Law & the Courts

VanDyke Dissent from Denial of En Banc Rehearing

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Back in June, I highlighted Ninth Circuit judge William Fletcher’s surprising and welcome reversal of position in a habeas case (Ford v. Peery). Given that Fletcher ended up denying habeas relief, it’s not surprising that the Ninth Circuit today denied en banc rehearing in the case. But the dissent by Judge Lawrence VanDyke is nonetheless worth a read. Here’s its introduction (citation omitted):

Our circuit’s cases misapplying AEDPA deference are legion, and the resultant game of whack-a-mole the Supreme Court has been forced to play with our habeas decisions is so well known at this point as to need no supporting citation. [Footnote call 1.] But this case takes our habeas dysfunction to a new level. Initially, the panel majority here refused to provide AEDPA deference, granting habeas relief to Petitioner Keith Ford in a split opinion. Confronted with an en banc petition, the panel was forced to reverse itself, issuing an amended opinion that, this time, begrudgingly deferred to the state court’s conclusions on the part of Ford’s case that mattered, and so appropriately denied habeas relief. As Judge Nelson observed in his partial dissent from the panel’s amended opinion, this was a commendable move that likely saved the panel majority from being reversed either by our own court en banc or by the Supreme Court.

If that had been all that the panel majority did, there would be cause for celebration in the West and hope that perhaps our court was really turning over a new leaf. But alas, like a sullen kid who spits in the cookie jar after being caught red-handed, the panel majority decided that if they couldn’t get away with directly defying AEDPA in this case, they could at least opine in their revised opinion about how they would refuse to defer to a purely hypothetical state court ruling not presented in this case at all.

This appears to be an entirely new phenomenon. Our court has a well-documented habit of not properly deferring to actual state court rulings in AEDPA cases, including a long list of summary reversals from the Supreme Court. But I’m not sure I’ve ever seen our court make up a pretend state court ruling just so it could refuse to apply AEDPA deference to it while pummeling a strawman of its own making. Weird.

Have things gotten so bad for my AEDPA-disdaining colleagues that they are forced to invent stuff that they can then hypothetically refuse to defer to, secure in the knowledge that at least those advisory rulings won’t get reversed? It’s possible. But I tend to think they’re likely trying to do something more nefarious. Instead of starting down a new path of issuing advisory AEDPA fumbles, our court should have taken the panel’s amended opinion en banc to nip this new practice in the bud. And in doing so, we could have taken this opportunity to clarify our badly amorphous “binding dicta” rule, making clear that attempts like the panel majority’s here won’t work. Because we didn’t, I respectfully dissent from the denial of rehearing en banc.

And here’s footnote 1:

To give credit where credit is due: my diligent clerk did prepare a very nice string-cite spanning multiple pages. But including it felt awkward—like trying to shame a career offender with his rap sheet.

Law & the Courts

This Day in Liberal Judicial Activism—August 18

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(rootstocks/Getty Images)

2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths.

In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”

In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

Law & the Courts

This Day in Liberal Judicial Activism—August 17

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(Jason Reed/Reuters)

2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”

Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” (How’s that for “careful” and “thoroughly grounded”?)

Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.” But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit will overturn Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.

2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added):

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage.

2020Federal district judge David C. Nye issues a preliminary injunction (in Hecox v. Little) that prevents Idaho from enforcing its Fairness in Women’s Sports Act. The Act bars “students  of the male sex” from athletic teams or sports designated for females. Nye (a Trump appointee) asserts that the Act likely violates the Equal Protection Clause. Among his many confusions, Nye maintains that the Act “discriminates on the basis of transgender status” when it in fact plainly distinguishes on the basis of sex. He thus evades a longstanding circuit precedent holding that barring boys from playing on girls’ high-school volleyball teams does not violate the Equal Protection Clause.

Law & the Courts

This Day in Liberal Judicial Activism—August 16

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Outside the Ninth Circuit Court of Appeals in San Francisco, Calif. (Noah Berger/Reuters)

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

Law & the Courts

This Day in Liberal Judicial Activism—August 15

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(Lucas Jackson/Reuters)

1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”

2000—The New Jersey supreme court rules by a vote of 4-2 (in Planned Parenthood v. Farmer) that a state statute providing for parental notification for abortion violates the state constitution because it treats minors seeking abortion differently from minors who decide to carry their child to term.

Law & the Courts

This Day in Liberal Judicial Activism—August 13

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Connecticut State Capitol in Hartford (f11photo/Getty Images)

2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.)

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment.

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerful dissent make clear.

Law & the Courts

Judicial-Nominations Update

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(Andrew Kelly/Reuters)

The Senate has begun its August recess, later than initially expected, but early enough for the Senate Judiciary Committee to postpone a nomination hearing scheduled for yesterday and a markup scheduled for today.

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

Current and planned future vacancies: 116

Supreme Court: 0

Courts of Appeals: 16

District/Specialty Courts*: 100

Pending nominees for current and known future vacancies: 26

Courts of Appeals: 6

District/Specialty Courts*: 20

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
Jennifer Sung (9th) 7/13/21 30 No Not yet scheduled
Beth Robinson (2nd) 8/5/21 7 No Not yet scheduled

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Toby Heytens (4th) 7/13/21 30 7/28/21

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Gustavo A. Gelpi (1st) 5/12/21 92 7/22/21
Veronica S. Rossman (10th) 5/12/21 92 7/15/21
Myrna Pérez (2nd) 6/15/21 59 8/5/21

Nominees Awaiting Floor Votes:

Courts of Appeals: 3

District/Specialty Courts*: 10

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 117th Congress: 9

Supreme Court: 0

Courts of Appeals: 4

District/Specialty Courts*: 5

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day9

Supreme Court: 0

Courts of Appeals: 4

District/Specialty Courts*: 5

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

All Article III Nominees Confirmed by the Senate since Inauguration Day: 9

Supreme Court: 0

Courts of Appeals: 4

District/International Trade Courts: 5

Law & the Courts

This Day in Liberal Judicial Activism—August 12

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(Zolnierek/Getty Images)

2010—In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal.

Law & the Courts

Will Court Be Perpetual Ex Officio Medical Board on Abortion?

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Forty-five years ago, Justice Byron White lamented (in his dissent in Planned Parenthood v. Danforth (1976)) that the Court’s concoction of a supposed constitutional right to abortion meant that the Court was operating both as “the country’s continuous constitutional convention [and] also its ex officio medical board with powers to approve or disapprove medical and operative practices and standards [on abortion] throughout the United States.” A ruling yesterday by a federal district court in Indiana illustrates that Roe v. Wade and Planned Parenthood v. Casey would forever keep the federal judiciary, and ultimately the Court, in those illegitimate and unworkable roles. It thus accentuates the compelling legal arguments why the Court should overturn Roe and Casey in its decision next Term in Dobbs v. Jackson Women’s Health Organization.

In her 158-page opinion in Whole Woman’s Health Alliance v. Rokita, Judge Sarah Evans Barker confronted “a global assault on the constitutionality of Indiana’s statutory and regulatory restrictions on abortions.” Barker ruled against the constitutionality of several sets of restrictions and in favor of the constitutionality of others. For present purposes, rather than contest her conclusions, I’ll simply highlight that her analysis shows how unstable and malleable the Roe/Casey framework is. A few examples:

Barker rules that Indiana’s law, enacted in 1973, that allows only physicians to perform abortions is unconstitutional with respect to medication abortions. She dismisses the Court’s observation in Mazurek v. Armstrong (1997) that its prior cases “left no doubt that, to ensure the safety of the abortion procedure, the States may mandate that only physicians perform abortions,” and she instead reads Mazurek “to apply only to challenges to the legislative purpose.” Because “the reach of Indiana’s physician-only statute is substantially broader than Montana’s statute in Mazurek” and “the nature of abortion care has evolved substantially in the years since Mazurek was decided,” plaintiffs’ claim “clearly is not foreclosed by Mazurek.”

Barker also rules that Indiana’s requirement that second-trimester abortions be performed in a hospital or an ambulatory outpatient surgical center is unconstitutional. Here too, she sidesteps Supreme Court precedent (Simopoulos v. Virginia (1983)) that “was handed down … almost forty years ago,” as “medical advancements in administering second-trimester abortions have developed substantially” since then.

Barker forbids an informed-consent provision that requires that the woman seeking abortion be advised that “human physical life begins when a human ovum is fertilized by a human sperm.” She states that she “shares Plaintiffs’ concern” that this statement is “an assertion about the moral or ethical personhood of a fetus,” and she “find[s] superficial the State’s efforts to neutralize the import of this statement by declaring it medically accurate, scientifically uncontroversial, and not ideologically charged.”

As Barker notes, three decades after Casey, the elementary question whether applying the “undue burden” standard involves a balancing of benefits and burdens is a question on which “it appears that a split among the circuits is developing.” (She applies Seventh Circuit precedent holding that it does.)

