Law & the Courts

This Day in Liberal Judicial Activism—July 8

1994Some messes can take years to clean up. 

In 1990, after months trying to get Henry Quade to respond to complaints about sewage and foul odors seeping from his house, state health department officials obtained a forcible-entry warrant. When they arrived at Quade’s house, Quade threatened “to get my gun and use it.” A team of police officers was called to the scene. When the officers entered the house, Quade fired a handgun at them. The officers shot back, killing Quade. 

In a divided panel ruling in Alexander v. City of San Francisco, the Ninth Circuit, in a majority opinion by Judge Betty Fletcher, rules that the officers can be held liable for damages for excessive force “in creating the situation which caused Quade to take the actions he did.” In dissent, Judge Stephen Trott laments that the ruling “wreaks havoc on the Fourth Amendment.” He further observes, “If I were a police officer, I might reconsider my calling with this kind of misunderstanding of my job and inconsistent messages from the court. 

Over the ensuing decades, the Ninth Circuit will apply this “provocation rule” in case after case even as other courts of appeals cast doubt on it. Finally, in 2017, a unanimous Supreme Court (in County of Los Angeles v. Mendez) will reject the Ninth Circuit’s provocation rule as “incompatible with our excessive force jurisprudence.” 

Law & the Courts

This Day in Liberal Judicial Activism—July 7

2014President Jimmy Carter’s sorry judicial legacy lives on. Thirty-five years after his appointment by Carter, 90-year-old Ninth Circuit judge Harry Pregerson—still in regular (rather than senior) status—authors a panel opinion that preliminarily enjoins the state of Arizona from implementing a policy that prevents a class of illegal aliens from obtaining driver’s licenses. The liberal diehard holds (among other things) that the policy likely violates the Equal Protection Clause. 

The state policy concerns those illegal aliens subject to the Obama administration’s non-enforcement policy known as Deferred Action for Childhood Arrivals (DACA). On the state’s argument that issuing driver’s licenses to DACA recipients might allow them to access governmental benefits to which they are not entitled, Pregerson recites testimony from state officials that (in his summary) “they had no basis whatsoever for believing that a driver’s license alone could be used to establish eligibility for such benefits.” But the relevant question isn’t whether a “driver’s license alone” would suffice, but rather whether a driver’s license might facilitate the process. 

Law & the Courts

Census Pretext Redux

At a naturalization ceremony in Washington, D.C., in 2013. (Larry Downing/Reuters)

In an op-ed in the July 5 Wall Street Journal, David B. Rivkin, Jr. and Gilson B. Gray argue that the Trump administration should rely upon what they see as an overlooked mandate of the Constitution. Here is how Rivkin and Gray put it: “The Constitution itself requires the collection of citizenship information.” Where, you ask? They continue:

Section 2 of the 14th Amendment provides that if a state denies the franchise to anyone eligible to vote, its allotment of House seats shall be “reduced in the proportion which the number of such . . . citizens shall bear to the whole number of . . . citizens . . . in such state.” This language is absolute and mandatory. Compliance is impossible without counting how many citizens live in each state.

The ellipses employed by the authors are too convenient.  Here is the full text of Section 2 of the Fourteenth Amendment (with my emphasis):

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

A little later, Rivkin and Gray characterize the amendment’s requirement this way: “The amendment forbids state interference with the rights of all eligible voters (then limited to males over 21).” While the concluding parenthetical concession is true, the foregoing sentence is false.

Section 2 requires that a state’s representation in the House—and thus also its votes in the electoral college—be reduced according to the proportion of its male citizens age 21 or higher, not disqualified from voting for rebellion or criminal history, who are prevented from voting. Let us suppose, for instance, that Louisiana, whose population today is about one-third African-American, simply denied all those citizens the right to vote.  If the black male citizens over 21 wrongly denied the suffrage amounted to one-third of all male citizens over 21 in Louisiana, the state would lose two of its six seats in the House of Representatives (and two of its eight electoral votes).

