Law & the Courts

This Day in Liberal Judicial Activism—June 7

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The Supreme Court in Washington, D.C., January 21, 2020. (Will Dunham/Reuters)

1965Griswold v. Connecticut arose when the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced.

In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern.

Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt v. Baird (see This Day for March 22, 1972) would confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.”

Law & the Courts

Judicial-Nominations Update

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After returning from recess last week, the Senate resumed its work on judicial nominees. It confirmed two more district court judges this week, bringing the total number of Trump-nominated Article III judges to 198, and reported Justin Walker’s nomination to the D.C. Circuit to the Senate.

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

Current and known future vacancies: 84

Courts of Appeals: 2

District/Specialty Courts*: 82

Pending nominees for current and known future vacancies: 48

Courts of Appeals: 2

District/Specialty Courts*: 46

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Cory Wilson 5/4/20 32 5/20/20

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Justin Walker 5/4/20 32 6/4/20

Nominees Awaiting Floor Votes: 17

Courts of Appeals: 1

District/Specialty Courts*: 16

Days Pending

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

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

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 98

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

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 151

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

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

Supreme Court: 2

Courts of Appeals: 51

District/International Trade Courts: 145

Law & the Courts

This Day in Liberal Judicial Activism—June 5

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Sirhan Sirhan at a parole hearing at Corcoran State Prison in California in 1997 (Pool/via Reuters)

1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime will be voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it mis-imagines contemporary standards to be. (See This Day for February 18, 1972.)

Law & the Courts

Sharonell Fulton, et al. v. City of Philadelphia Is Going to the Supreme Court

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The Supreme Court Building in Washington, D.C., March 18, 2020 (Tom Brenner/Reuters)

Does the Constitution safeguard religious organizations with a traditional view of marriage that participate in our nation’s social safety-net programs? Can state, local, and federal officials weaponize seemingly neutral anti-discrimination laws and policies to banish faith-based social-service programs that don’t toe some ideological line from the public square? The Supreme Court will take up the issue next term in a case brought by two Philadelphia foster moms and Catholic Social Services of the Archdiocese of Philadelphia. Sharonell Fulton, et al. v. City of Philadelphia is one of the most important religious freedom cases to come before the Supreme Court in a decade.

In 2018, city officials in Philadelphia insisted that the Catholic private foster care agency provide written endorsements of same-sex married couples as foster parents. This is something the archdiocesan agency could not do since it is inconsistent with Catholic teaching on marriage as between a man and a woman. In what can only be construed as ideological retaliation, the city stopped referring kids needing foster homes to the agency and won’t renew the agency’s contract. The archdiocese went to court, and this past Wednesday, former foster children and foster/adoptive parents filed an amicus brief with the Supreme Court. This brief attests to the dignified placement and support Catholic-run agencies provide to foster children and foster and adoptive parents. They urge the high court to protect the agency from the city’s untenable demands.

There are three important considerations in the Fulton case: clarity, tolerance, and kids.

ClarityBecket Law, the religious freedom lawyers representing the foster moms and their agency, urge the Court to craft a new rule for evaluating these kinds of disputes that better protects religious freedom. Specifically, they ask the court to revisit a case from 1990 — Employment Division v. Smith. Smith held that religious objectors are not constitutionally entitled to exemptions from neutral, generally applicable laws. In practice, however, Smith has proven unworkable. The Fulton case is a perfect example. There is plenty of evidence that the city targeted the Catholic agency and that the city’s anti-discrimination policy was honeycombed with exceptions. The lower court in Fulton, however, ignored this evidence. It held that the Catholic agency would have to show that the city treated it worse than it would have treated another organization that did not work with same-sex couples as foster parents. The Founders believed that First Amendment freedoms like the free exercise right deserve the upmost protection, but Smith has emboldened governments to restrict religious freedom using a pretext of neutrality. Fulton could clarify that the government can’t use seemingly neutral anti-discrimination laws to shut religious believers out of the business of caring for the needy in their midst.

