down its corporate donors to reveal that they include — get this — such right-wing giants as Google, Microsoft, and Facebook. The report calls the Society a virtual “judicial lobbying interest group,” but it is in fact much more like a bar association. (But unlike the American Bar Association, the Federalist Society does no lobbying)

And of course, the ABA’s advocacy anchors it firmly on the political left. The same has long been true of the vast majority of American law schools. But Whitehouse hopes his audience will be as willfully blind to basic facts as he is. Whitehouse has the audacity to vilify the holders of an entire intellectual philosophy. His report asserts that originalism itself is “not a legal or constitutional” project, but merely a tool to “serve corporate interests, social conservatives, and ultra-rich Americans.”

Ronan Farrow was recently criticized for not following more careful journalistic standards to expose conspiratorial behavior, but Whitehouse’s methodology makes him look like Edward R. Murrow.

Unfortunately, The Hill seems to have taken Sheldon Whitehouse and his hyper-partisan rants at face value rather than look at what’s behind the curtain. But I suspect Senator Whitehouse won’t always be so fortunate. As the old saying goes, it’s never a good idea to throw stones from glass houses.

Law & the Courts

The Surprising Genesis of Qualified Immunity for Police Officers

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I was surprised to learn that the rule that police officers enjoy so-called qualified immunity from damages suits brought under federal civil rights law (42 U.S.C. § 1983) was established by a unanimous* opinion written by the very liberal Chief Justice Earl Warren in Pierson v. Ray in 1967 in a case involving civil-rights abuses in the Deep South.

The case arose from an incident in 1961 in Jackson, Mississippi, in which members of a group of 15 white and African-American clergymen attempted to use a “White Only” waiting room in a bus terminal. City police arrested the clergymen and charged them with conduct breaching the peace. All 15 clergymen were convicted and given the maximum sentence of four months in jail and a fine of $200, but the charges were dropped on appeal. (In 1965, the Court ruled that the statute under which the clergymen was convicted was unconstitutional.)

Some of the clergymen sued the individual police officers for damages under section 1983 and under common law. One of the questions the Court faced in Pierson was whether the police officers could assert a defense of good faith and probable cause (on the contested proposition that they acted to prevent imminent violence). The Court held that they could. It first ruled that that defense was available under common law:

The common law has never granted police officers an absolute and unqualified immunity, and the officers in this case do not claim that they are entitled to one. Their claim is, rather, that they should not be liable if they acted in good faith and with probable cause in making an arrest under a statute that they believed to be valid. Under the prevailing view in this country, a peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Restatement, Second, Torts § 121 (1965); 1 Harper & James, The Law of Torts § 3.18, at 277-278 (1956); Ward v. Fidelity & Deposit Co. of Maryland, 179 F.2d 327 (C.A. 8th Cir. 1950). A policeman’s lot is not so unhappy that he must choose between being charged with dereliction of duty if he does not arrest when he has probable cause and being mulcted in damages if he does. Although the matter is not entirely free from doubt, the same consideration would seem to require excusing him from liability for acting under a statute that he reasonably believed to be valid, but that was later held unconstitutional, on its face or as applied. [Underlining added.]

The Court then held that the same defense of qualified immunity should apply under section 1983. It set forth its reasoning in two sentences:

As we [said in Monroe v. Pape (1961)], § 1983 “should be read against the background of tort liability that makes a man responsible for the natural consequences of his actions.” Part of the background of tort liability, in the case of police officers making an arrest, is the defense of good faith and probable cause.

Thus, “if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow even though the arrest was, in fact, unconstitutional.” (Emphasis added.)

As, alas, is all too common for Warren Court opinions—especially in the field of criminal law—these breezy assertions don’t have much persuasive force. Law professor Will Baude argues (in “Is Qualified Immunity Unlawful?”) that the Court’s claim regarding a background common-law immunity “does not withstand historical scrutiny.” The sentence I’ve underlined also seems to ignore a basic economic reality: If police officers are going to face liability for damages, a city that wants to hire and retain them is going to have to commit to indemnify them or to find some other way to compensate them for the risk (e.g., higher pay sufficient to cover liability insurance), at least for instances in which the officers haven’t engaged in flagrant misconduct.

I wonder whether some of Warren’s concern for the plight of police officers reflected his recognition that his Court was changing the constitutional rules so quickly and unpredictably that police officers couldn’t possibly anticipate the rules that would be applied retroactively to their conduct. As Warren’s opinion states, “We agree that a police officer is not charged with predicting the future course of constitutional law.”

* Justice Douglas dissented from the Court’s separate holding that judges are entitled to absolute immunity.

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