Barker’s analysis, I’ll emphasize, is not entirely one-sided. And it’s no criticism of Barker (a Reagan appointee, as it happens) to note that the undue-burden standard is so irreducibly subjective that it inevitably requires her to indulge, overtly or covertly, her policy preferences.

In Barker’s case, those policy preferences aren’t difficult to detect. Citing Roe, Barker asserts that the Constitution “includes in poignant judicial parlance the freedom from state-required motherhood.” And she several times states that abortion procedures “empty the contents of the uterus.”

In one large sense, the only thing that is extraordinary about Barker’s ruling is how ordinary it is. Citing only cases from the last few years, law professors Mary Ann Glendon and Carter Snead observe in their excellent amicus brief in Dobbs:

Because of the confusion [that inheres in the undue-burden standard], lower courts have even struck down laws similar to laws this Court has already upheld. See Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809 (7th Cir. 2018), cert. granted, judgment vacated sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 184 (2020) (ultrasound and 18-hour waiting period); Planned Parenthood of Ind. & Ky., Inc. v. Adams, 937 F.3d 973 (7th Cir. 2019), cert. granted, judgment vacated sub nom. Box v. Planned Parenthood of Ind. & Ky., Inc., 141 S. Ct. 187 (2020) (parental consent); Bristol Reg’l Women’s Ctr., P.C. v. Slatery, 994 F.3d 774 (6th Cir. 2021) (48-hour waiting period); Falls Church Med. Ctr., LLC v. Oliver, 412 F. Supp. 3d. 668 (E.D. Va. 2019) (ambulatory surgical center requirement for second-trimester abortions).

For this and other reasons, the undue-burden standard “leave[s] state legislatures with little guidance as to what types of restrictions will be deemed valid” and would compel the Court to operate in perpetuity as the nation’s ex officio medical board on abortion.

Law & the Courts

This Day in Liberal Judicial Activism—August 11

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(mj0007/Getty Images)

2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.”

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no.

Law & the Courts

This Day in Liberal Judicial Activism—August 9

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(Yong Hian Lim/Dreamstime)

1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court will void the death sentences that had been imposed on Manson and four other Family members. 

2019—Federal district judge Arenda L. Wright Allen rules (in Grimm v. Gloucester County School Board) that a school board’s policy of assigning students to restrooms based on their biological sex violated the rights of a female student who identified as male under both the Equal Protection Clause of the Fourteenth Amendment and the federal statute known as Title IX.

(One year later, a divided Fourth Circuit panel will affirm Judge Allen’s ruling, and in June 2021 the Supreme Court will deny the school board’s petition for certiorari.)

Law & the Courts

This Day in Liberal Judicial Activism—August 8

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Chief Justice John Roberts (Mandel Ngan/AFP via Getty Images)

2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.”

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL will pull the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report against presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.

Law & the Courts

This Day in Liberal Judicial Activism—August 7

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(Andrew Kelly/Reuters)

2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

2019Sometimes the repeat offender is the judge, not the criminal defendant.

Federal district judge Sheryl Lipman evidently wasn’t happy when the Sixth Circuit reversed her for imposing a sentence of a mere 12 months of home confinement on Dane Schrank, who pled guilty to possession of child pornography for downloading “nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated.” So on remand (in U.S. v. Schrank) Lipman imposes the same soft sentence. Never mind that the Sentencing Guidelines advise a sentence of 97 to 120 months in prison.

A year later, the Sixth Circuit will again vacate Lipman’s sentence as “fundamentally unjust” and will remove her from the case.

2020Mr. Adams began a birth control regimen to end his menstrual cycle.” Such is the denial of biological reality that pervades the Eleventh Circuit panel majority’s ruling in Adams v. School Board of St. Johns County. On the premise that Drew Adams, a girl who identifies as male, is really a boy, Judge Beverly Martin rules that a school board violated the Equal Protection Clause and Title IX by barring Adams from using the boys’ restroom.

As Judge William Pryor explains in dissent, there is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.

Law & the Courts

This Day in Liberal Judicial Activism—August 6

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Former President Bill Clinton (Leah Millis/Reuters)

1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.

Law & the Courts

This Day in Liberal Judicial Activism—August 5

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(Mike Blake/Reuters)

1997—By a vote of 4-3, the California supreme court rules (in American Academy of Pediatrics v. Lungren) that a state law that requires a pregnant minor to obtain parental consent or judicial authorization before she obtains an abortion violates the state constitution.

In one dissent, longtime liberal justice Stanley Mosk charges that the justices in the majority, while purporting to apply the principle governing claims under the state constitutional right to privacy, in fact “reverse the principle, sub silentio.” In another, Justice Marvin Baxter argues that the majority “departs radically from any defensible view of the voters’ intent when they added a right of privacy to the [state constitution] in 1972 and undermines the fundamental and constitutionally protected right of parents to guide and control the upbringing of their children.” In the third, Justice Janice Rogers Brown concludes that the case “is an excellent example of the folly of courts in the role of philosopher kings.”

Law & the Courts

Brennan Center Judicial Nominee Benefits from Democrats’ Dark-Money Double Standard

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A recurring theme since Inauguration Day has been President Biden’s payback to the far-left dark-money groups that elected him, both in the substantive policies he has advocated and in his nominations. Myrna Pérez, his nominee to the U.S. Court of Appeals for the Second Circuit, has spent the past 15 years at one such group, the Brennan Center for Justice.

The organization is named for William Brennan, the Supreme Court justice who championed judicial activism and lambasted originalism and textualism. In Pérez’s own words, Brennan “made famous the idea of a ‘Living Constitution,’ the idea of a constitution that was not static or frozen in time but one that had to be evolving and dynamic in order to actualize its principles. That is the way the Brennan Center thinks about the world; it’s changing and dynamic, and we need to be ready to meet whatever moment is with us.”

The Brennan Center is not required to disclose its donors. It has extensive ties to other liberal dark-money groups, in addition to being one itself. Its largest source of funding has been George Soros’ Open Society Foundations, with millions more coming from the Tides Foundation. It claims to be nonpartisan while embracing a distinctly left-wing agenda.

The Brennan Center is guided less by Justice Brennan’s specific positions than by whatever happen to be the current fashions on the left. For instance, the Brennan Center took the position that the campaign-finance decision joined by Brennan in Buckley v. Valeo (1976) was too protective of political speech and should be overturned.

A major focus of the organization has been advocating for less freedom of speech in connection with elections while simultaneously attacking the most basic measures to ensure the integrity of elections. That includes any and all voter-ID measures, as well as efforts to update voter rolls. As director of the center’s Voting Rights and Election Program, Pérez has been at the forefront of the Brennan Center’s efforts in this regard.

She has not hesitated to wage her attacks in demagogic terms. She attributed what she calls “major backlashes against the expansion of the rights to vote” following President Obama’s election to “people having anxiety over the browning of America” and called recent voting regulations including voter ID and limitations on early voting “the biggest rollback of the right to vote since the Jim Crow era.”

She has taken the losing side of the Supreme Court’s voting-rights decisions in Shelby County v. Holder (2013) and the just-decided Brnovich v. Democratic National Committee. In the latter case, which involved a challenge to Arizona’s out-of-precinct policy and ban on ballot harvesting, she argued for an interpretation of Section Two of the Voting Rights Act that would have wreaked havoc on the nation’s election laws, but she argued that the contrary interpretation “would permit states to return to . . . Jim Crow-era restrictions.” She also invoked the goal of “alleviating Jim Crow efforts, past and present,” in her argument for restoring voting rights to ex-felons. She seems comfortable hurling the ugly specter of Jim Crow at anyone with a different view of election laws — a category broad enough to include six justices of the Supreme Court.

Pérez is one of the most blatant examples we have seen of Biden’s dark-money payback scheme, the nomination of judges who he knows will deliver via the courts the policy outcomes that the Left desires. She is not the only Brennan Center alumna to be nominated to a circuit judgeship. In July, President Biden nominated Jennifer Sung, who spent two years as a Skadden Fellow at the Brennan Center, to the Ninth Circuit.

Not surprisingly, neither nominee has raised any Democratic eyebrows, including those of Senator Sheldon Whitehouse, who fixates on dark money when the organizations reside on the far more modestly funded conservative side. During Pérez’s nomination hearing, Whitehouse’s questions focused on bringing out his agreement with the nominee on the Voting Rights Act and jury trials and their shared aversion to originalism. Missing was any intimation of the nominee’s dark-money background, never mind any of the notorious charts the senator likes to use for his paranoid attacks on groups he does not like.

That’s the way it is when the dark money at issue flows to groups that advantage Democrats. Tomorrow the Senate Judiciary Committee will hold a markup vote for Pérez. Expect its Democratic members to be in lockstep in support of this ideologue, without any intimation of an issue lurking in her dark-money background. Just imagine how differently they would behave if a Republican president nominated an advocate from a conservative organization.