Tolerance. Philadelphia officials acted with unabashed intolerance here. All in the name of tolerance, of course. They disparaged the Catholic agency’s support of traditional marriage. Follow “the teaching of Pope Francis,” the head of Philadelphia’s Department of Human Services lectured the Catholic agency’s head — as if the pope had changed Church teaching defining marriage. “Times have changed,” she insisted. “It is not 100 years ago.” The city council, for its part, passed a resolution denouncing “discrimination that occurs under the guise of religious freedom.” The mayor directed the city’s commission on human relations to investigate the agency, even though no citizen had ever complained. The Catholic agency, in response, proposed referring any same-sex married couple interested in fostering (none had ever approached the agency) to one of the 29 other agencies working with the city. Referrals among agencies happen all the time for many different reasons, the agency noted. But the city’s intolerance leaves no room to accommodate dissenting beliefs.

Kids. A staggering number of kids in America lack safe and loving homes. Neglect or abuse linked to the health of parents and the economic and psychological strains caused by the coronavirus pandemic will only increase the number of children in need of fostering. Skilled and nurturing foster parents can make the difference between a child struggling or flourishing. The Archdiocese of Philadelphia has cared for orphaned, abused, and neglected children for more than two centuries. Over 50 years it has partnered with the city as a foster care agency. The Catholic agency accepts children for foster care placement regardless of race, sex, creed, disability, or sexual orientation. In their amicus brief, the former foster children and foster/adoptive parents who worked with Catholic agencies in Philadelphia and beyond highlight how these agencies succeed in putting the focus on the needs of the child, not just the desires of the prospective parents. Kids in need of foster and adoptive families deserve caring, competent, and experienced agencies, not ideological conformists.

Severing ties with Catholic-run foster care and adoption programs under the guise of enforcing “neutral” anti-discrimination laws is tantamount to hanging a “Catholics Need Not Apply” sign outside every state and local health and human services department. This is odious to the Constitution’s guarantees of free speech and the free exercise of religion. Such practice cannot continue, especially when the futures of at-risk kids are at stake.

The Supreme Court has the chance to set things right again in Philadelphia this coming fall. For the sake of religious freedom and kids in need, pray that the justices do the right thing in Fulton v. City of Philadelphia.

Law & the Courts

This Day in Liberal Judicial Activism—June 3

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U.S. Supreme Court building in Washington, D.C., November 2011 (Architect of the Capitol)

1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim.

In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.”

Law & the Courts

Two New York Lawyers Choose Violence over Oath to Defend the Constitution

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People loot Soho businesses after the protests in New York, June 1, 2020. (Eduardo Munoz/Reuters)

George Floyd was deprived of the ultimate civil right — the right to live — by a lawless police officer. The State of Minnesota has charged that officer with third-degree murder and second-degree manslaughter. If convicted, former police officer Derek Chauvin could spend up to 35 years in state prison. In the first instance, we see the law’s limits — an officer sworn to uphold it flagrantly disregarded it. In the second, we see the meaningful application of it — a man justly deserving of its strong hand has been charged and held to face judgment.

As a civil-rights lawyer, I’m sickened by Mr. Floyd’s unlawful execution and desire swift justice for him and his family. As a criminal-defense lawyer, I want Derek Chauvin prosecuted with all of the guarantees of due process that our Constitution grants criminal defendants. That means he will not stand trial any time soon. As the prosecution builds its case, it must disclose relevant evidence to Chauvin’s lawyers so that they can mount a constitutionally effective defense. This includes challenging the state’s evidence for irregularities, arguing pretrial points of law, and no doubt moving for a change of venue. As the old proverb holds, “the wheels of justice turn slowly, but grind exceedingly fine.” Absent a plea agreement, I’m confident Minnesota citizens will send Chauvin where he belongs.

Not everyone is content to let the law run its course. Peaceful protesting has given way to rioting and looting. A compliant media films the plunder in real time but finds facile ways to excuse manifest criminality. CNN’s resident monologist, Don Lemon, has been a particularly smug defender of the violence, fashionably (and preposterously) comparing the vandals to the Sons of Liberty’s patriotic actions during the Boston Tea Party. These assertions, in effect, rationalize the rampage and thereby contribute to further violent disorder.