Note that the amendment does not actually protect anyone’s voting rights by any direct enforcement action of the federal government; it simply imposes a cost on states that deny the suffrage—and again, only if they deny it to male citizens 21 or more years of age. The population of voters today, of course, includes all adult citizens of both sexes who are at least 18. But it is the worst kind of “keeping the Constitution in tune with the times” nonsense to say that today “male citizens over 21” actually means “all eligible voters,” as Rivkin and Gray blithely claim.

In our hypothetical Louisiana example above, the state would lose two seats in the House if Section 2 were enforced. But it never has been, and one could hardly call the provision self-executing, in the way that provisions like due process and equal protection of the laws are self-executing—that is, at least in some respects by judicial enforcement of their terms against offending states. Under its powers granted by Section 5 of the amendment “to enforce, by appropriate legislation, the provisions” of the previous sections, Congress would have to legislate some scheme by which an assessment has been made of whether male citizens over 21 have been improperly prevented from voting, followed by a correctly proportioned reduction of an offending state’s representation in the House—with the concomitant redistricting that this in turn would require.

It’s really no wonder that Section 2 of the Fourteenth Amendment has never been enforced. It would be both complicated and unpleasant to attempt it. No doubt realizing that this roundabout mechanism for securing the suffrage of the former slaves of the South was ineffectual, Congress proposed and the states ratified the Fifteenth Amendment just two years later. As historian Paul Moreno notes, “The Fifteenth Amendment made Section 2 [of the Fourteenth] superfluous.” And although even this last Reconstruction amendment awaited real enforcement for 95 years before the Voting Rights Act was enacted, at least the Fifteenth had the textual advantage of making no reference to sex or age, simply forbidding denial of the suffrage on the basis of “race, color, or previous condition of servitude.” And so unlike Section 2 of the Fourteenth Amendment, the Fifteenth was not doomed to be an anachronism.

Can the president, as Rivkin and Gray suggest, simply issue an executive order adding a citizenship question to the census in order to “comply with the requirements of Section 2”? Not, I should think, if the Congress has not asked for the pertinent information on male citizens over 21 denied the vote, in order to set in motion a reduction of offending states’ congressional representation. And no enforcement legislation exists requiring any such information.

A little over a week ago, Chief Justice Roberts rejected the Trump administration’s stated reason for the citizenship question as pretextual. Whether that decision was right or wrong, the Rivkin-Gray gambit looks like a dubious new pretext for adding a citizenship question to the census.







Law & the Courts

This Day in Liberal Judicial Activism—July 6


1989—In solo dissent in Hamblen v. Dugger, Florida justice Rosemary Barkett opines that a capital defendant is not permitted to waive his right to present evidence of mitigating circumstances. Such waiver, she contends, somehow makes it impossible for the sentencing court to carry out its statutory role of weighing aggravating and mitigating circumstances when deciding whether to impose a death sentence.

But our adversary system routinely depends on the parties to choose what evidence to present. When no evidence of mitigating circumstances is offered, it simply follows that the mitigating circumstances carry zero weight.

2008—Nearly two decades after President Reagan left office, Washington Post columnist David S. Broder evidently still doesn’t understand Reagan or judicial conservatism. Or maybe he’s just trying to pander to Justice Kennedy. Recounting Kennedy’s status as Reagan’s third pick to fill the seat of Justice Lewis Powell, Broder claims that the pick “turned out to be successful beyond Reagan’s wildest dreams” and that Kennedy has “fulfill[ed] the expectations that Reagan and others had for him from the start.” Yeah, right.

Law & the Courts

This Day in Liberal Judicial Activism—July 5

The CIA Library (via Flickr)

1989—Displaying its usual disregard for the interests of local communities in maintaining minimal standards of behavior, the American Civil Liberties Union protests the written policies developed by the Morristown, New Jersey, public library to deal with a homeless man who camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. (See This Day for February 14, 1992, for the rest of the story.)

Law & the Courts

This Day in Liberal Judicial Activism—July 4


1776—The Declaration of Independence is a stirring statement of America’s creed, but is it also a sexist and xenophobic document?