Law & the Courts

There’s No Way to Uphold Mississippi’s Abortion Law under Casey

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The Supreme Court in Washington, D.C, June 14, 2021 (Carlos Barria/Reuters)

The Supreme Court will soon review a Mississippi law prohibiting abortions from 15 weeks onward (with exceptions for maternal health and severe fetal abnormalities). In a recent post, I argued that the Court would have a hard time upholding that law without fully overturning Roe v. Wade and the case that set the current constitutional test for abortion laws, Planned Parenthood v. Casey (1992). (The post identified obstacles to any of 13 possible “middle paths.”) A key premise was that upholding the law would require the Court to scrap Casey and replace its constitutional test with a new one (or have lower courts do so). But any replacement would be impossible to support with legal sources, and would make it hard for the Court to come back later to reverse Roe and Casey in full, as most believe this Court would want.

All of this assumed that there’s no possible reading of Casey under which Mississippi’s law would stand. Some have questioned that. And others have suggested that the Court might reject part of Casey while leaving the rest intact, as undisputed in this case, and thus manage to uphold the Mississippi law without having to embrace either Casey or a replacement doctrine.

I think that on closer inspection, both proposals undeniably misread Casey.

As to the first: Casey held that states may not impose an undue burden on abortion before viability. Those who think the Court could uphold Mississippi’s law without touching Casey say that this law imposes no “undue burden” because it leaves women plenty of time to abort—up to the 15th week. So the law leaves in women’s hands the “ultimate decision,” just as Casey demands. All Casey requires, on this view, is to give women a fair chance to decide whether to abort.

But Casey doesn’t say that a woman must get to make the ultimate decision whether to abort, period. It says she must get to make that call at each stage until viability. (Casey insists that the “ultimate decision” remain hers at six weeks, at seven weeks, and . . . up to viability around 24 weeks.) So the Casey test asks not whether a woman’s right to abort is unduly burdened, but whether her right to abort is unduly burdened at any pre-viability stage of pregnancy. If so, the law is invalid.

Second, those saying the Court could merely reject one part of Casey have supposed that Casey imposed two rules: (1) no undue burdens on abortion, and (2) no prohibitions before viability. On this view, the Court could reject the “no prohibitions before viability” rule, while declining for now to endorse or reject the “no undue burden” test, on the ground that it doesn’t have to: either way, Mississippi’s law would stand, since it imposes no undue burden.

But there aren’t two rules in Casey. There’s only one rule: “Undue burden” is just the thing that states may not impose at any given stage “before viability.” (Or more precisely, undue burdens and prohibitions are what the states may not impose at any stage before viability.) If the Court rejected Casey’s viability rule, there would be no freestanding “undue burden” test left over. So if the Court applied such a rule to Mississippi’s law, it would be embracing something new to replace Casey’s test, rather than simply leaving part of Casey undisturbed (without embracing it). And so the Court would, as I had suggested, own that replacement test, making it hard to come back and fully eliminate a constitutional right to elective abortion later on.

Four points support this reading of Casey:

  1. Casey’s reasoning proves that it meant to reject any prohibition (or undue burden) that covers any point before viability, as shown by these passages:
    • “It must be stated at the outset and with clarity that Roe’s essential holding, the holding we reaffirm, has three parts. First is a recognition of the right of the woman to choose to have an abortion before viability and to obtain it without undue interference from the State. Before viability, the State’s interests are not strong enough to support a prohibition of abortion or the imposition of a substantial obstacle to the woman’s effective right to elect the procedure.” (Casey, 505 U.S. at 846, emphasis added.)
      • NB: Some say this passage was dictum. But Casey expressly regarded the point it was making as a “holding” of Roe, where the point arguably was essential to the result (410 U.S. at 164–65). Likewise, the passage above was bloc-quoted by the Court later on, in Gonzales v. Carhart (2007), 550 U.S. at 146, which also reported the points being made as “holdings.” And for decades, lower courts have uniformly understood the viability rule to be binding.
    • Roe’s central holding, that viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on nontherapeutic abortions.” (Casey, p. 860, emphasis added).
    • “[V]iability [is] the point at which the balance of interests tips.” (p. 861).

By definition, a law that lacks “constitutionally adequate” justification is unconstitutional. Under Casey, then, Mississippi’s law must fall because its alleged public benefits are, as a matter of constitutional law, insufficient to justify its burdens on women from week 15 until viability (~week 24).

  1. Casey’s repetition of “before viability”: Otherwise, why add “before viability” to every statement of Casey’s holding? If all Casey meant by “no undue burdens” is that women need a fair chance to decide to abort, it would have been redundant to add “. . . before viability,” since of course the fair chance would come, if at all, before viability. When else? No one was supposing that a state might leave women a fair chance to abort only after viability — by forbidding abortions early in pregnancy but allowing them later. So this “fair chance” reading of Casey makes a hash of the “pre-viability” language that is “central” and “essential” to Casey’s holding (p. 870). Nor can this reading explain the “earliest point” language in the second Casey quotation above. If “before viability” means anything, it means that viability is the earliest point at which bans — or undue burdens — can start.
  2. The fact that Casey merely (and explicitly) reaffirms Roe as to abortion prohibitions and departs from Roe only in its treatment of incidental regulations that fall short of prohibiting or unduly burdening abortions. Casey didn’t have to belabor the “pre-viability” points above. Everyone would get it. Why? Because in its viability rule, Casey was avowedly reaffirming the core of Roe, and Roe — as no one doubted then, and no one doubts today — forbade all prohibitions that cut even a little bit before viability/start of third trimester (see pp. 872, 879, two lines that Casey and Roe treated interchangeably — see Casey, 872).

That’s confirmed by Roe’s express rationale — which Casey would go on to adopt: that the interest in saving fetal life does not become compelling until viability (see Roe, p. 163). This was fatal under Roe’s application of strict scrutiny.

So no one doubts that Mississippi’s law would have to fall under Roe. Yet Casey made only three changes to Roe, and none helps Mississippi here:

  • First, while Roe imposed heightened scrutiny for all regulations so much as “touching upon” abortion (Casey, p. 861), Casey restored mere rational-basis review for any regulation touching on abortion that did not unduly burden or ban abortions (pp. 873–74). (For example, Roe would’ve imposed strict scrutiny on a law that, say, required clinics to meet modest sanitation requirements, whereas Casey would apply mere rational-basis review, unless the law had the “purpose or effect” of “prohibiti[ng]” abortion or “imposi[ng . . .] a substantial obstacle” to abortion (p. 878).) This shift makes no difference here, since Mississippi’s law does prohibit abortions.
  • Second, while Roe limited which state interests could be pursued through regulation in each trimester (none in the first, the mother’s health in the second, and protection for fetal life only in the third), Casey left states free to pursue any of these interests at any stage of pregnancy, as long as they avoided bans and undue burdens (see Casey, p. 878). Again, since Mississippi’s law is a ban, this development, too, is irrelevant here.
  • Third, for the subset of regulations targeted by Casey (bans and undue burdens), Casey didn’t bother to talk about strict scrutiny, as Roe had. Casey simply declared pre-viability bans/undue burdens invalid per se. But that made no difference, since Roe’s instructions on how to conduct the scrutiny analysis had pre-determined the same results: In reviewing abortion bans, as opposed to incidental regulations serving maternal health, Roe had told courts to find a compelling interest after viability, but not before. This guaranteed that any ban would fail strict scrutiny before viability but pass muster afterward — just what Casey reaffirmed. That’s why Casey could skip right to saying that a law is invalid per se if it bans (or unduly burdens) abortions pre-viability (p. 878). Since this shift from Roe’s framing didn’t change the fate of any bans, it couldn’t affect the fate of Mississippi’s ban.

Thus, for prohibitions, Roe and Casey set the same limits, as Casey kept saying. Since Roe, as Casey also noted, ruled out prohibitions that started before viability/third trimester, Casey does too. So Mississippi’s law fails under both.

  1. Uniform conclusion of every judge to look at this in 30 years. If there were ways around this — ways to square Casey with a prohibition of abortions through part of the pre-viability period — Judge Ho on the Fifth Circuit would’ve found it, as he all but told us in his opinion on Mississippi’s law. But he said he couldn’t. He also said that Mississippi hadn’t pointed to any judicial opinion — not just any case, but any opinion (even a dissent) — finding ways around this. And he string-cited conservative circuit judges who had addressed prohibitions falling even a little bit pre-viability (Judges Manion, Carnes, et al.), and quoted each one’s admission that Casey required invalidation (945 F.3d at 278 n.2.).

So on any honest reading, Casey imposes a single test that Mississippi’s law clearly flunks. That’s why the Court, if it upholds Mississippi’s law, won’t be able to say that it’s applying, but not endorsing anew, Casey (or even part of Casey). The Court will have to scrap Casey and either endorse a replacement test, or effectively wipe out all heightened scrutiny of abortion laws.