Nothing done during the riots, in all of the American cities smoldering right now, has been as outrageous or terroristic as the alleged actions of two New York lawyers, just days ago. Colinford Mattis, a laid-off corporate attorney admitted to the bar two years ago, and Urooj Rahman, a jobless attorney admitted to the bar last year, have been accused by the United States Department of Justice of acting in concert to torch an NYPD vehicle in Brooklyn. Captured on surveillance video, Rahman threw a Molotov cocktail at the police vehicle and then took off in the getaway car driven by Mattis. NYPD officers gave chase, apprehended the lawyers, and recovered from their vehicle “several precursor items used to build Molotov cocktails, including a lighter, a bottle filled with toilet paper and a liquid suspected to be gasoline.”

Upon admission to the New York bar, a newly minted attorney swears that “I will support the Constitution of the United States, and the Constitution of the State of New York, and that I will faithfully discharge the duties of the office of attorney and counselor-at-law.” New York’s appellate court has explained that the attorney’s oath of office contains “a pledge of such gravity and importance that the Legislature has seen fit to require that it be administered orally in a public court . . . [and] its obligations endure for the life of the attorney’s career at the bar.”

The gravity of the oath reflects the lawyer’s station in American life. Alexis de Tocqueville wrote that “lawyers are called on to play the primary role in the political society,” and they create “a form of public responsibility and accountability that would help preserve the blessings of democracy without allowing its untrammeled vices.” “When the American people is intoxicated by passion and carried away by the impetuosity of its ideas,” he reasoned, “it is checked and stopped by the almost invisible influence of its legal counselors.”

What does it say, then, that not one but two lawyers engaged in violence of such evil and potentially deadly dimensions that they superseded the intoxicating passions of the riotous mob? Rather than stabilize republican government during its most contentious moment, they discarded their oath and any lawyerly instinct for self-preservation to engage in domestic rebellion. They have, it seems, pledged their allegiance to something greater — more transcendent — than our Constitution.

At present, their actions can only be plausibly explained as an act of religious conviction. Linguist John McWhorter has examined the pious underpinnings of “a profoundly religious movement” called “third-wave antiracism.” Its scripture teaches that “whites are permanently stained by their white privilege” and can only receive absolution “by eternally attesting to it.” The church of antiracism predicts “Judgment Day” will come when “America comes to terms with race,” and public demonstrations and announcements of progressive orthodoxy on race — or virtue signaling — “channel the impulse that might lead a Christian to an aggressive display of her faith in Jesus.” In this church, Ta-Nehisi Coates is the supreme pontiff, the 1619 Project the catechism.

Taken together — the genuine outrage at the killing of George Floyd, the continuing complicated relationship between police and minority communities, and a woke zealotry that instills an abiding belief that America is a fundamentally corrupt, inherently hypocritically, and irredeemably racist experiment that needs to be dismantled and reconstituted consistent with the tenants of antiracism — the ideals that Mattis and Rahman swore to in their attorney oath of office never had a chance.

America’s greatest lawyer — and president — Abraham Lincoln, wrote in his July 1, 1850, “Notes for a Law Lecture” that, “As a peacemaker the lawyer has a superior opportunity of being a good man,” but a “worse man can scarcely be found than one who . . . stirs up strife.”  “A moral tone,” he believed, “ought to be infused into the profession which should drive such men out of it.” It is not a stretch to hold that an uncritical and zealous allegiance to third-wave antiracism and woke ideology serves, in effect, as a repudiation of the oath to uphold and defend the colorblind Constitution. Ultimately, Mattis’s and Rahman’s flirtation with “strife” and petty insurgency will result in the loss of their law licenses (and federal prison). Having repressed a much greater domestic insurrection, the Great Emancipator would approve.

Our present crisis began with an appalling act of lawlessness perpetrated by a man who swore to uphold the Constitution. The response in major cities has been more lawlessness. But only the application of law will bring justice to the family of George Floyd and restore order to the cities. You don’t need a law degree to know that.

Law & the Courts

The Court Deals a Blow to a Pentecostal Church Just before Pentecost Sunday

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The Supreme Court in Washington, D.C., January 21, 2020. (Will Dunham/Reuters)

From the beginning of California’s COVID-19 shutdown in March, religious institutions were excluded from the state’s definition of “essential businesses,” including the South Bay United Pentecostal Church in Chula Vista, Calif. The church spent most of May in court fighting Governor Gavin Newsom’s imposition of more stringent restrictions on religious gatherings than comparably risky secular activities.

