Law & the Courts

More on Status of Breyer Retirement

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For those few readers interested in the metaphysics of judicial retirements, I offer a couple of follow-on thoughts to my post from a couple of weeks ago in which I explained why I believe that Justice Breyer has not yet taken the action necessary to effectuate his retirement at the end of the Court’s term.

Let me reiterate that this is a purely academic inquiry, as it is clear that Breyer will resign. Let me also emphasize that this issue is distinct from the question whether President Biden has validly prospectively appointed Judge Ketanji Brown Jackson to Breyer’s seat, with such appointment taking effect once the seat is vacant.

1. At the close of the Court’s last scheduled argument session on April 27, the Chief Justice stated that “Justice Breyer has announced his retirement from the Court, effective when we rise for the summer recess.” The Chief further stated that “at the appropriate time, we will in accordance with tradition and practice, read and enter into the record an exchange of letters between the Court and Justice Breyer marking his retirement.”

I wouldn’t read the Chief’s statement that Breyer “has announced his retirement from the Court” as staking out a legal position that Breyer’s January 27 letter to President Biden suffices to effect Breyer’s retirement “when the Court rises for the summer recess this year” (Breyer’s language in his letter). The Chief, it would seem, is just speaking in the vernacular. In the same way, one might say that Biden nominated Judge Jackson to the Supreme Court on February 25, without taking a position on whether the actual nomination, for purposes of the Appointments Clause of the Constitution, took place when Biden submitted his nomination of Jackson to the Senate on February 28.

Conversely, I wouldn’t read the Chief’s statement about a future “exchange of letters between the Court and Justice Breyer marking his retirement”—an exchange that I assume will take place on the last day of the term—as staking out a legal position that such an exchange is necessary to effect Breyer’s retirement. But it should be sufficient to do so, and will thus render irrelevant whether Breyer’s January 27 letter was itself sufficient.

2. Even if Breyer’s January 27 letter would suffice to effect his retirement at the end of the term, there is the separate—and, again, entirely academic—question whether Breyer could still retract such a retirement decision.

Back in 1974, the Department of Justice’s Office of Legal Counsel had occasion to opine whether a federal judge could withdraw his decision to retire. (OLC provided me a redacted copy of its opinion years ago, but I am only now having occasion to make it public.) In that instance, the judge had sent President Nixon a letter dated February 12, 1974, setting forth his decision to retire from regular active service, effective April 1, 1974, because of permanent disability. But eight days later, he sent Nixon a second letter stating that (in OLC’s summary) “he had received further medical advice which has led him to believe that he is not permanently disabled” and therefore wished to withdraw his election to retire.

OLC’s opinion cites with approval “a number of recent court rulings” that have “established” that “a resignation to take effect in the future may be withdrawn prior to its effective date, especially where, as here, it had not been accepted prior to that time.” It also invokes an “additional consideration” raised by the statutory provision governing permanent disability.

OLC’s advice generally governs the executive branch, so it is an interesting question whether it means that Breyer could retract his January 27 letter—and, if so, whether the current OLC and the White House would abide by the 1974 opinion. On the one hand, the 1974 opinion indicates that it might matter whether the president has “accepted” a judicial retirement. On any coherent understanding of that concept, it seems plain that Biden has accepted Breyer’s prospective retirement. On the other hand, it is difficult to imagine that the White House would try to, or would be able to, force Breyer to go ahead with his retirement if he in fact were to change his mind.

What all of this does suggest is that, as law professor Richard Re argues more extensively in “The Peril and Promise of SCOTUS Resignations,” it would be good for Congress to craft a federal statute that would provide clarity on how Supreme Court justices and other federal judges should effect their retirement.

Law & the Courts

This Day in Liberal Judicial Activism—May 1

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1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause. 

One year later, the Supreme Court will reverse the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices Blackmun, Stevens, O’Connor, and Souter dissent.  

2003—Two years after being nominated to the Fifth Circuit, the eminently qualified Texas supreme court justice Priscilla Richman Owen encounters another step in the Democrats’ unprecedented campaign of obstruction against President Bush’s judicial nominees. The first of five Senate cloture votes on her nomination fails to obtain the necessary 60 votes for approval, as only two of 49 Democrats vote for cloture. Owen’s nomination will finally be confirmed more than two years later (and more than four years from her initial nomination)—on May 25, 2005. 

Law & the Courts

How to Battle Biden’s Regulatory Leviathan and Win (Even on LGBT Issues)

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(AlxeyPnferov/iStock/Getty Images)

It seems like every other week, a new gender-identity announcement has come out of the Department of Health and Human Services (HHS). See here, here, here, here, here, here, here, and here. This flood was expected after President Biden appointed a leftist, Xavier Becerra, as HHS Secretary and transgender-activist par excellence, Dr. Rachel (formerly Richard) Levine, as Assistant Secretary of Health. But a funny thing happened on the way to transforming HHS into the Department of Health and Gender Services. The Centers for Medicare & Medicaid Services (CMS), an HHS sub-agency, just abandoned its plans to force millions of people to pay for other people’s transgender treatments by declaring them “essential health benefits” under proposed Obamacare insurance regulations. You may be wondering how this surprising about face came to pass. It was because a dedicated coalition of advocates discovered this radical proposal to transform health care and used nothing but their knowledge and voices to block it.

Here’s how we did it.