Religion

Why Is Washington’s Highest Court Trying to Rewrite a Ministry’s Mission?

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A sign on a tent is seen at Tent City 3, a homeless encampment in Seattle, Washington. (David Ryder/REUTERS)

Seattle’s Union Gospel Mission has been enormously successful in ministering to the city’s homeless population. Two years after program completion, 70 percent of Mission clients are working or going to school full time. Yet the Mission’s employees will freely say that success is just a byproduct of their most important priority: bringing others into relationship with Jesus Christ. It is that focus which makes the Mission so spectacularly successful.

Unlike other, similar groups, the Mission workers’ goal is not simply to provide for their homeless brothers and sisters. Its primary purpose is to bring the love of Jesus Christ and hope for a new life to those who most need it. The Mission seeks nothing less than to see every homeless neighbor loved, redeemed, and restored by meeting urgent physical needs while building relationships and offering faith. And that goal has resulted in the Mission helping cut down the amount of homelessness in the city of Seattle.

“All we do is share the Gospel,” said CEO Scott Chin. That’s not just professional modesty. It’s been the primary objective written into the Mission’s articles of incorporation since its founding nearly nine decades ago. Everything on the staff’s agenda takes second place to sharing Christ because of the Mission’s belief that only a changed heart will prompt a changed life.

It’s a key element of the Mission’s success that its staff members don’t wait for the homeless to come to the shelter. They go out looking for them. Mission teams venture into the more formidable areas of the city, where staff reach out to engage with those huddling around graffitied park tables and tenting under rumbling overpasses.

They offer kindness, a listening ear, and friendly support. They ask, “What do you need?” and try to provide what physical resources they can. And they do all of this as they promote spiritual healing.

It works. Mission workers serve over 1,000 of their homeless neighbors each day. And, again, of the many hurting people who take part in the Mission’s programs each year, about 70 percent are on the right track and either working or in school. It would be difficult to find another organization making such a positive impact in such a difficult area. And in a city where nearly 12,000 homeless individuals crowd the streets every night, that kind of success is vital not only to the lives of those on the streets, but to the well-being of the city itself.

Of course, a philosophy only works if everyone involved buys into it, which is why the Mission requires all full-time employees to share and live out their Christian religious beliefs, be actively involved in a local church, and be willing and able to share the Gospel with those whom they serve.

In 2016, though, a former volunteer decided to apply for a full-time position with the Mission’s legal-aid clinic — despite the fact that he did not agree with the Mission’s religious beliefs or follow its religious-lifestyle requirements. In fact, he wanted to change the Mission’s beliefs and dismiss the very faith that has spurred its remarkable success.

Understandably, the Mission turned down his application. The applicant opted to take the Mission to court, hoping to find a judge who would punish the organization for declining to hire him. He struck gold at the Washington Supreme Court, where all nine justices ruled in his favor, despite the legislature’s exclusion of religious nonprofits from state employment law.

In doing so, the state’s highest court effectively torpedoed a religious freedom that the federal government and nearly every other state protects: the ability of religious organizations to hire those who share and live out the organization’s beliefs. This ruling puts the Mission to an untenable choice: hire someone who has stated his intent to change the organization’s beliefs or shut its doors to the homeless neighbors who rely on the Mission for help.

This ruling is unconstitutional. Which is why the Mission has petitioned the U.S. Supreme Court to hear their case. The Mission — like the thousands of vulnerable individuals that it serves — depends on the nation’s highest court upholding the right of religious organizations to build and sustain organizations of believers who share the same faith.

John Bursch is senior counsel and vice president of appellate advocacy with Alliance Defending Freedom (@Alliance Defends) and represents Seattle’s Union Gospel Mission.

Law & the Courts

This Day in Liberal Judicial Activism—August 4

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U.S. Army aviators assigned to 4-6 Air Cavalry Squadron, 16th Combat Aviation Brigade, maneuver an AH-64 Apache at Yakima Training Center, Wash., May 19, 2021. (Captain Kyle Abraham/US Army)

1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine.

Disproving Douglas’s assessment that collective action by the justices is impossible during the recess, the Court, in an order written by Justice Marshall and agreed to by the seven other justices, overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.”

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court.

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses.

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition.

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.”

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself.

Law & the Courts

Ryan Anderson and Robert P. George on Overruling Roe

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In an excellent op-ed in today’s USA Today, Ryan Anderson and Robert P. George explain why the Supreme Court must overrule Roe v. Wade and Planned Parenthood v. Casey in next term’s big decision in Dobbs v. Jackson Women’s Health Organization. An excerpt:

In what will prove to be the most watched – and most important – Supreme Court case in nearly half a century, the court will have an opportunity to correct a grievous error, one that has not only lent legal, indeed constitutional, cover to the elective killing of unborn children literally by the millions, but has also deeply corrupted American constitutional jurisprudence. If the justices – particularly those nominated as originalists and constitutionalists – fail to correct that error, they will undermine their own and the court’s credibility and precipitate a social revolt from conservative and Republican voters — voters who worked so hard to produce the current composition of the court.

Law & the Courts

This Day in Liberal Judicial Activism—August 3

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Supreme Court Justice Ruth Bader Ginsburg (Jonathan Ernst/Reuters)

1993—By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.

And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee.

Law & the Courts

This Day in Liberal Judicial Activism—August 1

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President Bill Clinton speaks in the briefing room of the White House, June 16, 1998. (Gary Cameron/Reuters)

1996—One generation of liberal judicial activists is more than enough. But President Clinton obviously doesn’t agree, as he appoints Dean D. Pregerson, son of arch-activist Ninth Circuit judge Harry Pregerson, to a federal district judgeship in California.

A year earlier, Clinton had already nominated Berkeley law professor William A. Fletcher to join his mother Betty Binns Fletcher on the Ninth Circuit. But Fletcher fils won’t get confirmed and appointed until October 1998.

Law & the Courts

This Day in Liberal Judicial Activism—July 31

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(Pixabay)

1996—The annals of This Week suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service. Imagine what he could have accomplished with more time!

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates.

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.”

2012—By a vote of 5 to 3, the Missouri supreme court rules (in Watts v. Lester E. Cox Medical Centers) that a statutory cap on non-economic damages in medical malpractice cases violates the right to jury trial set forth in the state constitution. The court overrules its own better-reasoned precedent to the contrary.

Law & the Courts

A Final Chance for SCOTUS to Deliver Justice for Barronelle Stutzman

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

The Supreme Court of the United States has a final chance to deliver justice for Barronelle Stutzman. Let us explain.

On July 2, the Supreme Court of the United States formally declined to review Arlene’s Flowers, Inc. v. Washington — the case of Barronelle Stutzman, a Washington florist who politely declined to put her artistic talents in the service of creating custom floral arrangements for Rob Ingersoll’s same-sex wedding. She did so not out of spite or “prejudice.” She was friends with Ingersoll and sold him whatever flowers he wanted to purchase for whatever reasons he wanted them — no questions asked — for ten years. She did so out of principle. Her religious beliefs commit her not only to love others but also to only celebrate what her faith teaches her are true marriages — those between a man and a woman.

Nonetheless, Stutzman was sued by Washington State and then by Ingersoll — represented by the ACLU — in 2013. She eventually lost at the Washington supreme court. Fast forward about eight years, and it looks like her last chance for legal justice has all but ended.

And at what cost? For Stutzman, it’s enormous. It’s bad enough that she must operate her business in fear of being targeted by other lawsuits, and she can no longer provide floral arrangements for weddings, which was an important source of her income. But she may now also be on the hook for what could be over a million-dollar attorney-fee payment to the ACLU. Even worse, it was not merely Stutzman’s business that was sued. She was sued in her personal capacity. That means this 77-year-old grandmother must pay that enormous attorney-fee award out of her personal assets — her checking account, her house, her retirement, her savings for her children and grandchildren. And for what? Earnestly, politely, and humbly living out her faith.

So make no mistake, when the Supreme Court of the United States refused to hear Stutzman’s case, it allowed a grave injustice to be inflicted by the ACLU and the Washington State courts. Perhaps some of that was on the minds of Justices Alito, Thomas, and Gorsuch when they, to their eternal credit, dissented from the Court’s refusal to hear Stutzman’s case. After all, in a concurrence in Fulton v. City of Philadelphia, Justice Gorsuch lamented how the Court’s refusal to clarify its free-exercise jurisprudence has hurt business owners and religious adherents across the country. No one more so than Barronelle Stutzman.

Now, however, the Court might have a chance for a re-do. That is because of a divided opinion out of the Tenth Circuit in a case recently handed down and soon to be appealed to the Supreme Court. Just a few days ago in 303 Creative LLC v. Elenis, the Tenth Circuit found that Colorado could use its antidiscrimination law — the same law it used against Masterpiece Cakeshop owner Jack Phillips — to force a website designer to create and publish websites celebrating same-sex weddings. The eminent legal commentator Ed Whelan rightly describes the decision as “bonkers.”