As California shifted to a four-stage reopening plan, its discrimination against houses of worship grew as their reopening was pushed to “Stage 3,” behind manufacturing, warehousing, offices, schools, and shopping malls.  Californians were allowed to gather by the thousands ten hours a day, seven days a week, to visit America’s high altar to consumerism, but could not gather for an hour a week to worship God.

When the Pentecostal church’s challenge reached the Ninth Circuit, a 2–1 panel affirmed the district court’s refusal to grant the church a temporary restraining order, over the blistering dissent of Trump appointee Daniel Collins. The church then made an emergency request to the Supreme Court via Justice Kagan, the circuit justice responsible for the Ninth Circuit. Last Monday, Newsom gave a bit by allowing houses of worship to gather at 25 percent of building capacity or 100 attendees, whichever is lower. That restriction does not apply to the favored businesses.

The church did not ask the Court for any special privilege. It was willing to comply with the same social distancing and hygiene protocols as the favored entities. It simply asked not to be subjected to more onerous restrictions than they were. How is wearing a mask and keeping six feet apart riskier when done in a church auditorium vs. a school auditorium? Answer: It isn’t.

This should have been an easy call. But soon before midnight on the Friday before Pentecost Sunday, the Court denied injunctive relief by a 5–4 vote. Chief Justice Roberts joined the liberal bloc, opining in a concurrence that “The precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” Justices Thomas, Alito, Gorsuch, and Kavanaugh voted to protect the church.

As the chief justice saw it, “comparable secular gatherings” including concerts and theatrical performances faced similar (or greater) restrictions while “only dissimilar activities” where “people neither congregate in large groups nor remain in close proximity for extended periods” had fewer burdens. He argued that elected officials have “especially broad” latitude to “act in areas fraught with medical and scientific uncertainties.”

Chief Justice Roberts blatantly mischaracterizes the issue. The test of discrimination isn’t whether any comparable secular activity is treated as badly as religious activity, it is whether any comparable secular activity is treated better than religious activity. In the race context, it is obviously wrong to say blacks cannot claim discrimination if Hispanics are treated just as badly, because the proper question is whether any race is treated better than African Americans. If Roberts thought this was a close call, he should have voted to grant the temporary relief to avoid irreparable harm in turning back so many Pentecostal churchgoers on Pentecost Sunday.

Justice Kavanaugh wrote a dissent, joined by Thomas and Gorsuch, pointing out that in fact “comparable secular businesses are not subject to a 25% occupancy cap, including factories, offices, supermarkets, restaurants, retail stores, pharmacies, shopping malls, pet grooming shops, bookstores, florists, hair salons, and cannabis dispensaries.” The fact that some secular activities like movie theaters are restricted as much or more than churches is entirely beside the point.

Of course, several of the favored categories can include large numbers of people and longer stays than a church service. The risks inherent in those settings were addressed by safety protocols, which suddenly cease to be sufficient when the context shifts to churches. “The State . . . has substantial room to draw lines, especially in an emergency,” Kavanaugh noted. “But as relevant here, the Constitution imposes one key restriction on that line-drawing: The State may not discriminate against religion.” California’s occupancy cap “indisputably” does that, in violation of the First Amendment.

For good measure, Kavanaugh’s incisive opinion quoted the Sixth Circuit’s recent observation in a similar case, improbably named Roberts v. Neace: “The State cannot ‘assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings.’”

Sadly, it would appear it can when the state is California.

Law & the Courts

The Chief’s Curious Opinion on Church-Occupancy Limits

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Last Friday evening, by a vote of 5 to 4, the Supreme Court denied South Bay United Pentecostal Church’s application for an injunction against state and county occupancy limits on religious-worship services. As is customary on emergency applications, the majority (the liberal justices and the Chief Justice) did not issue an opinion explaining its grounds. The Chief Justice, however, issued a two-page opinion concurring in the denial. He evidently did so in order to respond to Justice Kavanaugh’s three-page dissent (which Justices Thomas and Gorsuch joined).