Defending the Supreme Court’s increasing use of foreign law in support of its rulings on the meaning of the Constitution, Justice Ruth Bader Ginsburg titles a 2005 speech “‘A decent Respect to the Opinions of [Human]kind’: the Value of a Comparative Perspective in Constitutional Adjudication.” Obtusely appealing to the Declaration of Independence to justify the Supreme Court’s dependence on foreign law, Ginsburg cannot resist the urge to purge the gender bias she perceives in the Framers’ observation that “a decent Respect to the Opinions of Mankind” requires a declaration of the “causes which impel them to the Separation.” Nor, apparently, does she notice that one of those stated causes was that King George III “has combined with others to subject us to a Jurisdiction foreign to our Constitution.” (See here for more on Ginsburg’s embarrassingly shoddy speech.)

2010—Days after Supreme Court nominee Elena Kagan can’t bring herself to express her personal agreement with the “self-evident” truth set forth in the Declaration of Independence that all human beings “are endowed by their Creator with certain unalienable Rights,” the same Senate Democrats who ardently push for her confirmation head outside the Beltway to profess homage to the Declaration in Fourth of July celebrations with their constituents.

Law & the Courts

Three Years after the Supreme Court’s Last Abortion Case

(Brendan McDermid/Reuters)

For months, the Missouri Department of Health has been investigating unsafe practices at Planned Parenthood’s abortion clinic in St. Louis and at the pathology lab that contracts with Planned Parenthood. What’s been characterized as a “licensing dispute” involves an inquiry into incomplete abortions that may threaten women’s lives. The health department’s attempt to thoroughly investigate these problems was blocked, at least temporarily, by a state court. There’s little that public-health officials or legislators in the states can do about such conditions without risking expensive litigation.   

That was one implication of the Supreme Court’s decision in Whole Woman’s Health v. Hellerstedt, decided in June 2016. The Court eliminated several health and safety regulations for Texas abortion clinics, including the state’s requirement that abortion doctors be able to admit women who suffer complications after abortions to a nearby hospital and quickly transfer the patient’s medical data to a receiving physician. Hellerstedt gave more power to clinics to self-regulate and put a heavier burden on states to justify health and safety regulations. 

This enabled abortion clinics to launch an attack on a wide variety of abortion regulations. Since June 2016, abortion advocates have filed or renewed court challenges to regulations in more than two dozen states, including ultrasound laws, informed-consent laws, parental-notice laws, and medical-data-reporting requirements. A recent report by the Guttmacher Institute, a think tank supportive of abortion rights, says that at least eleven state laws regulating abortion providers and facilities are currently temporarily or permanently enjoined. 

The Hellerstedt decision has also fostered confusion in the federal courts. Federal courts have reached differing decisions as to how Hellerstedt applies to the various regulations being challenged, because the Supreme Court gave them wide discretion to apply subjective standards. Hellerstedt has been criticized by a number of legal scholars as vague and confusing.

After Hellerstedt, a report by my colleagues at Americans United for Life documented more than 1,400 health and safety deficiencies and violations of state regulations by 227 providers in 32 states over the 2008–2016 period. The Court did nothing in Hellerstedt to address the substandard conditions in abortion clinics that still persist, or to tell states how they might do so without risking litigation.  

Though the Supreme Court has twice upheld state laws mandating that only licensed doctors can perform abortions, abortion-advocacy organizations have launched new court challenges to at least one-quarter of these state laws since 2016. Physician-only laws are necessary to maintain high standards for patient care. An October 2009 study published in Obstetrics & Gynecology found that chemical abortions have a higher complication rate than surgical abortions. A March 2013 study published in the American Journal of Public Health showed that non-physicians doing aspiration abortions had nearly twice the rate of complications that physicians had.  

The health and safety laws struck down in Hellertstedt are preventive. They set reasonable standards for clinics to prevent injuries. Without such preventive standards, women injured by abortion are left with no other recourse than the American personal-injury litigation system. But personal-injury litigation is expensive, and personal-injury attorneys are not financially interested until they’re confident in a substantial monetary reward, and that requires a horrific, life-threatening injury. Women who suffer hemorrhage, a lacerated cervix, or a punctured uterus during an abortion usually have no recourse in the personal-injury litigation system and thus no effective remedy. So, every woman considering an abortion in a state is helped by high standards for patient care. 