It is hard to imagine a result more hostile to free speech and religious liberty than forcing someone to create an artistic work that promotes an idea against their conscience and then force them to publish it online for all to see. It’s also hard to imagine the Supreme Court not taking this case and reversing the lower court’s ruling. The website designer’s attorneys — the wonderful Alliance Defending Freedom (ADF), who also represent Barronelle Stutzman — have announced their intent to ask the Supreme Court to do precisely that.

With this request coming to the Court so soon after it declined to hear Stutzman’s case, could that give her a second chance? On July 27, Stutzman’s attorneys at ADF filed a petition for rehearing with the Court, asking it to reconsider its refusal to hear her case and to at least hold her case until the 303 Creative case is decided.

Normally, such petitions for rehearing are denied almost pro forma. But things might be different, given the exceptional circumstances obtaining. The similarities between Barronelle Stutzman’s case and the website designer’s are striking. Both involve artistic professionals who fully serve LGBT clients — and everyone else — whenever they are not being asked to put their artistic talent and expression in the service of beliefs and practices they cannot in good conscience endorse. Moreover, they share religious beliefs about marriage, and want to create custom wedding art to celebrate marriage consistent with their beliefs — which is, we might add, the truth about marriage. Still further, in both cases the courts found Employment Division v. Smith barred a religious-liberty defense. And in both cases, the courts found that governments could compel these business owners to provide custom art celebrating same-sex marriage in violation of their religious beliefs.

Giving Stutzman a reprieve would be the right thing to do. It is what justice requires. In our pluralistic society, the answer to our disagreements cannot be to strip grandmothers of their life’s savings because they refuse to, in effect, say things, or use their personal gifts to assist others in saying things, that are contrary to their beliefs. Holding a truly final ruling in Arlene’s Flowers until the Court decides 303 Creative would be an easy way to rectify this wrong — and to set the example for how we as a country should handle disagreements.

Ryan T. Anderson is the president of the Ethics and Public Policy Center, the founding editor of Public Discourse, the online journal of the Witherspoon Institute of Princeton, New Jersey, and the author of When Harry Became Sally: Responding to the Transgender Moment (Encounter Books, 2018). Robert P. George is the McCormick Professor of Jurisprudence at Princeton University.

Politics & Policy

How Biden’s COVID-Testing Mandate Violates Civil Rights

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President Joe Biden delivers remarks at the White House at a celebration of Independence Day in Washington, D.C., July 4, 2021. (Evelyn Hockstein/Reuters)

Yesterday President Biden announced that all federal workers who do not get vaccinated for COVID-19 will face a series of burdens and intrusions designed to raise the costs of not submitting to the shot(s). This is a threat to civil liberties that violates the Americans with Disabilities Act, but probably not in the way you think.

No COVID-19 vaccine on the market has yet been granted full FDA approval, only Emergency Use Authorization, which means, according to statute, that Americans have “the option to accept or refuse administration of the product.” FDCA § 564(e)(1)(A)(ii)(III). In a shoddy legal memo, Biden DOJ appointee Dawn Johnsen has interpreted this statutory provision as merely informing people of their right to face severe consequences for opting-out, such as being summarily fired by their government employer. This, despite longstanding precedent from both a federal court and the FDA recognizing that military members are protected from forced administration of unapproved vaccines, even though their rights are generally more attenuated than other federal employees.

But that was then, this is now. According to our scare-monger-in-chief, vaccine dissenters practically have a death wish: “if you’re out there unvaccinated, you don’t have to die . . . get the vaccine.”

From now on, everyone working for the federal government will be asked for their vaccine papers and all undocumented federal workers and contractors “will be required to wear a mask on the job no matter their geographic location, physically distance from all other employees and visitors, comply with a weekly or twice weekly screening testing requirement, and be subject to restrictions on official travel.” If you think these are draconian measures, you are right, and that is precisely the point. In a moment of candor, “Biden aides” admitted to their friends at CNN that the goal “is to render being unvaccinated so burdensome that those who haven’t received shots will have little choice other than to get them.”

This vindictiveness, more than anything, is what renders Biden’s coercive COVID testing flatly unlawful.

The Americans with Disabilities Act, which I had the honor of enforcing as Civil Rights Director at the Department of Health and Human Services, prohibits discrimination against persons with disabilities in both private and public employment. The ADA provides that employers “shall not require a medical examination . . . unless such examination or inquiry is shown to be job-related and consistent with business necessity.” 42 U.S. Code § 12112(d)(4)(A). Note, this prohibition is not limited to medical exams specifically related to disabilities or impacting persons with disabilities. It covers all medical exams for all employees. (ADA regulations confirm this fact, compare 29 CFR § 1630.14(b)(3) with (c)).

Biden’s COVID-19 tests are clearly medical exams that are being mandated as a condition of employment, so the ADA protections apply. The Biden administration will claim it has a legitimate business need, but it will be too late because it has already admitted that its actual purpose is bullying. Not that we needed the admission. To say that science requires a complete travel ban on undocumented federal employees, even when masked, is risible. If masks have lost their effectiveness, one wonders why Biden is rushing to reimpose mask mandates everywhere, including on kindergarteners.

That Biden announced no exceptions to the mandated nasal swabbing makes his policies all the more vulnerable. The best test case will be those retrograde employees who have already had COVID-19 but decline further prophylactic medical interventions. Biden will subject them to near-constant Q-tip probing even though they, like those already vaccinated, are much less likely to be infected and pass it to others. Furthermore, according to the Director of the Centers for Disease Control and Prevention, the amount of virus in breakthrough infection cases in vaccinated people “is pretty similar to the amount of virus in [infected] unvaccinated people.” To connect the dots, yes, people who have recovered from COVID-19 can in some cases get the virus, get reinfected and pass the virus, but we now know that the same holds true for vaccinated persons, yet only the first group of persons will be subject to bi-weekly medical exams. That’s irrational, unless, of course, the point is not infection control, but making the lives of every last unvaccinated person as miserable as possible. Lack of consistency and evidence of pretext are killer arguments against mandated medical tests under the ADA and should be deployed immediately in lawsuits. Lots of them.

Some argue that even if irrational or retaliatory, forced COVID testing does not impose a big enough indignity to sue over. Let’s not be naïve. The DOJ memo and yesterday’s announcement are merely dress rehearsals for the ultimate goal of imposing a national vaccine mandate. When asked yesterday about whether he has the power to do such a thing, Biden said it is still an open question. In truth, the answer comes down to one thing — whether or not Biden thinks he can get away with it. Like the proverbial slow-boiling frog, if there is not a strong reaction now, we’ll all be cooked soon.

Unfortunately, Biden was given some cover by HHS’s Office of the General Counsel during the Trump administration, which inexplicably green-lighted a national moratorium on apartment evictions during the COVID emergency. Although a majority of the Supreme Court apparently agrees that this stunt was patently unlawful, Biden can repurpose HHS’s expanded claim of COVID emergency powers to support a seemingly more on point national vaccine mandate.

We can expect the mandate to be national in scope because, according to Biden, if you are unvaccinated, “you present a problem to yourself, to your family and to those with whom you work.” This indiscriminate vax-shaming is not based on science but ideology. Are you a problem to your loved ones if they have all been vaccinated? Are you a problem to colleagues if you are working 100 percent remotely? What are the risks if you live in an area will low COVID spread? Are you a problem if you always wear masks and socially distance? And what if you’ve already had COVID-19?

We know the answers. Like a glitch in the Matrix that must be corrected, the mere fact that you decline the vaccine defines you as a “problem” with but one logical solution. Force.

Editor’s note: This piece has been updated to reflect that the HHS Office of the General Counsel, not the General Counsel himself, allowed the eviction moratorium. The author apologizes for the error.

Law & the Courts

This Day in Liberal Judicial Activism—July 30

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President George W. Bush at the White House, Washington, D.C., November 2008 (Jason Reed/Reuters)

2003—The seventh cloture vote on President Bush’s nomination of the superbly qualified Miguel Estrada to the D.C. Circuit yields the same result as the first cloture vote nearly five months before: Only four Senate Democrats vote for cloture, and the vote fails to end the filibuster. On September 4, 2003, Estrada withdraws his nomination.

Commenting on the Democrats’ successful filibuster of the Estrada nomination, Senator Chuck Schumer turns faux-originalist: “my guess is that [if] the founding fathers were looking down on the Senate today, they’d smile.” Guess again, senator.

Law & the Courts

National Right to Life’s Atrocious Brief in Dobbs Abortion Case

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As an admirer and supporter of the organization that the National Right to Life Committee once was, I am appalled to see the feeble amicus brief that it filed in Dobbs v. Jackson Women’s Health Organization, the big abortion case to be decided by the Supreme Court next term.