Literally one of the first things Biden did after entering office was sign an Executive Order giving every federal agency 100 days to submit a plan to “promulgate new agency actions” to further the LGBT agenda, including with respect to “access to healthcare.” In keeping with this promise, last October, HHS bragged that it had launched a pilot program requiring transgender insurance coverage in Colorado that included “eye and lid modifications, face tightening, facial bone remodeling for facial feminization, breast/chest construction and reductions, and laser hair removal.” So, if you are in Colorado, there is a good chance your insurance premiums are helping to pay for breast implants and chin tucks for biological men.

As I told the Washington Post at the time that, “This is a liberal administration and governor colluding to mandate coverage for a lifetime of cross-sex hormones and removal of healthy organs, including for minors. . . . Their end game is clear, to push these dangerous experimental treatments on kids and unwilling families as a national insurance mandate.”

I hate to say I told you so, but . . . allow me to direct you to January 5 of this year, when CMS posted a 408 page proposed regulation innocuously titled “Patient Protection and Affordable Care Act; HHS Notice of Benefit and Payment Parameters for 2023.”

Normally, these sorts of regulations contain lots (and lots) of boring technical insurance changes that only an ERISA lawyer could love. But not with this administration. It took this anodyne regulation as a golden opportunity to impose the “essential health benefits” transgender-insurance mandate nationwide. Quietly unveiling such a major change in such an unlikely place — during the holiday season no less — is bad enough, but giving the public a mere 22 days (instead of the typical 60) to submit comments on the regulation reeks of cynicism and disrespect. The Biden people clearly hoped the American public wouldn’t notice, and most people didn’t. But not everyone.

Because I had successfully worked to restore the scientific and biological understanding of sex at HHS while a senior official there during the Trump administration, I had a personal interest in this issue and wasn’t about to let this one slip by without a fight.

So, after rallying like-minded folks and several long nights of drafting, I, along with my EPPC colleagues Rachel Morrison, Ryan Anderson, and Mary Hasson, submitted formal comments to the agency opposing the rule, as did my colleagues at the Heritage Foundation, five Senate and 20 House Republicans, the Christian Employers Alliance, the Christian Medical & Dental Associations, the Family Policy Alliance, the Family Research Council, the Southern Baptist Ethics & Religious Liberty Commission, as well as the United States Conference of Catholic Bishops, Christian Legal Society, National Association of Evangelicals, National Association of Catholic Nurses, U.S.A., The National Catholic Bioethics Center, and Thomas More Society (jointly).

We objected to the rule enshrining bad medicine into law, especially concerning children. We objected to the rule’s coercion. We objected to its exorbitant costs. We objected to the breaks with proper procedure. We also substantiated all the above with evidence.

In the face of this coordinated response, and to my genuine surprise, yesterday, HHS caved. It completely abandoned the transgender-insurance portions of the proposed rule, saying that they would deal with the issue in a future rulemaking under antidiscrimination provisions known as Section 1557 of Obamacare. This allowed HHS to finalize the bulk of the technical, boring parts of the rule without having to respond to our comments. Unbeknownst to most citizens, federal agencies are required by law to read, evaluate, and respond to substantive comments submitted on regulations.gov before the deadline for major rules. Here, HHS choose to raise the white flag, at least for now, in order to avoid having to deal with the many weighty objections we raised, even though the proposed rule was explicitly justified as furthering a presidential priority. Our comments caused internal debate and dissension within the Biden administration about priorities and resources resulting in the scrapping of the original plans. This tremendous victory was achieved solely because a group of us exercised our rights to petition the government for a redress of grievances. See Amend. I, U.S. Const.

Will this radical administration try to impose a transgender mandate again in the future? Absolutely. But now, they will have to start the process all over again, and when that time comes we will be ready, and next time, we’re bringing friends.

Law & the Courts

This Day in Liberal Judicial Activism—April 29

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1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

Law & the Courts

Democrats Claim to Restore the Confidence in the Supreme Court That They Are Destroying

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The nine Supreme Court justices pose for a group photo in Washington, D.C., April 23, 2021. (Erin Schaff/Reuters)

The latest skirmish in the campaign by Democrats and their liberal allies to simultaneously demonize and politicize the Supreme Court took place yesterday in a House Judiciary subcommittee. I witnessed some misleading hearings in my 15 years as a Senate Judiciary Committee staffer, but this was one of the worst.

Here’s the backstory. Democrats and their liberal allies will never forgive Republicans for two recent confirmation sins. In 2016, Republicans prevented President Barack Obama from flipping the Court’s 5-4 Republican majority by refusing to consider his nominee to replace the late Justice Antonin Scalia. Four years later, Republicans bumped that margin to 6-3 by confirming Justice Amy Coney Barrett, President Donald Trump’s nominee to replace the late Justice Ruth Bader Ginsburg.

Never mind that Democrats would have done the same in both instances had the partisan roles been reversed. Those two actions made more elusive the thoroughly politicized, interest-driven Supreme Court that the Left needs to implement much of its political agenda.

Liberals might have, say, tried convincing Americans and the legislators they elect that the liberal agenda is a good thing after all. Or they might have made the case that certain Supreme Court decisions were wrong on the merits. But they didn’t. Instead, liberals figured if they can’t have the politicized Supreme Court they want, they will demonize and undermine the non-politicized Supreme Court they don’t.