No county, state, or federal agency in the U.S. collects comprehensive data on abortion or abortion complications. Unlike the normal physician–patient relationship in America, the standard procedure for abortion clinics is to tell patients who suffer complications, “Don’t come back here. Go to the nearest emergency room.” That practice enables clinics to avoid seeing or reporting their own mistakes. An emergency-room doctor often can’t confidently tell the difference between a heavy period, hemorrhaging, a spontaneous miscarriage, and an abortion. That means the emergency-room doctor can’t accurately record the correct code for the procedure, and it often won’t be accurately recorded as a public-health matter. Through filters such as these, abortion complications are weeded out of the American public-health system, and the problems in abortion clinics are thoroughly obscured.     

The primary if not exclusive responsibility for these problems lies with the justices.  Through their delegation of power, the justices empower the lower federal courts to entertain suits, delay or prevent the enforcement of health and safety standards, and invalidate health and safety laws without an extensive review of the facts. This has continued for more than four decades, and the Supreme Court’s role as the national abortion-control board continues without end in sight.  

Law & the Courts

An Anniversary Worth Celebrating

Supreme Court Justice Clarence Thomas in Washington, D.C., June 1, 2017 (Jonathan Ernst/Reuters)

Today is the anniversary of perhaps the most consequential decision made by President George H.W. Bush. On July 1, 1991, he nominated Clarence Thomas to the U.S. Supreme Court.

Thomas was nominated to replace Justice Thurgood Marshall, whom Professor Stephen Carter called an “old soldier of liberalism.” Thomas and Marshall represented two radically different approaches to judging and, as they often do, the conflict over Thomas’s nomination was really a conflict over judicial power. It was a conflict over whether to retain or reject America’s founders’ design for the judiciary.

Thomas was nominated because he embraced that design. Even before his tenure on the U.S. Court of Appeals for the D.C. Circuit, Thomas wrote that treating provisions in our written Constitution as sources of unwritten rights that only judges can discern turns the Constitution into “a blank check.”

Legal analyst Gordon Crovitz wrote at the time that Thomas “views his job as interpreting the law and not making it up or ruling for or against parties based on who they are.”

Thomas has followed the same principles on the Supreme Court. In a 1996 speech at the University of Kansas law school, he offered some reflections on “the process and theory of judging.” The duty of the federal courts, he said, “is to interpret and enforce . . . the Constitution and the body of federal statutory law” and to do so impartially. That duty requires “reducing judicial discretion” by, for example, interpreting the Constitution by seeking “the original understanding of the provision’s text . . . We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.”

Fast forward to Thomas’s concurring opinion last month in Gamble v. United States, in which he also reflected on “our judicial duty” and, in particular, on the role that the Supreme Court’s precedents should play in its decision-making. As he had nearly a quarter century earlier, Thomas described the temptation for judges to decide cases based on their personal preferences rather than the law. Since federal judges “interpret and apply” written law such the Constitution, statutes, and regulations, they can resist this temptation best by “adherence to the correct, original meaning of the laws we are charged with applying.”

The real Constitution, the one that is the “supreme law of the land,” includes “the original meaning of the relevant legal text.” To be sure, that constitution presents a problem for certain political interests trying to achieve certain political objectives. At that point, something has to give. Thomas’ approach to judging says that the Constitution must win over politics every time.

For nearly three decades, Justice Clarence Thomas has shown how the judiciary can support or undermine our liberty by following rather than trying to control the law. America’s founders designed the judiciary, and President Bush nominated Thomas, to be on the right side of that conflict.

Law & the Courts

This Day in Liberal Judicial Activism—July 1

Robert Bork at his Senate confirmation hearings in 1987. (CNP/Getty)

1987—Upon President Reagan’s announcement of his decision to nominate D.C. Circuit judge Robert H. Bork to the Supreme Court, Senator Edward Kennedy races to the Senate floor to launch a viciously false attack on Bork:

Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens….