For the first time in three decades, the Court has a compelling opportunity to overturn Roe v. Wade and Planned Parenthood v. Casey and to restore the power of the states to restrict abortion. To its credit, the state of Mississippi has filed an excellent merits brief calling for Roe and Casey to be overruled.

What does National Right to Life, whose stated mission is “to protect and defend the most fundamental right of humankind, the right to life of every innocent human being from the beginning of life to natural death,” do with this opportunity? It submits an amicus brief that, rather than calling for Roe and Casey to be overruled, invites the Court to create a “new roadmap” that will only “begin to reverse the anomalies on which Roe’s tangent from normal legal norms was built.” The saving grace of National Right to Life’s “new roadmap” is that it is so incomprehensible that no one could endorse it.

National Right to Life doesn’t even call for the Court to rule in favor of the constitutionality of the Mississippi law at issue in Dobbs, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality. Instead, it recommends that the Court remand the case to the Fifth Circuit “to apply this Court’s new roadmap.” Beyond the fact that the composition of the Fifth Circuit panel to which the case would ordinarily be remanded is not a favorable one, what possible helpful guidance does National Right to Life imagine that its proposed roadmap would provide?

National Right to Life seems happy to have the Court’s usurpation of the states’ authority to protect the unborn continue for decades. Amazingly, it even asserts that the “decision on whether to reach the end of the road” on its roadmap—i.e., “to restore to the States and to the People the power to protect unborn life throughout pregnancy”—“will likely rest with future Courts.” But there is no reason to think that there will ever be a future Court better positioned to inter Roe and Casey than the current Court is.

National Right to Life no longer plays a leading role in the pro-life world. Its terrible brief should not mislead anyone into thinking that the timid and incoherent approach that it advocates is acceptable.

Law & the Courts

Some Other Noteworthy Amicus Briefs in Dobbs Abortion Case

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With apologies to the submitters of many other amicus briefs that I haven’t yet reviewed, I’ll briefly highlight a few other notable amicus briefs (on top of EPPC’s) in Dobbs v. Jackson Women’s Health Organization:

1. In arguing that Roe and Casey should be overruled, Americans United for Life, the leading pro-life legal advocacy organization, explain how the two rulings are “radically unsettled” and thus “contradict the stare decisis values of consistency, dependability, and predictability and are entitled to minimal stare decisis respect.”

2. Law professors Mary Ann Glendon and Carter Snead emphasize that Roe and Casey are “completely untethered from the Constitution’s text, history, and tradition” and have “imposed an extreme, incoherent, unworkable, and antidemocratic legal regime for abortion on the nation for several decades (pursuant to constantly shifting rules, standards, and rationales).” Further:

The Court’s abortion jurisprudence grafted onto the Constitution a vision of what it means to be and flourish as a human being that isolates mother and child, pitting them against one another in a narrative of zero-sum conflict among strangers, thus depriving them of much needed sources of protection, support, and care.

3. A brief submitted by law professors Teresa Collett, Helen Alvaré, and my EPPC colleague Erika Bachiochi on behalf of some 240 women scholars and professionals and various pro-life feminist organizations squarely contests the “faulty premise” in Casey that “women had ‘reliance interests’ in the judicially-created right to abortion that ensured their capacity ‘to participate equally in the economic and social life of the nation’”:

Data regarding women’s participation in the labor market and entrepreneurial activities, as well as their educational accomplishments, professional engagement, and political participation, reveals virtually no consistent correlation with abortion rates or ratios…. Instead, the data suggest some correlation between abortion, the feminization of poverty, and women’s declining levels of happiness, including fewer and less satisfying long-term committed relationships with partners and the birth of fewer children than women desire by the end of their reproductive lives. There is also some evidence that the Casey plurality’s imprimatur on a male normative experience of reproduction as the model for economic and social participation has retarded meaningful accommodation of pregnancy and motherhood in the workplace and other spheres of society.

 

Law & the Courts

EPPC Amicus Brief in Dobbs Abortion Case

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Last week I highlighted the state of Mississippi’s excellent merits brief in Dobbs v. Jackson Women’s Health Organization, the case presenting the question whether Mississippi’s law that prohibits abortion after 15 weeks of gestational age (except in medical emergencies or in instances of severe fetal abnormality) is constitutionally permissible.

Today is the deadline for amicus briefs in support of Mississippi. Dozens of amicus briefs have already been logged on the Supreme Court’s docket, and there will probably be many more by the end of the day. I figured that I would highlight a few.

I’ll start in this post with the excellent brief submitted by my own institution, the Ethics and Public Policy Center. The brief, authored by constitutional lawyer Charles J. Cooper, his Cooper & Kirk colleagues, and Notre Dame law professor Rick Garnett, compellingly argues that stare decisis considerations cut overwhelmingly in favor of overturning Roe v. Wade and Planned Parenthood v. Casey. An excerpt from its introduction (some citations omitted):

As a matter of the Constitution’s text and history, it is no secret that Roe is not just wrong but grievously so. Roe was roundly criticized as wrong the day it was decided, it has been robustly opposed both within and outside the Court ever since, and no sitting Justice has defended the merits of its actual reasoning.

By the narrowest of margins, this Court in Planned Parenthood v. Casey (1992), refused to overrule Roe—not because it thought Roe was correct, but because it thought Roe must endure as a matter of stare decisis. But 30 years later it has become clear that Casey, too, was egregiously wrong, for each one of the stare decisis factors cited by Casey itself supports Roe’s repudiation. While many Americans may hope and expect that the political victory Roe declared for their side of the abortion debate will remain unquestioned, this expectancy plainly does not constitute the type of detrimental reliance to which this Court has given weight in the stare decisis calculus. Judicial developments and scientific progress have undermined Roe as a matter of fact and law. And Roe’s doctrinal standards, as reframed by Casey, have proven unworkable.

The deeper sentiment behind Casey’s decision— a vision of the Court “call[ing] the contending sides of [the] national controversy” over abortion “to end their national division”—has proved equally unsound. By reaffirming Roe, the Casey majority imagined that it could bind up the national division over abortion. But it was the decision in Roe itself that “stimulated the mobilization of a right-to-life movement,” Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. REV. 375, 381 (1985), and the abortion controversy has endured and intensified since Casey. By reaffirming Roe, the Casey majority hoped that it could forestall a “loss in confidence in the Judiciary.” In fact, 30 more years of Roe’s misrule have proved that the greatest enduring threat to this Court’s legitimacy is Roe itself. By reaffirming Roe, the Casey majority hoped to preserve “the Nation’s commitment to the rule of law.” But rather than safeguarding our constitutional order, Roe and Casey have distorted it. By every measure—including the lines marked out by Casey itself—no judicial error stands in greater need of correction than the one made in Roe.

Law & the Courts

This Day in Liberal Judicial Activism—July 29

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President George W. Bush with judicial nominee, Priscilla Owen in the Oval Office at the White House in Washington, D.C., May 24, 2005. (Shaun Heasley/Reuters)

1994—By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun.

Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.

2003—Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

Law & the Courts

Judge Enjoins West Virginia Law Protecting Girls’ Sports

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In a topsy-turvy ruling last week (in B.P.J. v. West Virginia State Board of Education), federal district judge Joseph R. Goodwin issued a preliminary injunction that requires school officials to allow “B.P.J.,” an 11-year-old boy who identifies as female, to try out for the girls’ cross-country and track teams at his school. Specifically, Goodwin’s order bars school officials from applying to B.P.J. West Virginia’s recently enacted “Save Women’s Sports Bill,” which provides that girls’ sports teams “shall not be open to students of the male sex.”

In reality-denying newspeak, Goodwin asserts that “B.P.J. is an eleven-year-old girl” who was “assigned the sex of male at birth.” On B.P.J.’s claim that the West Virginia law violates the Equal Protection Clause, Goodwin evades the simple fact that the law categorizes on the basis of biological sex by maintaining that B.P.J. is “not most similarly situated with cisgender boys” but is instead “similarly situated to other [sic] girls.” Based on that sleight of hand, Goodwin asserts that “there is an inescapable conclusion that [the law] discriminates on the basis of transgender status.”

Applying the intermediate scrutiny dictated by the Fourth Circuit’s badly misguided decision in Grimm v. Gloucester County School Board, Goodwin opines that the West Virginia law “as applied to B.P.J. is not substantially related to providing equal athletic opportunities for girls.” (Emphasis added.) But surely the law’s relation to a legitimate state interest should be measured in the aggregate, not in each individual application. Further, while some of Goodwin’s argument is specific to B.P.J. (e.g., the puberty-delaying drugs that B.P.J. is taking means that he “will not have any inherent physical advantage” over girls), one big part of it would apply to any other male seeking to participate on a girls’ team—namely, that since the “number of transgender people who wish to participate in school-sponsored sports” is very small as a percentage of the overall population, “permitting B.P.J. to participate on the girls’ teams would not take away athletic opportunities from other [sic] girls.” That argument is patently false for sports in which participation is limited, as any boy who, say, plays on the girls’ basketball time is depriving a girl of playing time every minute he is on the court.