Which brings us to yesterday’s hearing. Consistent with the strategy, it was titled “Building Confidence in the Supreme Court Through Ethics and Recusal Reforms.” The title furthers the spin that confidence must be rebuilt because it has crumbled in the face of unethical behavior by Supreme Court justices or, more precisely, by Republican-appointed justices (Democrat appointees are apparently ethically pure as the driven snow).

The Supreme Court should have an ethics code, the spin goes, because lower-court judges as well as the legislative and executive branches have one. That, however, is an observation, not an argument, and it wrongly implies that the lower courts and Supreme Court are equals and that the three branches are simply interchangeable. Subcommittee chairman Hank Johnson (D., Ga.), for example, has introduced legislation to require the Judicial Conference of the United States to “issue a code of conduct, which applies to each justice and judge of the courts of the United States.”

This hearing was seriously misleading on multiple levels. First, the Constitution created the Supreme Court, while Congress created the lower courts. Simply observing that the lowers courts follow a particular policy, therefore, does not automatically mean that the Supreme Court should do so or that Congress has authority to make it happen.

Neither side seemed to notice when one of the Democrats’ own witnesses made this crucial point during the hearing yesterday. Professor Stephen Gillers, a well-known expert in judicial ethics, testified that “there are serious separation-of-powers questions over whether or not Congress can adopt an ethics code for the Court which is, like Congress, created by the Constitution.” He’s right.

Second, the Judicial Conference is the policy-making body for the lower federal courts. It has no authority over the Supreme Court. Johnson’s bill, therefore, would task the Judicial Conference with doing something it really has no authority to do.

Third, despite all the huffing and posturing, the Johnson bill would not require that the Supreme Court pay any attention to, let alone follow, any code of conduct from whatever source.

Fourth, the separation of powers also means that observing that the legislative and executive branches have their own ethics codes or policies is just that — an observation and nothing more. It is no argument at all, therefore, that the judicial branch in general, or the Supreme Court in particular, should have one.

Fifth, Democrats observed yesterday that general public approval of the Supreme Court reached a low of 40 percent in Gallup polls, but here’s some of what they failed to mention. Since most Americans know next to nothing about our system of government in general, and the judiciary in particular, they give the Supreme Court a thumbs-up-or-down based on whether they like the result of its latest high-profile decision. Or worse, the public’s perception of the Supreme Court might mirror how the mainstream media portray it. If that’s the case, it’s a wonder that its approval rating is not still lower.

The fact that Congress has ethics rules has not helped bolster public confidence in that branch of government. The website pollingreport.com aggregates polls on many issues by more than a dozen major pollsters. Congress failed to reach 40 percent (the Supreme Court’s lowest) approval in any of the 341 listed polls over the last decade. Congress’ average approval of 18 percent over that period is a mere shadow of the Supreme Court’s 47 percent average. It turns out that the House of Representatives is made of glass, and Democrats may not have thought through offering themselves as the standard for ethical virtue.

That much of the hearing was misleading, but it also had a darker side. In addition to demonizing a Supreme Court they do not control, the Democrat/liberal cabal also wants to exploit the controversy over the events of January 6, 2021. To that end, they seized on the news that Justice Clarence Thomas’ wife, Ginni, sent text messages regarding the outcome of the 2020 election to then-White House chief of staff Mark Meadows. Ah, thought the Left, the chum is in the water, and all we have to do is stir.

Justice Thomas was a specific target of vitriol at yesterday’s hearing because he had not recused himself from a case titled Trump v. Thompson. The House January 6 Committee requested presidential records from the archivist of the United States regarding the events of that day, and Trump sought to block disclosure by claiming executive privilege over some of them. President Joe Biden, however, declined to do so. The U.S. Court of Appeals (with an all-Democrat panel) refused to issue an injunction, and Trump appealed. The Supreme Court voted 8–1 against blocking disclosure while its merits were being litigated. A single sentence read: “Justice Thomas would grant the application.” That’s it. Nothing about the merits or the issues, nothing about the election or Trump’s claims about it, nothing about the House investigation. In fact, Thomas did not actually write anything at all, but simply voted to put the disclosure temporarily on hold until the legal issues could be fully resolved.

That became a wild tale about the Thomases plotting and scheming to take over America, or Justice Thomas using his Supreme Court position to promote his wife’s political interests, or a few other flights of fancy. That became accusations that Justice Thomas was unethical, flouting federal law in declining to recuse, and calls for him to resign or be impeached. Make no mistake, once the fictional account of Ginni Thomas’s actions is replaced with the truth (see here, here, and here), nothing required Justice Thomas to recuse himself from that case. The Heritage Foundation’s John Malcolm participated in a panel discussion (watch it here) that made this clear. And suggesting that his wife’s views or activities somehow amount to him having committed “treason, bribery, or other high crimes and misdemeanors” justifying impeachment is beyond delusional. It is a lie – a deliberate attempt to smear a justice by capitalizing on the public’s ignorance.

Two recent polls (here and here) found that more than 60 percent of Americans believe the Supreme Court decides cases primarily by politics rather than the law. That’s perhaps not surprising, given the steady stream of propaganda from Democrats and their liberal co-conspirators that Supreme Court decisions you don’t like are “political” while the ones you like are impartial.

The Left, therefore, is not responding to a crisis of confidence that already exists, but one of its own making. Claiming to now have the solution is a little like the guy who murdered his parents and then asks the court for mercy because he’s an orphan.

Law & the Courts

This Day in Liberal Judicial Activism—April 28

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2001—Senate Democrats convene at a resort to develop a strategy to escalate their fight against President George W. Bush’s prospective judicial nominees. High on their list is launching an unprecedented campaign of partisan filibusters of lower-court judicial nominations.