The campaign of calumny that Kennedy initiates will lead several months later to the defeat of Bork’s nomination.

2002—Federal district judge Jed S. Rakoff rules (in United States v. Quinones) that the federal death penalty is unconstitutional. In October 2002, a unanimous Second Circuit panel, in an opinion by Judge José A. Cabranes (a Clinton appointee), will reverse Rakoff’s ruling.

Law & the Courts

This Day in Liberal Judicial Activism—June 30


1993—In furtherance of his 1985 desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark orders the state of Missouri to fund salary increases for school-district staff in order to improve the “desegregative attractiveness” of the school district to non-minority students outside the district. By the time the Supreme Court reviews this and similar orders, the total salary assistance that Clark will have required the state of Missouri to provide will exceed $200 million.

In its 1995 decision in Missouri v. Jenkins, the Supreme Court will rule, by a 5-to-4 vote, that Clark’s orders of salary increases exceed his “admittedly broad discretion.”

2016—Federal district judge Carlton W. Reeves rules (in Barber v. Bryant) that a Mississippi law that provides protections against government reprisals for those who take various actions based on their conviction that marriage is the union of a man and a woman violates the Establishment Clause and the Equal Protection Clause.

One year later, a unanimous Fifth Circuit panel will reverse Reeves’s ruling on the ground that the plaintiffs in the case, having failed to show that they were injured by the law, lacked standing to challenge it.

2016—Perhaps Ninth Circuit judge Kim McLane Wardlaw is competing for a Lifetime Summary Reversal Award. As Judge Diarmuid O’Scannlain aptly sums it up in dissent, the panel opinion by Wardlaw in Cuero v. Cate “erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law.”

In 2017, a unanimous Supreme Court will summarily reverse Wardlaw’s ruling (in Kernan v. Cuero) and thus add to her record of dubious achievements.

Law & the Courts

Some Takeaways from Justice Kavanaugh’s First Term

Supreme Court justices Neil Gorsuch and Brett Kavanaugh at the Capitol in Washington, D.C. February 5, 2019. (Doug Mills/Pool via Reuters)

The end of Justice Kavanaugh’s first term on the Supreme Court is a fitting time to make some observations. This has not been a year marked by many ideologically divisive landmark decisions, but the latest spate of decisions tells us a lot more than we knew a few months ago. Recall speculation during the early spring that Kavanaugh and Chief Justice Roberts, who at the time had disagreed in only one reported decision, were forming a duo that was going to block a conservative majority on the Court. In fact, Kavanaugh has been a solid member of a new four-justice conservative bloc that is often (though unfortunately not always) joined by the Chief on key decisions advancing religious liberty, reestablishing federalism and separation of powers principles, and protecting the right to private property.

We have now seen enough to dispel a good deal of prejudgment on the junior justice. We can start with some statistics on the alignments of the justices. Among the merits decisions issued this term, Kavanaugh has disagreed with Roberts on at least part of the Court’s judgment in five cases, including Thursday’s lamentable decision on the census in Department of Commerce v. New York. That number increases to six if we add Kisor v. Wilke, where the two justices agreed with each other on the Court’s judgment but disagreed on that case’s key question of whether to overrule the Auer doctrine. (This tally excludes still another disagreement, Lorenzo v. Securities and Exchange Commission, where Kavanaugh did not participate because he had been part of the panel hearing the case in the D.C. Circuit, at which stage he dissented. A 6–2 Supreme Court affirmed the D.C. Circuit, and the two dissenters, Thomas and Gorsuch, reached the same conclusion Kavanaugh had in his earlier dissent.)

Whatever metric is used, Kavanaugh was more likely to disagree with Roberts on merits decisions than with the trio of Thomas, Alito, and Gorsuch, with whom he broke in only four cases that received relatively little public attention. For that matter, Kavanaugh, Thomas, and Alito each sided with one or more of the four liberal justices (at least on the judgment) without being joined by any conservatives on only one occasion.