Goodwin goes on to find that the West Virginia law also likely violates Title IX because it “discriminates against [B.P.J.] ‘on the basis of sex.’” That is indeed a plausible extension of the badly flawed reasoning of Justice Gorsuch’s majority opinion in Bostock v. Clayton County. But Goodwin doesn’t seem to realize that the same logic would mean that having separate sports teams for males and females also violates Title IX.

Over the dissents of Justice Thomas and Justice Alito, the Supreme Court made a grave mistake last month in denying review of Grimm v. Gloucester County School Board. Goodwin’s ruling is but one example of the continuing damage that mistake will cause.

Law & the Courts

This Day in Liberal Judicial Activism—July 28

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(Carlos Jasso/Reuters)

2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.”

Law & the Courts

Bonkers Tenth Circuit Ruling Against Free Speech

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In a stunning ruling yesterday in 303 Creative LLC v. Elenis, a divided panel of the Tenth Circuit held that Colorado’s Anti-Discrimination Act “permissibly compels” a graphic and website design company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate opposite-sex marriages. Judge Mary Beck Briscoe wrote the majority opinion, which Judge Michael Murphy joined. Chief Judge Timothy Tymkovich dissented.

I present below Briscoe’s actual reasoning on the Free Speech claim (underlining added; some citations omitted). Everything is fine on points 1 to 6. Indeed, those points seem to be setting up a ruling in favor of the website design company. But Briscoe goes completely off the rails on points 8 and 9.

Briscoe:

1. Colorado’s Anti-Discrimination Act defines a public accommodation as “any place of business engaged in any sales to the public and any place offering services, facilities, privileges, advantages, or accommodations to the public.” Under CADA’s Accommodation Clause, a public accommodation may not “directly or indirectly . . . refuse . . . to an individual or a group, because of . . . sexual orientation . . . the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation . . . .”

2. “It is a ‘fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.’”

3. “Appellants’ creation of wedding websites is pure speech. The websites Appellants intend to offer ‘celebrate and promote the couple’s wedding and unique love story’ by combining custom text, graphics, and other media. The websites consequently express approval and celebration of the couple’s marriage, which is itself often a particularly expressive event.”

4. The Accommodation Clause “force[s] [Appellants] to create websites—and thus, speech—that they would otherwise refuse.”

5. “Because the Accommodation Clause compels speech in this case, it also works as a content-based restriction. Appellants cannot create websites celebrating opposite-sex marriages, unless they also agree to serve customers who request websites celebrating same-sex marriages.”

6. “Whether viewed as compelling speech or as a content-based restriction, the Accommodation Clause must satisfy strict scrutiny—i.e., Colorado must show a compelling interest, and the Accommodation Clause must be narrowly tailored to satisfy that interest.”

7. “Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace.”

8. Although the Accommodation Clause “is not narrowly tailored to preventing dignitary harms,” it is narrowly tailored to Colorado’s interest in ensuring ‘equal access to publicly available goods and services.’”

9. “Excepting Appellants from the Accommodation Clause would necessarily relegate LGBT consumers to an inferior market because Appellants’ unique services are, by definition, unavailable elsewhere…. For the same reason that Appellants’ custom and unique services are speech, those services are also inherently not fungible. To be sure, LGBT consumers may be able to obtain wedding-website design services from other businesses; yet, LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that Appellants offer. Thus, there are no less intrusive means of providing equal access to those types of services.” (Italics in original.)

I cannot fathom Briscoe’s logic in point 9. For Briscoe, it doesn’t matter that there are lots of other website design companies that can provide custom wedding websites that celebrate same-sex marriages. Somehow the very fact that Appellants provide custom websites means that they are providing a service that is “unique” for purposes of the “narrow tailoring” inquiry.

In case you think I’m misunderstanding Briscoe, here is what she sees in the very next paragraph after point 9 (in the context of addressing an argument that her analysis would chill commerce by discouraging businesses from entering the market):

This case does not present a competitive market. Rather, due to the unique nature of Appellants’ services, this case is more similar to a monopoly. The product at issue is not merely “custom-made wedding websites,” but rather “custom-made wedding websites of the same quality and nature as those made by Appellants.” In that market, only Appellants exist.

I think that this is the most stupid analysis of competition that I have ever read. In case you wonder whether there might actually be something extraordinary about Appellants’ custom wedding websites: They haven’t even started offering them yet, and there is nothing in Briscoe’s opinion to indicate that they would not face lots of competition.

More broadly, it is difficult to imagine a ruling more hostile to free speech. Briscoe understands the Colorado law to operate as a “content-based restriction” that “compels” the owner of a small website design company to engage in “pure speech” that expresses “approval and celebration” of something that she opposes. But the very fact that the owner would be customizing her speech for websites celebrating opposite-sex marriages somehow means that services comparable to hers can’t be obtained from other providers.

Briscoe’s ruling would have sweeping consequences. Tymkovich in dissent observes that Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’” In response, Briscoe offers only the quibble that “our holding does not address how CADA might apply to non-commercial activity (such as commissioning a mural for some charitable purpose).” Tymkovich sensibly replies that Briscoe’s quibble

is surely cold comfort for the vast majority of artists, who make a living by selling their work. Artists should not have to choose to either disavow their beliefs or charitably create in order to have control over their own messages.

Law & the Courts

Dems’ Confirmation Strategy Ignores Their Previous Complaints about Republicans

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Senator Patrick Leahy (D., Vt.) speaks during a Senate Judiciary Committee oversight hearing on Capitol Hill, in Washington, D.C., August 5, 2020. (Carolyn Kaster/Reuters Pool)

In 2018, with Donald Trump in the White House and Republicans running the Senate, Democrats regularly complained about the judicial confirmation process. In fact, Judiciary Committee Democrats issued a report titled “Republican Efforts to Stack Federal Courts.”

You’d think that since nine of today’s eleven committee Democrats, including Chairman Richard Durbin (D., Ill.), signed that report, they would take the chance to make the process run as they so loudly said it should.

If you’d think that, you’d be wrong.

Democrats, for example, complained that including two appeals court nominees in the same hearing “ma[de] it more difficult to vet and question them.” Democrats have already done this in twice as many hearings as Republicans did at this point in 2017.

Democrats complained that an average of 131 days from nomination to confirmation was “rushing” appeals court nominees through the Senate. This year, the Senate has been confirming Biden’s appeals court nominees in an average of 68 days.

Democrats complained that Republicans “undermined” the American Bar Association’s role in evaluating judicial nominees, but it looks like Democrats don’t actually care much about the ABA’s ratings after all. In Obama’s first year, judicial nominees with a unanimous “well qualified” ABA rating received an average of eight negative votes from Republicans. In Trump’s first year, judicial nominees with the same top rating received an average of 30 opposition votes from Democrats.

Democrats complained that “Trump’s circuit court nominees have been young, with more than half in their 40s.” That seems more like an observation than a genuine complaint, but no matter. The average age of Biden’s circuit court nominees so far this year is exactly the same as the average age of the same number of Trump’s first-year circuit nominees.

Democrats complained that “Senate Republicans have been rushing nominees through the Senate at a breakneck pace.” Even with 40 percent fewer vacancies to fill, compared to the same period in the Trump administration, President Joe Biden has made more nominations, three times as many nominees have had a Judiciary Committee hearing, and the Senate has confirmed twice as many judges.

How’s this for a little confirmation irony: current president pro tempore senator Patrick Leahy (D., Vt.) signed that 2018 report and took to the Senate floor to decry what he claimed was the Republicans’ “disingenuous double standard” in the judicial confirmation process. Yet here he is today, participating in everything that he said should not be done.

In that same speech, Leahy observed that Republicans, “including many serving today, signed a letter” during the Obama administration about maintaining Senate norms. In April 2017, Democrats, including many serving today, signed a letter opposing any change to Senate rules allowing extended debate. Yes, Leahy signed it too.

When it comes to Senate norms, however, actions speak a lot louder than words.

Law & the Courts

This Day in Liberal Judicial Activism—July 27

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Then-president Donald Trump prior to boarding Air Force One at Joint Base Andrews, Md., January 12, 2021 (Carlos Barria/Reuters)

2018—In a challenge to the Trump Administration’s policies on transgender individuals serving in the military, federal district judge Marsha Pechman orders President Trump to provide plaintiffs information and documents bearing on his deliberations and communications in connection with adoption of the policies. Nearly a year later, a unanimous Ninth Circuit panel (in Karnoski v. Trump) will vacate Pechman’s discovery order and fault her for failing to give proper consideration to the president’s executive privileges.