Senator Jim Jeffords’s decision weeks later to join the Democratic caucus will give the Democrats a Senate majority and enable them to shelve the filibuster weapon. But in 2003, after Republicans regain control of the Senate, Democrats will unleash their campaign. Over a period of two years, ten of President Bush’s appellate nominees will endure a total of 20 defeated cloture motions.

2009—In a terribly muddled speech to the ACLU of Puerto Rico, Second Circuit judge Sonia Sotomayor offers a blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions.

Nominated a month later to the Supreme Court by President Obama, Sotomayor at her confirmation hearing will try to bamboozle Republican senators and the public about her views on this controversial issue. For example, in answer to a question from Senator Sessions, Sotomayor will declare, “Foreign law cannot be used as a holding or a precedent or to bind or to influence the outcome of a legal decision interpreting the Constitution or American law that doesn’t direct you to that law.” Similarly, she responds to Senator Coburn, “I will not use foreign law to interpret the Constitution or American statutes.”

Only after the cameras are off, in her written responses to post-hearing questions (see point 6 here), will Sotomayor reveal that she believes that it’s fine for American judges to draw freely on foreign and international law.

Law & the Courts

Doubting the Chief Justice?

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In its strong lead editorial today, the Wall Street Journal editorial board reiterates its call for the Supreme Court to use the pending case of Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and thus allow abortion law to “sort itself out democratically.” In the course of its argument, the WSJ speculates that Chief Justice Roberts might instead be trying “to find a middle way” and to “to pull[] another Justice to his side,” and thus prevent a majority ruling that would overturn Roe.

I remain hopeful that the WSJ’s speculation is unsound. It’s one thing for the Chief to have explored the possibility of a “middle way” at oral argument. It would be quite another thing for him to pretend to have found a path that doesn’t exist. In my judgment, the WSJ is far too generous in suggesting that such a path “might be explainable with some legal dexterity”—unless, that is, dexterity is a gentle euphemism for rank sophistry.

As my own WSJ op-ed pointed out on the day of oral argument in Dobbs, the Chief’s actual record—including the principles that he has spelled out on when bad precedent should be overruled and his broader jurisprudential commitment to deference to the political branches—dictates that he should vote to overturn Roe. So do his proper concerns for the Court’s institutional legitimacy:

The immediate aftermath of the overruling of Roe might well be messy and contentious. But unless concerns over the court’s legitimacy are mere camouflage for the court’s self-aggrandizement, a sound institutionalism must also respect the legitimacy of the state legislatures that our Constitution leaves with primary authority over abortion policy.

By contrast, if the Chief were to concoct an implausible middle way, he would discredit himself and invite endless bullying. Even worse, if he were somehow to pull a justice away from a 5-justice majority that is ready to overturn Roe, he would, as the WSJ points out, merely “prolong the Court’s abortion agony.”

There will be no better occasion than Dobbs to inter Roe. Let’s hope that the Chief proves all his doubters wrong.

Law & the Courts

This Day in Liberal Judicial Activism—April 27

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2015—Federal district judge Jon S. Tigar denies the state of California’s request for a stay, pending appeal, of his preliminary injunction ordering the state (supposedly pursuant to the Eighth Amendment) to provide prisoner Jeffrey Norsworthy “sex reassignment surgery as promptly as possible.”

Tigar agrees that the state’s appeal raises a serious legal question but he concludes that the state can’t show irreparable injury from denial of the stay. Never mind that, if the mutilation-as-surgery goes forward, the state will never be able to recover the costs of surgery that it incurs. Tigar’s denial of the stay is evidently designed to render the matter moot—what relief could the state obtain post-surgery?—and thus immunize his own ruling from appellate review.

A Ninth Circuit panel will promptly issue an order staying Tigar’s injunction pending appeal. But one day before oral argument on the Ninth Circuit appeal, the state will release Norsworthy on parole.

Law & the Courts

This Day in Liberal Judicial Activism—April 26

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U.S. Supreme Court in Washington, D.C. (Joshua Roberts/Reuters)

1987—In an unspeakably brutal crime, Donald Middlebrooks (a 24-year-old white male) and two accomplices kidnap Kerrick Majors, a 14-year-old black youth, decide to “have some fun” with him, tie his hands, and take him into the woods. There, according to Middlebrooks’s videotaped confession, one accomplice, Roger Brewington, beats Majors with brass knuckles, hits him with a stick, and urinates into his mouth; Middlebrooks slaps Majors and hits him with a switch; and the other accomplice burns his nose with a cigarette lighter. Brewington then abuses Majors’s private parts, beats and gags him, and slashes his wrist. Middlebrooks asks Brewington to stop and initially refuses Brewington’s direction to stab Majors. But after Brewington stabs Majors, Middlebrooks does so as well. Majors dies at the end of the 3-1/2 hour ordeal.