Kavanaugh has disagreed with Alito in six decided cases, which barely surpasses the number of his disagreements with Roberts. All six of the disagreements with Alito occurred in lower profile cases. Moreover, the Court’s record consists of not only merits decisions, but also its additional orders regarding such procedural matters as stays and denials of certiorari. Upon examination of public records of the latter, we find three additional occasions when Kavanaugh and Alito, along with Thomas and/or Gorsuch, disagreed with Roberts:

  • Trump v. East Bay Sanctuary Covenant (Thomas, Alito, Gorsuch, and Kavanaugh dissenting from the Court’s refusal to lift a lower court injunction prohibiting the Trump administration from immediately reinstating its policy of denying asylum to migrants who illegally cross the Mexican border).
  • June Medical Services v. Gee (Thomas, Alito, Gorsuch, and Kavanaugh dissenting from the grant of stay on a challenge to Louisiana’s admitting-privileges requirement for doctors who perform abortions).
  • Dahne v. Richey (Thomas, Alito, and Kavanaugh dissenting from the denial of certiorari where the Ninth Circuit required a prison to entertain a prisoner’s grievance when it used language containing a veiled threat).

There were also two more occasions when Kavanaugh joined Alito and at least one other conservative in opinions that Roberts did not join:

  • Kennedy v. Bremerton School District (Thomas, Alito, Gorsuch, and Kavanaugh concurring in the denial of certiorari in a case involving a public high school football coach who claimed he was fired for kneeling on the field to pray after games, but asserting that “the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future”).
  • Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation (Alito, Gorsuch, and Kavanaugh concurring in the denial of certiorari for procedural reasons, but noting in an opinion by Kavanaugh that New Jersey’s prohibition of historic preservation funds to religious buildings simply because they are religious “is in serious tension with this Court’s religious equality precedents”).

There were no occasions when Roberts joined Alito or the other conservative justices on opinions relating to orders without Kavanaugh also joining them. Of course, dispositions on procedural matters do not necessarily lend themselves to predictions of how justices would ultimately rule on the merits, but Kavanaugh has given encouraging signals as to how he would rule when the Court does have the opportunity to consider the above issues on the merits. Additionally, the overall record from publicly available data suggests that the justice to whom Kavanaugh has been closest ideologically during this term is Alito.

Returning to merits decisions, note how Kavanaugh voted in other key cases this term:

  • American Legion v. American Humanist Association, joining a majority that rejected a challenge to the Bladensburg cross and finally recognized the inapplicability, at least in this context, of the Court’s long-withering Lemon test.
  • Rucho v. Common Cause, joining a 5–4 majority that held partisan gerrymandering claims present political questions beyond the reach of federal courts.
  • Knick v. Township of Scott, joining a 5–4 majority that overruled Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, a 1985 precedent that had made it harder to seek just compensation for government takings by first requiring claimants to seek compensation in state court before doing so in federal court.
  • Franchise Tax Board of California v. Hyatt, joining a 5–4 majority that defended the principle of sovereign immunity and held that states are immune from suit in the courts of other states, overruling Nevada v. Hall (1979).
  • Box v. Planned Parenthood, joining a majority that reversed the Seventh Circuit’s invalidation of an Indiana law regarding the disposal of fetal remains by abortion providers.

Because of Roberts’ votes in the Kisor and Department of Commerce cases, which may have the unfortunate effect of confusing and even politicizing administrative law, Kavanaugh’s commendable votes in those cases fell just short of giving the Court a majority. But there is much to praise in what the Court was able to accomplish this term with its newest justice, whose record demonstrates that he still adheres to the principles of originalism and textualism he professed before joining the Court.

Law & the Courts

This Day in Liberal Judicial Activism—June 29


1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws.

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:

“Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.” 

Law & the Courts

This Day in Liberal Judicial Activism—June 28

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

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A Mixed Bag on the Court’s Last Day with an Unforced Error on the Census

A protester holds a sign outside the Supreme Court in Washington, D.C., June 27, 2019. (Carlos Barria/Reuters)

Today the Supreme Court concluded its October 2018 term with three decisions, including two of the most closely watched of the term. I have reviewed here the Court’s commendable decision in Rucho v. Common Cause, recognizing that the Constitution does not authorize courts to redraw districts in response to challenges to partisan gerrymandering.