Some observations:

1. The complexion of the case had changed significantly since the Ninth Circuit’s divided panel ruling a week earlier. When the Ninth Circuit ruled, state and county orders barred churches from holding any in-person religious services. By last Friday, a new set of orders allowed churches to hold in-person religious services so long as they limited attendance to 25% of building capacity or a maximum of 100 people (whichever is lower) and implemented social-distancing measures.

According to the church, its “sanctuary seats 600 persons, and each service normally brings in between 200 and 300 congregants.” It argued that the new set of orders caused it harm because attendance at each of its services would be limited to 100 people. The state countered that the social-distancing measures that the church did not object to would likely keep occupancy below the usual levels; that the church was free to increase the number of its services; and that the ongoing pandemic might also have attendance lower than normal.

2. Given the changing state of affairs amidst the pandemic and the uncertainty over whether the orders would have any real impact on the church, I can understand why a justice would be disinclined to intervene to enjoin the orders. The Chief Justice relies on these factors in explaining his position: it “is especially true” that judges should be wary of intervening when a party “seeks emergency relief in an interlocutory posture, while local officials are actively shaping their response to changing facts on the ground.” Had he confined his opinion to these considerations, I think that it would have been stronger.

Instead, the Chief, in what strikes me as a significant departure from the minimalism that he often encourages (“if it is not necessary to decide more to a case, then in my view it is necessary not to decide more to a case”), makes three expansive declarations.

a. The Chief states that the restrictions that the orders place on churches are similar to, or less severe than, the restrictions that “apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time.” The orders, he maintains, exempt or treat more leniently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”

The Chief is arguing, in other words, that the orders are neutral and generally applicable and thus do not present a Free Exercise problem. But he doesn’t address the fact that factories and offices—where people often are in large groups in close proximity for extended periods—aren’t subject to the occupancy caps that churches face.

The question of what it means for a law or order to be neutral and generally applicable—in particular, which persons or activities are to be considered part of the relevant group—is sometimes a difficult one. The Chief’s apparent intuition that factories and offices aren’t relevant to the inquiry in this case might be right. But he seems to have decided the question without in fact addressing it, and I wonder whether it would have been better if he had simply said nothing on the matter.

b. In the fourth (and longest) paragraph of his opinion, the Chief sets forth his view that the “precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement.” (As Josh Blackman points out, he even includes a very odd citation to Justice Blackmun’s opinion in Garcia v. San Antonio Metropolitan Transit Authority.) But there is nothing “precise” about that very broad “question,” and this case, which involves a specific claim that orders violate Free Exercise rights, is a curious occasion to invoke the broad authority over health and safety that the Constitution “principally entrusts” to state officials. I don’t see what value this paragraph adds to the Chief’s analysis.

c. The Chief frames his overall inquiry by maintaining that the burden that the church faces in obtaining “judicial intervention that has been withheld by lower courts” is especially high and that such relief should be granted only when “the legal rights at issue are indisputably clear” and “only in the most critical and exigent circumstances.” But is this really a standard that the Court, or the Chief himself, has consistently applied?

I’m unclear on how the distinction that the Chief draws between requests for injunction and requests for stays makes sense: the stay pending certiorari, for example, that the Chief and the four liberal justices granted in June Medical Services v. Gee prevented the Louisiana abortion law from taking effect and thus involved judicial intervention that had been withheld by the Fifth Circuit. (Yes, the district court had barred the law from taking effect, but surely the Chief isn’t suggesting that his vote on the emergency application in this case might have been different if the district court had granted the church relief and the Ninth Circuit had reversed the district court, is he?)

Law & the Courts

This Day in Liberal Judicial Activism—June 1

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Judge Martha Craig Daughtrey

1992—In Davis v. Davis, the Tennessee supreme court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail.…” Daughtrey extrapolates 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. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe.

In 1993, President Clinton will appoint Daughtrey to the Sixth Circuit.

Law & the Courts

This Day in Liberal Judicial Activism—May 31

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(Kuzma/Dreamstime)

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

2017—A sharply divided limited en banc panel of the Ninth Circuit rules (in U.S. v. Sanchez-Gomez) in favor of four criminal defendants who challenged a court’s policy of routinely having pretrial detainees shackled for pretrial proceedings. In his six-judge majority opinion, Judge Alex Kozinski concludes that the challenges are not moot even though the defendants’ cases have ended because the defendants were seeking “class-like relief” in a “functional class action.” The majority opinion further holds that the court’s policy violates the Fifth Amendment.