Middlebrooks is convicted of first-degree felony-murder and aggravated kidnapping and is sentenced to death. On appeal, the Tennessee supreme court, by a 3 to 2 vote, vacates the death sentence. In a separate opinion, Chief Justice Lyle Reid, joined by Justice Martha Craig Daughtrey, goes even further, opining that the imposition of the death penalty for a conviction of felony-murder is cruel and unusual punishment under the state constitution. (The U.S. Supreme Court had rejected that conclusion under the Eighth Amendment.) Perceiving themselves as part of the enlightened elite charged with overriding the riff-raff’s benighted views, Reid and Daughtrey condemn the death penalty generally: “Implicit in death penalty jurisprudence is the recognition that the standards of decency are not static but evolving, that society is not stale but maturing, and that the level of community morality will continue to rise until the reasoned moral response of the people of Tennessee will be, if it is not already, that the death penalty is cruel and unusual punishment.” Ah, yes, in the eyes of the liberal judicial activist, no one exercising mature moral reasoning could possibly believe that the brutality inflicted on Kerrick Majors would call for the death penalty as a response.

In 1993, Daughtrey’s credentials as a liberal judicial activist earn her President Clinton’s appointment to the U.S. Court of Appeals for the Sixth Circuit. Meanwhile, on remand, Middlebrooks is again sentenced to death. In 1999twelve years after Majors’s brutal death—the Tennessee supreme court, with Reid and Daughtrey no longer serving on it, unanimously upholds the death sentence.   

2019—The Kansas supreme court rules (in Hodes & Nauser v. Schmidt) that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” means that any restriction on abortion must be subjected to strict scrutiny (rather than the more permissive “undue burden” standard that the U.S. Supreme Court misread into the federal Constitution in Planned Parenthood v. Casey in 1992). 

The ruling comes in a challenge to a Kansas law, enacted in 2015, that prohibits use of the dilation-and-evacuation (D&E) method of abortion except where necessary to preserve the life or health of the mother. D&E is the most common method of abortion in the second trimester. In his opinions in the partial-birth abortion cases (Stenberg v. Carhart (2000) and Gonzales v. Carhart (2007)), Justice Kennedy described what ordinary D&E entails (in order to distinguish it from partial-birth abortion, which is a variant of D&E). In his solo dissent, Justice Caleb Stegall quotes Justice Kennedy’s descriptions: 

The [D&E] procedure “requires the abortionist to use instruments to grasp a portion (such as a foot or hand) of a developed and living fetus and drag the grasped portion out of the uterus into the vagina.” Using the resistance “created by the opening between the uterus and vagina” the “grasped portion” is torn “away from the remainder of the body.” “For example, a leg might be ripped off the fetus as it is pulled through the cervix and out of the woman.” The baby then “bleeds to death as it is torn limb from limb.” The child “can survive for a time while its limbs are being torn off.” The heartbeat can continue even “with ‘extensive parts of the fetus removed.’” “At the conclusion of a D&E abortion . . . the abortionist is left with ‘a tray full of pieces.’” 

Six members of the Kansas supreme court would have you believe that a mother has a “natural right” to have her child killed in this way. 

In his lengthy and impressive dissent, Justice Stegall castigates the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”  

Law & the Courts

This Day in Liberal Judicial Activism—April 25

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1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution. 

1938—In his famous footnote 4 in United States v. Carolene Products Co., Justice Harlan F. Stone lays the foundation for courts, in addressing substantive due process claims, to exercise “more exacting judicial scrutiny” of certain disfavored classes of statutes.   

1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark all the way across the country to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.”

Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to the Third Circuit by President Clinton. In a letter to Clinton, Sarokin grandiosely claims that he has been targeted for public criticism for “protecting the constitutional rights of persons accused of crimes” and states his concern that his decisions will be used against Clinton in the upcoming presidential campaign. (How could anyone withstand Bob Dole’s withering criticisms?) In a letter to his Third Circuit colleagues, Sarokin unconvincingly maintains that his decision to retire was not based on the denial of his request to move his chambers. 

2018—A Ninth Circuit panel rules (in Richey v. Dahne) that a prison official is liable to a prisoner under the First Amendment for not processing a grievance that, even after the prison official’s initial objection, “included rude comments about [a] guard’s weight” and stated that “[i]t is no wonder why guards are slapped and strangled by some prisoners.”  

A year later, in dissenting from the Supreme Court’s denial of review, Justice Alito, joined by Justice Thomas and Justice Kavanaugh, will question the proposition that “a prison must accept grievances containing personal insults of guards” and will marvel at the proposition that the First Amendment “require[s] a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard.” The Ninth Circuit’s decision, they observe, appears to “def[y] both our precedents and common sense.” 

Law & the Courts

This Day in Liberal Judicial Activism—April 24

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2002—In Visciotti v. Woodford, a trio of liberal Ninth Circuit judges (opinion by Harry Pregerson, joined by A. Wallace Tashima and Marsha S. Berzon) rules that a California prisoner who was convicted of first-degree murder and sentenced to death received ineffective assistance of counsel during the penalty phase of his trial and is entitled to federal habeas relief. 

In November 2002, the Supreme Court, without any registered dissent, will summarily reverse the Ninth Circuit ruling and slam the panel’s reasoning. Contrary to the Ninth Circuit’s claim, the California supreme court “painstakingly describes the Strickland standard” for ineffective assistance of counsel. The Ninth Circuit’s “readiness to attribute error is inconsistent with the presumption that state courts know and follow the law” and “is also incompatible with [the federal habeas statute’s “highly deferential standard for evaluating state-court rulings.” Further: “All of the mitigating evidence, and all of counsel’s prejudicial actions, that the Ninth Circuit specifically referred to as having been left out of account or consideration were in fact described in the California Supreme Court’s lengthy and careful opinion.” 