Law & the Courts

Indulging the Left’s Grievance Narrative on Judges

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Across the ideological spectrum, our political culture is infested by ill-founded grievance narratives. So I was disappointed to discover that Emma Green’s recent Atlantic article (“How Democrats Lost the Courts”) uncritically presents the Left’s grievance narrative on judicial confirmations—a narrative that conveniently neglects the eight years that preceded the Obama presidency. Indeed, it’s often difficult to tell when Green is recounting the Left’s narrative and when she is embracing it as her own.

A few examples:

1. Green begins her article by recalling the defeat of President Obama’s nomination of Goodwin Liu to the Ninth Circuit. She observes that “Republicans set the narrative on Liu,” but she gives no hint of the comprehensive and compelling evidence that supported that narrative (evidence that I summarized in this article). She says that Democrats “tell a story about Republican bad faith and foul play,” but she provides no evidence of either. She contends that “Liu’s nomination languished, held hostage … by Republican procedural maneuvers,” but the “Republican procedural maneuver” she is complaining about is the filibuster that Senate Democrats unleashed in judicial-confirmation battles in 2003. In other words, Liu was hoist on the Democrats’ petard. What’s more, Democratic senator Ben Nelson joined Republicans in voting against cloture on Liu (and it’s also not clear that Liu would have won a straight up-or-down vote, as I discuss in point 4 here).

2. Green writes:

When Democrats recite the parable of Goodwin Liu, they tell a story about Republican bad faith and foul play, but also one of their own failures. Progressives have largely ceded the judiciary to conservatives. Republicans have long been engaged in total warfare on the courts. They see liberal courts as an existential threat to the conservative project, and they have responded accordingly, building a well-funded machine to get true believers confirmed as judges. For years, Democrats never built an equal and opposite infrastructure for installing progressives on the federal bench.

Are the final four sentences of this paragraph merely Green’s recounting of the Left’s narrative? Or do some or all of them reflect her own view? How is the reader to know?

Ditto for Green’s laughable statement in the next paragraph that Democrats “have clung to norms Republicans long ago abandoned.” In any event, shouldn’t the Atlantic’s readers be informed or reminded that it was Democrats who launched the unprecedented campaign of partisan filibusters against George W. Bush’s appellate-court nominees? That it was Senate Democratic leader Harry Reid—thank you, Harry!—who pushed his fellow Democrats to abolish the filibuster for lower-court nominations in November 2013 and thus paved the way for Donald Trump’s successes? (Never mind that Senate Republicans had defeated a grand total of seven cloture motions on President Obama’s nominees, while Reid himself had voted against cloture at least 25 times on 13 different nominees of George W. Bush.) That it was Joe Biden way back in 1992 and Chuck Schumer in 2007 who threatened to prevent an election-year confirmation of a Supreme Court candidate nominated by an opposite-party president? (Green’s later assertions that Republicans “had done away with” the blue-slip process during the Bush 43 presidency and “started filibustering even [Obama’s] district-court nominees” are also very wrong.)

3. Green presents Obama’s first appellate nominee David Hamilton as “a centrist judge from Indiana who was a preacher’s son” and posits that the Obama administration thought that “Republicans wouldn’t be able to find anything objectionable in his record.” This is sheer hooey. Before becoming a district judge, Hamilton was an ACLU activist. As a district judge, he had an extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—and received a strong rebuke from the Seventh Circuit for his obstruction. That help explains why the Obama White House nominated him, and it equally helps explain why many Senate Republicans opposed his nomination.

4. Green lauds former senator Russ Feingold, now head of the American Constitution Society, as a “norms guy, through and through.” Oh, please. Feingold supported the Democrats’ launch of their unprecedented campaign of partisan filibusters, and he voted against cloture some 26 times on 13 appellate nominees. He voted to filibuster Samuel Alito’s nomination to the Supreme Court in 2006, and he called on Senate Democrats to filibuster Neil Gorsuch’s nomination in 2017. Gee, that’s sure some “norms guy.”

Green does have one paragraph late in her piece that quotes conservatives who “have little sympathy for the left’s narrative about Republican intransigence.” But that lone paragraph barely offsets her indulgence of that narrative.

Law & the Courts

This Day in Liberal Judicial Activism—July 26

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(eccolo74/Getty Images)

1983—Barely four months after reiterating that abrogation of the state’s common-law sovereign immunity is a matter for the legislature, not for the courts, the Oklahoma supreme court (in Vanderpool v. State) abolishes Oklahoma’s sovereign immunity. The majority explains that it is imposing “what we perceive to be the more just and equitable view.”

2018—Federal district judge Timothy J. Corrigan rules in Adams v. School Board of St. Johns County that a Florida school board’s policy of assigning bathrooms by sex violates the statutory (Title IX) and constitutional (Equal Protection Clause) rights of a transgender student who identifies as male.

Law & the Courts

This Day in Liberal Judicial Activism–July 25

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1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution.

2018—An Eleventh Circuit panel rules (in Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act, which displaced a higher minimum wage adopted by the city of Birmingham, “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.”

The panel’s reasoning has radical implications for further judicial intrusion on the legislative processes. The panel concludes that the allegation that the state law denied 37% of Birmingham’s black wage earners a higher wage, compared to only 27% of white wage earners, would suffice to show “discriminatory impact.” The panel doesn’t say what disparity would be too small. (It would be surprising if lots of routine legislative actions didn’t have a much larger disparate impact.) Nor does it confront the reality that a higher minimum wage could have a disproportionate impact on job loss and on loss of entry-level job opportunities for black workers.

The panel further cites the 10% disparity as evidence of discriminatory purpose and adds in what it sees as the “rushed, reactionary, and racially polarized nature of the legislative process.” Are we really going to have judges deciding how long a legislative process ought to take? And while the panel finds of special interest the race of the legislators and of the members of the Birmingham city council, it never stops to consider whether they divide along the same lines on economic policy. If these considerations “plausibly imply discriminatory motivations were at play,” then lots of ordinary legislative decisions will be subject to judicial second-guessing.

In January 2019, the full Eleventh Circuit will vacate the panel’s opinion and grant rehearing en banc, and in December 2019 it will rule that the plaintiffs lacked standing to sue.

2018—In Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District, a Ninth Circuit panel rules that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause. The panel evades the Supreme Court’s rulings approving legislative prayer by contending, implausibly, that the school-board meetings are not legislative in nature.

Law & the Courts

This Day in Liberal Judicial Activism—July 24

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The Capitol building at sunrise in Washington, D.C., January 11, 2021 (Erin Scott/Reuters)

2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)

At her hearing, Pillard delivers false and deceptive testimony about her own writings—and, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind: “I am a mother” is part of how she deflects criticism of her equal-protection argument against abstinence-only sex education.

Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda.

2018—“Judge [Stephen] Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death,” asserts Ninth Circuit chief judge Sidney Thomas in an opinion in a case (Altera Corp. v. Commissioner of Internal Revenue) in which the decisive vote on the divided panel is said to have been cast by Reinhardt. (Emphasis added to quote.)

But Reinhardt died nearly four months earlier, probably before the dissenting judge ever circulated her draft dissent. Further, a judge is free to change his position at any time before an opinion issues, so it is difficult to discern what Thomas’s claim that Reinhardt “formally concurred” might actually mean.

In a change of course two weeks later, the Ninth Circuit will withdraw the ruling so that a reconstituted panel can decide how to proceed.

In February 2019, in vacating the judgment in another case in which Reinhardt was said to have posthumously cast the deciding vote (and indeed to have been the author of the majority opinion), the unanimous Supreme Court in Yovino v. Rizo will repudiate chief judge Thomas’s misunderstanding:

“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.”

Law & the Courts

This Day in Liberal Judicial Activism—July 23

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(Pixabay)

1971—In Calvert Cliffs’ Coordinating Committee v. Atomic Energy Comm’n, D.C. Circuit judge J. Skelly Wright enthusiastically welcomes “what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment”:

Several recently enacted statutes attest to the commitment of the government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental Policy Act of 1969. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. [Emphasis added.]

In a 1983 law-review article, then-D.C. Circuit judge Antonin Scalia will identify Calvert Cliffs as having “beg[u]n the judiciary’s long love affair with environmental litigation” and will contrast Wright’s nearly boundless conception of the judicial role with the much more modest understanding set forth in Marbury v. Madison. Further, as Scalia observes, Wright doesn’t even bother to explain what the Calvert Cliffs’ Coordinating Committee is and how it has standing to challenge the agency’s action:

From reading the opinion, one is unable to discern whether the Calvert Cliffs’ Coordinating Committee, which brought construction of the Calvert Cliffs nuclear generating plant to a halt, was composed of environmentalists, or owners of land adjacent to the proposed plant, or competing coal-generating power companies, or was even, perish the thought, a front for the Army Corps of Engineers, which is reputed to prefer dams to atoms.