In Department of Commerce v. New York, however, the Court dropped the ball on the challenge to the Trump administration’s decision to reinstate a question about citizenship in the census. At any other time in history, an administration’s decision to do so would have been considered unremarkable. The census has traditionally asked a host of questions about background that include race, sex, age, Hispanic origin, and living arrangements. Census authorities have been asking about citizenship status in one form or another for nearly all of the past 200 years, whether as a component of the decennial census or since 2005 as part of the American Community Survey (ACS), an annual survey that reaches a rotating sample of about 2.6% of households.

The Secretary of Commerce announced his decision to reinstate the census in 2018 at the request of the Justice Department, as an improvement of the methodologically flawed, often inaccurate ACS-collected data about the citizen voting-age population for purposes of enforcing the Voting Rights Act (VRA).

In reaching this decision, he rejected the recommendation of the Census Bureau to rely for citizenship data on administrative records from other agencies, such as the Social Security Administration and Citizenship and Immigration Services. To be sure, there were tradeoffs involved no matter what the secretary decided to do: There was a risk that noncitizens would not fill out a revised census form (though evidence also suggested noncitizen households were less likely to respond to any effort by the government to collect information), but consider the inaccuracies that would result if the government declined to make the effort to collect comprehensive answers to begin with.

In any event, the first several sections of the Court’s opinion dealing with the merits rejected challenges to the secretary’s decision based on the Enumeration Clause of the Constitution, the Census Act, and the Administrative Procedure Act (APA)’s requirement that decisions be supported by the evidence. The secretary’s decision was a reasonable one—and reasonably explained—that passed muster on all these fronts, not because an argument could not be made for the secretary to have decided otherwise, but because longstanding principles of judicial review of such executive action prevent the Court from substituting its own judgment for that of the secretary. Those sections of the Court’s analysis, written by Chief Justice Roberts, were joined by only four justices, Thomas, Alito, Gorsuch, and Kavanaugh—who, if they had their way, would have ended the inquiry there.

Unfortunately, the last section of Roberts’ opinion veered off the course of what should have been a straightforward inquiry with the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan. There the Court held the secretary’s decision should be set aside, as the district court had held, and the case remanded to the agency because, based on a review of internal agency records produced to the district court, the Court believed “the VRA enforcement rationale” was pretextual, something that “seems to have been contrived.”

That novel standard for impeding the federal government’s collection of basic demographic information is what seems to be contrived, and in a troublingly partisan direction. As Thomas put it in dissent, it was a departure from the “more impartial approach” required by law in favor of that of the district court, which was “transparently based on the application of an administration-specific standard.” The Court made “an unauthorized inquiry into evidence not properly before us to reach an unsupported conclusion,” holding for the first time that an agency decision was “arbitrary and capricious on the ground that its supporting rationale was ‘pretextual,’” contrary to the “‘settled propositions’ of administrative law.”

Gorsuch and Kavanaugh joined Thomas’ partial dissent from the Court’s judgment. Alito separately voiced similar concern about the Court’s aberration from longstanding principles governing review of executive decisions and made the further argument that the secretary’s decision was not subject to a challenge under the APA.

Breyer issued an opinion dissenting from the other aspects of the Court’s judgment, joined by Ginsburg, Sotomayor, and Kagan. They made clear they would have invalidated the secretary’s decision as arbitrary and capricious regardless of whether it was pretextual—a glimpse into the judicial free-for-all that would follow if that bloc of the Court had another vote to second-guess presidential administrations not to their liking.

Citizenship is foundational to a democracy, and the Fourteenth Amendment notably affirms citizenship and the privileges and immunities attached to it. But nowadays, the increasingly-radical Left is rejecting the notion that citizenship has any real meaning and believes that the right to vote no longer needs to be attached to citizenship. That background may explain the appropriateness of Alito’s lament:

It is a sign of our time that the inclusion of a question about citizenship on the census has become a subject of bitter public controversy and has led to today’s regrettable decision. While the decision to place such a question on the 2020 census questionnaire is attacked as racist, there is a broad international consensus that inquiring about citizenship on a census is not just appropriate but advisable.