Law & the Courts

This Day in Liberal Judicial Activism—April 23

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2020—In Gary B. v. Whitmer, a divided Sixth Circuit panel, in a majority opinion by Judge Eric L. Clay, holds that the Constitution “provides a fundamental right to a basic minimum education,” which it says means an education “that plausibly provides access to literacy.” Whatever that might mean. In dissent, Judge Eric E. Murphy objects that the majority’s ruling departs from settled doctrine. 

Plaintiffs and Michigan governor Gretchen Whitmer will race to settle the case before the en banc Sixth Circuit can override the panel decision. 

Law & the Courts

This Day in Liberal Judicial Activism—April 22

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2019A Third Circuit panel rules in Fulton v. City of Philadelphia that the city of Philadelphia lawfully refused to contract with a Catholic provider of foster-care services unless that provider agreed to certify same-sex couples as foster parents. Two years later, a unanimous Supreme Court will rule that the city’s refusal violated the provider’s Free Exercise rights under the First Amendment. 

Law & the Courts

Kagan’s Supposed ‘Dissent’ in Today’s Habeas Ruling

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Update (1 p.m.): On further consideration, and with the benefit of the insights of a reader, I think that I overstated things in my original post. It would have been better if Kagan had stated explicitly that, having disagreed with the majority on the question on which certiorari was granted, she would not disturb, and would thus affirm, the Sixth Circuit’s judgment. But I think that I was wrong to contend that Kagan had to revisit whether the Sixth Circuit properly applied Brecht. Rather than deleting my post entirely, I am striking through the flawed passages.

In its ruling today in Brown v. Davenport, the Supreme Court divided 6 to 3 on an arcane (but, I gather, important) issue of federal habeas law:

After a state court determines that an error at trial did not prejudice a criminal defendant, may a federal court grant habeas relief based solely on its independent assessment of the error’s prejudicial effect under Brecht v. Abrahamson, 507 U. S. 619 (1993)? Or must a federal court also evaluate the state court’s decision under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)?

Justice Gorsuch’s majority opinion answers “no” to the first question and “yes” to the second. Justice Kagan’s opinion, which is denominated a dissent, says “yes” to the first and “no” to the second.

The competing opinions will provide lots of fodder for habeas scholars. But I will instead confine my inquiry here to a technical question: Is it correct for Kagan to label her opinion a dissent? I think not.

No matter how vigorously a separate opinion disagrees with a majority opinion, it qualifies as a dissent (rather than a concurrence in the judgment) only if it disagrees with the majority opinion as to the judgment: in this case, whether to affirm or reverse (or vacate and remand) the Sixth Circuit’s judgment granting habeas relief.

Gorsuch’s majority opinion explicitly reverses the Sixth Circuit’s judgment. But unless I’m missing it (and perhaps I am), I don’t see where Kagan actually states that she would affirm the Sixth Circuit’s judgment.

In other words, even if Kagan believes that the Sixth Circuit majority was right to look only to Brecht, she would have to say that the Sixth Circuit properly applied Brecht in order to affirm the Sixth Circuit’s grant of habeas relief. But I don’t see where she does so. On the contrary, while she finds it useful to argue that Gorsuch’s opinion shows that the Court itself would reverse the Sixth Circuit on the basis of Brecht alone, I don’t see that she indicates that she would disagree with such a ruling. And given the fact that the Sixth Circuit’s application of Brecht would appear to be subject to de novo review, she can’t just implicitly defer to that application.

Kagan states in the introduction to her opinion that she “respectfully dissent[s] from [the Court’s] pointless demand” that courts “jump through AEDPA’s hoops as well” as satisfy Brecht. But that odd locution is clearly not a dissent from the Court’s actual judgment.

In short, for all the work that Kagan has done to express her disagreement with the majority on the legal question the case presents, I think that she stopped short of the additional work needed to determine whether her opinion should be a concurrence in the judgment or a dissent.

Law & the Courts

This Day in Liberal Judicial Activism—April 21

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1969—In his majority opinion in Shapiro v. Thompson, Justice Brennan rules that state and D.C. laws that deny welfare assistance to residents of less than a year violate a constitutional right to travel interstate. Brennan’s usual ally, Chief Justice Warren, dissents on the ground that Congress had authorized the one-year residency requirement. In a separate dissent, Justice Harlan objects that he “know[s] of nothing which entitles this Court to pick out particular human activities, characterize them as ‘fundamental,’ and give them added protection under an unusually stringent equal protection test.” More broadly, Harlan observes: 

“Today’s decision, it seems to me, reflects to an unusual degree the current notion that this Court possesses a peculiar wisdom all its own whose capacity to lead this Nation out of its present troubles is contained only by the limits of judicial ingenuity in contriving new constitutional principles to meet each problem as it arises.”

Law & the Courts

Judicial-Nominations Update

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The Senate, which recessed shortly after the confirmation of Judge Ketanji Brown Jackson to the Supreme Court on April 7, shall return next week. President Biden announced his intent to make five additional judicial nominations during the recess, including John Z. Lee for the Seventh Circuit and Salvador Mendoza for the Ninth Circuit. Including those nominees, who are expected to be submitted to the Senate soon after it reconvenes, below is a full update on the status of President Biden’s judicial nominations.