In her five-judge dissent, Judge Sandra Ikuta complains that majority “ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution.”

Less than a year later, a unanimous Supreme Court will agree with Ikuta that the case should have been dismissed on grounds of mootness. Even the defendants who brought the challenge decline to defend the Ninth Circuit’s reasoning.

Law & the Courts

This Day in Liberal Judicial Activism—May 30

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2017—In Whitaker v. Kenosha Unified School District, a Seventh Circuit panel affirms the grant of a preliminary injunction that requires a school district to allow a girl who identifies as male to use the boys’ restrooms at her high school. The panel holds that Title IX and the Equal Protection Clause of the Constitution both prohibit discrimination against an individual based on that individual’s failure to conform to sex stereotypes. But the panel somehow completely misses the larger point that it is the transgender ideology that is built on sex stereotypes.

As a result, the panel has things exactly backwards. It is sex stereotyping to say that a girl who looks like a boy should use the boys’ restroom. But that is exactly the relief that the student seeks and that the panel has ordered. It is patently not sex stereotyping to say that a girl who behaves, walks, talks, and dresses in a manner that doesn’t conform to sex stereotypes should nonetheless be treated as a girl and should use the girls’ restroom.

Law & the Courts

This Day in Liberal Judicial Activism—May 29

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Supreme Court Associate Justice Anthony Kennedy (Joshua Roberts/Reuters)

1992—According to Jan Crawford’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.” The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge. One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role. (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk? Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf. An excerpt from Justice Scalia’s classic dissent:

“If one assumes … that the PGA TOUR has some legal obligation to play classic, Platonic golf … then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

Law & the Courts

Judicial-Nominations Update

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As states around the country begin to reopen, the Senate remains busy processing judicial nominations. Last Wednesday, the Senate Judiciary Committee held a hearing for Fifth Circuit nominee Cory Wilson. In addition, the Senate confirmed three district court nominees last week.

This week, the Senate is in recess, but next week, it is expected to confirm at least two additional district court judges. If both are confirmed, President Trump will be only two Article III judicial confirmations away from 200 since his inauguration.

Below is a full update on the status of the president’s judicial nominations. Notice that the number of judges who were confirmed after going through the Judiciary Committee has now exceeded the 200 mark. That number includes five federal claims judges, which are authorized by Article I of the Constitution, and one Article IV territorial district judge. Article III judges are life-tenured, and due to their significance, we have added that category — a number that now stands at 196 since inauguration day — to the others we report below.

Current and known future vacancies: 86

Courts of Appeals: 2

District/Specialty Courts*: 84

Pending nominees for current and known future vacancies: 49

Courts of Appeals: 2

District/Specialty Courts*: 47

Court of Appeals Nominees Awaiting Senate Judiciary Committee Hearings

Nominee (Circuit) Original Nomination

Date

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

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Judiciary Committee Hearing Date
Justin Walker 5/4/20 23 5/6/20
Cory Wilson 5/4/20 23 5/20/20

Court of Appeals Nominees Awaiting Senate Floor Votes 

Nominee (Circuit) Nomination Date Days Since Original Nomination Date Reported to Senate Floor
None

Nominees Awaiting Floor Votes: 18

Courts of Appeals: 0

District/Specialty Courts*: 18

Days Pending

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

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 116th Congress: 117

Supreme Court: 0

Courts of Appeals: 21

District/Specialty Courts*: 96

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day202

Supreme Court: 2

Courts of Appeals: 51

District/Specialty Courts*: 149

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

Art. III Nominees Confirmed by the Senate since Inauguration Day: 196

Supreme Court: 2

Courts of Appeals: 51

District/International Trade Courts: 143

Law & the Courts

This Day in Liberal Judicial Activism—May 28

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Supreme Court Justice Antonin Scalia testifies before the House Judiciary Committee in 2010. (Kevin Lamarque/Reuters)

1963—Retired justice Felix Frankfurter, having witnessed the appointment of his replacement, Arthur Goldberg, create a majority bloc of liberal activists on the Supreme Court, writes to Justice Harlan to lament “the atmosphere of disregard for law and to a large extent of the legal profession that now dominates the present Court and the Court on which I sat.” (Source: Seth Stern & Stephen Wermiel, Justice Brennan.) Decades later, the situation will be transformed—but, alas, for the worse—as “a large extent of the legal profession,” having been indoctrinated by the disciples of the Warren Court, will display a similar “disregard for law.”