The sad irony is that the Court’s unforced error presents a gratuitous impediment to the federal government’s collection of basic demographic information that would have aided its efforts to protect the voting rights of all citizens.

Law & the Courts

On Today’s Decision on Political Gerrymandering

A quick summary, with some commentary, on today’s combined ruling (Rucho v. Common Cause) on the two redistricting cases from North Carolina and Maryland:

1. By a vote of 5 to 4, the Court ruled that claims of excessive partisan gerrymandering present “political questions” that lack any judicially discoverable and manageable standards for resolving them and that therefore cannot be decided by the federal courts.

Chief Justice Roberts, joined by his four conservative colleagues, wrote the majority opinion. Justice Kagan, joined by her three liberal colleagues, wrote the dissent. (There were no additional opinions.)

Today’s ruling adopts as a majority holding the conclusion of nonjusticiability that Justice Scalia advocated for a four-justice plurality fifteen years ago in Vieth v. Jubelirer.

2. The heart of the Chief’s opinion goes something like this:

Everyone agrees that some partisan gerrymandering is permissible. The challenge is to distinguish permissible partisan gerrymandering from excessive partisan gerrymandering.

One difficulty is that it is not even clear what fairness looks like in this context: More districts that are competitive? A share of seats that approximates the proportional vote statewide? Adherence to traditional districting criteria, such as maintaining political subdivisions, keeping communities of interest together, and protecting incumbents? The choice among these different visions of fairness is political, not legal.

Even after you define fairness, you have to ask how much deviation from the fairness standard is too much. The Constitution supplies no answer. Nor do our precedents.

None of the “tests” proposed by the plaintiffs or the dissent “meets the need for a limited and precise standard that is judicially discernible and intelligible.” (Slip op. at 22-29.)

“Excessive partisanship in districting leads to results that reasonably seem unjust.” But that doesn’t mean that a solution lies with the federal judiciary. The states can address the issue of partisan gerrymandering, and the Constitution also gives Congress the power to do so.

3. In her dissent, Justice Kagan argues that “federal courts across the country … have largely converged on a standard for adjudicating partisan gerrymandering claims.” That standard “takes as its baseline a State’s own criteria of fairness” and then puts the burden on plaintiffs challenging a districting plan (a) to prove that state officials had the “predominant purpose” of entrenching their party in power; and (b) to show that the lines drawn had the effect of substantially diluting their votes.

Kagan argues that both the North Carolina plan (adopted by Republicans) and the Maryland plan (adopted by Democrats) are unconstitutional under this standard.

4. I’m puzzled by the attention-grabbing opening of Kagan’s dissent: “For the first time ever, this Court refuses to remedy a constitutional violation because it thinks the task beyond judicial capabilities.”

That sentence seems to imply that the majority believes that the North Carolina and Maryland plans each amount to “a constitutional violation.” But while the Chief does say that “These cases involve blatant examples of partisanship driving districting decisions,” he does not say that the plans are unconstitutional. His very point is that he sees no way to draw the line between permissible partisan gerrymandering and excessive partisan gerrymandering.

I also don’t understand Kagan’s “first time ever” claim. The “political question” doctrine is well established (even as its contours are disputed). By its very nature, the doctrine allows asserted  constitutional violations to occur because the task of addressing whether the asserted violation is an actual violation is “beyond judicial capabilities.”

5. The Washington Post’s Charles Lane argues (as the headline of his piece accurately sums it up) that progressives “should be glad they lost” the case. I particularly like his point that the conservative justices “have renounced a power to manipulate U.S. politics that they could have used quite mischievously if the justices were indeed the partisan hacks their critics claim them to be.”

In other words, if the Left really believed its scorching rhetoric about the conservative justices, the last thing it should want would be for those justices to be distinguishing between permissible and impermissible partisan gerrymanders. Given the complexity of assessing gerrymandering, it would not be a difficult thing for a genuine Republican partisan to conclude that the North Carolina plan (favoring Republicans) is just fine but that the Maryland plan (favoring Democrats) is forbidden.

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