Current and known future vacancies: 110

Supreme Court: 0

Courts of Appeals: 19

District/Specialty Courts*: 91

Pending nominees for current and known future vacancies†: 29

Courts of Appeals: 7

District/Specialty Courts*: 22

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
J. Michelle Childs (DC) 1/10/22 100 N/A Not yet scheduled
Nancy G. Abudu (11th) 1/10/22 100 Yes Not yet scheduled
John Z. Lee (7th) N/A N/A N/A N/A
Salvador Mendoza, Jr. (9th) N/A N/A N/A N/A

Court of Appeals Nominees Awaiting Senate Judiciary Committee Votes 

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

Court of Appeals Nominees Awaiting Senate Floor Votes‡ 

Nominee (Circuit) Original Nomination Date Days Since Original Nomination Date Reported to Senate Floor
Andre Mathis (6th) 11/18/21 153 2/10/22
Stephanie Dawkins Davis (6th) 2/2/22 77 4/4/22

Nominees Awaiting Floor Votes: 10

Courts of Appeals: 2

District/Specialty Courts*: 8

All Nominees (via Judiciary Committee) Confirmed by the Senate during the 117th Congress: 61

Supreme Court: 1

Courts of Appeals: 15

District/Specialty Courts*: 45

All Nominees (via Judiciary Committee) Confirmed by the Senate since Inauguration Day61

Supreme Court: 1

Courts of Appeals: 15

District/Specialty Courts*: 45

All Article III Nominees Confirmed by the Senate since Inauguration Day: 59

Supreme Court: 1

Courts of Appeals: 15

District/International Trade Courts: 43

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

† Includes nominees who were announced during recess but not yet submitted to the Senate

 Note that Third Circuit nominee Arianna J. Freeman failed to report favorably on April 4, 2022

Law & the Courts

Slate’s Dirty Hit on Coach Kennedy in Supreme Court Case

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U.S. Supreme Court in Washington, D.C. (Joshua Roberts/Reuters)

On Monday, the Supreme Court will hear oral argument in Kennedy v. Bremerton School District, which presents the question whether a school district can punish a football coach for kneeling and saying a brief silent prayer on the fifty-yard line at the end of a game.

In an incendiary screed on Slate last week, Dahlia Lithwick and Mark Joseph Stern grossly misstate the facts of the case in support of their ridiculous contention that the case “was carefully engineered to return prayer to public schools” and “marks an effort to overturn nearly 60 years of precedent protecting schoolchildren from state-sponsored religion by flipping the First Amendment on its head.”

Let’s start with the actual facts, as set forth in the Ninth Circuit opinion that ruled in favor of the school district. All of the quotations in the next five paragraphs are from the “Factual and Procedural Background” of that opinion or, in two instances, from the “directive” that, as the Ninth Circuit states, the school district sent to the coach.

Joseph Kennedy was an assistant coach of the varsity football team as Bremerton High School and the head coach of the junior-varsity team. A practicing Christian, Coach Kennedy believed that at the end of each game he should “kneel at the 50-yard line and offer a brief, quiet prayer of thanksgiving for player safety, sportsmanship, and spirited competition.” His prayer “usually lasted about thirty seconds.”

Kennedy prayed alone when he first started working at Bremerton High School. But when some players asked whether they could join him, he replied, “This is a free country. You can do what you want.” Over time, the group of players joining him in prayer “grew to include the majority of the team.”

Kennedy then “began giving short motivational speeches at midfield after games,” and, as Kennedy later acknowledged, these speeches “likely constituted prayers.” The school district then advised Kennedy that his motivational speeches “must remain entirely secular in nature” and that any religious activity on his part while on duty “must be physically separate from any student activity, and students may not be allowed to join such activity.” In response, Kennedy “temporarily stopped praying on the field after football games.”

In a letter from his lawyer on October 14, 2015, Kennedy informed the school district that he “would resume praying on the fifty-yard line immediately after the conclusion of the October, 16, 2015 game” and that “he would allow students to join him in that religious activity if they wished to do so.” On October 16, “Once the final whistle blew, Kennedy knelt on the fifty-yard line, bowed his head, closed his eyes, ‘and prayed a brief, silent prayer.’”* “A photo of this scene . . . in the record . . . depicts approximately twenty players in uniform kneeling around Kennedy with their eyes closed, a large group of what appear to be adults standing outside the ring of praying players, and several television cameras photographing the scene.” (The players kneeling around Kennedy, it turns out, were evidently from the opposing team. The Ninth Circuit quotes, and does not dispute, Kennedy’s testimony on that point, and the school district’s complaint to Kennedy about his prayer on October 16 acknowledges that his team’s “traditional singing of the school fight song” was under way when Kennedy said his prayer.)

On October 23, the school district “sent Kennedy a letter explaining that his conduct at the October 16 game violated [the school district’s] policy.” That letter also directed Kennedy that “you may not engage in demonstrative religious activity, readily observable to (if not intended to be observed by) students and the attending public.” After games on October 23 and October 26, Kennedy “engaged in the same behavior in violation of [the school district’s] directive.” The school district then suspended him from his duties.

Now let’s look at how Lithwick and Stern mischaracterize things:

Joe Kennedy was a football coach in Washington state who led explicitly religious prayer circles with students at the 50-yard line after games. When the school district discovered this conduct in 2015, it repeatedly sought to accommodate his beliefs, asking him to pray in a less public location to avoid conveying the school’s endorsement of his beliefs. Kennedy refused, instead hiring lawyers at the far-right First Liberty Institute to threaten the school with a lawsuit.