2013—In two 5-4 rulings (with Justice Kennedy joining the four liberals), the Supreme Court creates more confusion over federal habeas procedures.

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, creates an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996. Never mind, as Justice Scalia points out in dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.”

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadens a purportedly “narrow exception” that it had created just the previous year. As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in that earlier ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.”

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his dissent in the earlier case that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year.

The broader lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings, as those limitations will disappear at the first convenient opportunity.

Law & the Courts

Protecting Our Healers: Courts Must Allow the Federal Government to Enforce Federal Law

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(Pixabay)

People who enter the health-care profession and become doctors and nurses usually do so out of a heart-felt motivation to bring healing to sick and hurting people. Many take an oath to care for their patients and to “do no harm.” Some also are motivated by personal religious faith and profess a calling to care for the poorest and most vulnerable among us.

For doctors and nurses who believe in the sanctity of life, deliberately destroying a developing human life by performing an abortion is an unthinkable and unconscionable act — an act that runs directly counter to the very beliefs that called them into healthcare. There are some medical professionals who personally support pro-choice policies but who also do not wish to participate in an abortion. And there are many patients who, while they may themselves be politically pro-choice, are comforted to know they are being cared for by a pro-life physician.

Since our earliest days, America has been a place of shelter for people with moral or religious objections. Our nation has protected the conscientious objector in a manner unprecedented by any other historical government. For example, we have protected Quakers from bearing arms and prison officials from administering lethal injections. Unfortunately, some abortion advocates would rather discard that heritage and force doctors and nurses to either perform abortions or exit the medical profession entirely. Such a position is untenable. It is un-American and it is harmful for the patients these compassionate doctors and nurses are serving who would be left without their care.

That is why, as Members of Congress, we crafted laws to protect them. The Coats-Snowe Amendment was passed to ensure that doctors, nurses, and medical students would not be forced to provide or participate in abortions. The Weldon Amendment was passed to prohibit recipients of federal funding from discriminating against a medical professional that does not provide, pay for, cover, or refer for abortions.

It is incredible that such laws are necessary, but abortion advocates were making it increasingly difficult for pro-life providers to continue serving in the medical field. For example, the Coats-Snowe Amendment was passed after a national accrediting agency made training in elective abortion procedures mandatory for medical schools.

The provisions we drafted, along with dozens of others designed to protect conscience in the medical field, are now enshrined in federal law. Federal statutes protecting medical conscience have been on the books for decades. Many passed with bipartisan support. Why? Because while we may take different views on questions like physician-assisted suicide and abortion, it should be easy to agree that forcing someone who has dedicated her career to saving lives to perform a procedure that is, in his or her sincere professional judgment, lethal to a human life is wrong.

In order for these protections to be effective, they must be enforceable. Yet federal courts (including the Second Circuit, which in 2010 heard a case from a New York City nurse who was coerced into participating in an abortion) have held that doctors and nurses cannot invoke these laws on their own. Instead, courts have held that the federal government alone can enforce them.

In response the U.S. Department of Health and Human Services recently issued a regulation directing the Office of Civil Rights at HHS to enforce conscience rights within the parameters of existing federal law. We were both very pleased with this new regulation, and we both feel that this more accurately reflects the intent of Congress. Unfortunately, a federal district court invalidated the regulation, misinterpreting congressional intent and depriving the medical community of these important protections.

We submitted an amicus brief to the Second Circuit detailing the legislative history behind the provisions we led to passage. These laws provide broad protections for providers with personal objections to performing or assisting in the performance of abortions. Our brief details why the HHS regulation enforcing these provisions is authorized by the text and intent of the legislation we pioneered.

The Second Circuit now has an opportunity to prove it meant what it said when it ruled that HHS is responsible for enforcing these conscience protections. In New York v. HHS, the court must ensure that the government can enforce these conscience protections as they were intended and as they are written.

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