He and his lawyers then launched a media blitz, falsely claiming that he had been persecuted for quiet, private prayer. School district officials were inundated with hateful threats from the public. His postgame prayer circles then became a spectacle, with media and spectators rushing onto the field to watch or join. At one game, students racing from the stands tripped over cables and knocked over members of the school band; parents later complained about the “stampede” threatening their children’s safety. In effect, Kennedy had hijacked the school’s football games to pray with team members in the most public manner conceivable. After he refused multiple offers of potential accommodations, the school placed him on paid administrative leave.

It is true that Coach Kennedy “led explicitly religious prayer circles with students,” via his motivational speeches, for some period of time until the school district advised him not to. But when Lithwick and Stern state that “Kennedy refused” the school district’s efforts at accommodation and that he continued his “postgame prayer circles,” they hide from their readers that Kennedy (presumably on the good advice of the First Liberty Institute) had abandoned those motivational speeches and had returned to praying “a brief, silent prayer” on his own, while not affirmatively barring others from kneeling around him. Their claim that he “hijacked the school’s football games to pray with team members in the most public manner conceivable” is absurd.

Lithwick and Stern also conveniently omit any mention of the school district’s policy. I don’t doubt that the “spectacle” they decry (and that the Ninth Circuit also describes) presented the school district a difficult challenge. But the constitutional question is whether it was permissible for the school district to respond to that challenge by directing Coach Kennedy that he “may not engage in demonstrable religious activity, readily observable to . . . students and the attending public.” The fact that Lithwick and Stern don’t mention the policy is quite a signal that even they can’t defend it (much less contend that Coach Kennedy “carefully engineered” its intrusion on his constitutional rights).

In its ruling more than five decades ago in Tinker v. Des Moines Independent School District (1969), the Court famously stated that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That, it said, had “been the unmistakable holding of this Court for almost 50 years” before 1969. It likewise is obviously true that neither students nor teachers — including coaches — shed those rights or their rights to religious liberty under the same First Amendment at a school’s football game.

So Lithwick and Stern are patently wrong to think that protecting Coach Kennedy’s constitutional rights would somehow “flip[] the First Amendment on its head” and “erase[] the rights of children who wish to avoid religious coercion at school.” If there are legitimate concerns that a teacher’s or coach’s constitutionally protected religious activity might subject students to religious coercion, there are surely ways for a school district to address those concerns without violating the Constitution.

* One confusing element in the Ninth Circuit’s presentation of facts is that it also states that “Kennedy’s counsel acknowledged in his October 14, 2015 letter that Kennedy’s prayers were ‘verbal’ and ‘audible,’ flatly contradicting Kennedy’s own recounting.” But a letter written on October 14 obviously couldn’t contradict a recounting of what happened two days later, so it would be strange to read this sentence as contradicting the Ninth Circuit’s own recitation of what Kennedy did on October 16. In any event, it is difficult to see how anything turns on whether Kennedy’s prayers were silent or audible.

Law & the Courts

This Day in Liberal Judicial Activism—April 20

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(Kuzma/iStock/Getty Images Plus)

1971—In what politics professor Shep Melnick callsone of the most confused and internally contradictory opinions ever issued by the Supreme Court,” Chief Justice Warren Burger’s unanimous decision in Swann v. Charlotte-Mecklenburg Board of Education will (in Melnick’s summary) lead “federal judges throughout the South to mandate extensive busing to create racially balanced schools” and “become the foundational opinion for those who believe that desegregation requires rather than prohibits the use of race in assigning students to particular schools.” 

2006—In Harper v. Poway Unified School District, a divided panel of the Ninth Circuit rules that the First Amendment permits schools to impose viewpoint-discriminatory restrictions on student speech. The case arose when Tyler Harper wore an anti-homosexuality T-shirt to his high school in response to the school’s sponsorship of a gay-rights event. The school ordered Harper not to wear the T-shirt. Judge Stephen Reinhardt’s majority opinion rules that schools may bar “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.” As Judge Alex Kozinski argues in his dissent, the school district “may have been justified in banning the subject [of homosexuality] altogether by denying both sides permission to express their views during the school day.” But having permitted the pro-gay speech, the school can’t be allowed to gag other viewpoints.  

Harper’s complaint will be rendered moot when he graduates from high school. In March 2007, the Supreme Court will grant Harper’s petition for certiorari and vacate (i.e., wipe from existence) the Ninth Circuit’s ruling.  

2021—In the course of denying an alien’s request for relief from a removal order, Sixth Circuit judge Martha Craig Daughtrey somehow sees fit to opine in her majority opinion (in Lopez-Soto v. Garland) that “a not-insignificant number of Americans believe that any change to our immigration statutes should result in shutting our borders to almost all individuals, or at least to all potential immigrants who are not blond-haired and blue-eyed.” In his opinion concurring in the judgment, Judge Amul Thapar nicely replies: 

“I have my doubts about the wisdom of courts opining on hot-button political issues or the motives of citizens who hold one position or another in those debates. And as someone who is neither blond-haired nor blue-eyed and who has benefited directly from the kindness of the American people, I believe that the American Dream is alive and well for persons of all stripes.” 

2021—In an astounding ruling (in LA Alliance for Human Rights v. City of Los Angeles), federal district judge David O. Carter seizes power as homelessness czar and orders the City of Los Angeles and the County of Los Angeles to take a broad set of actions to address the area’s homelessness crisis. Among other things, the City must place one billion dollars “in escrow”—i.e., under Carter’s supervision—and the City and the County must “offer and if accepted provide” housing to the “general population living in Skid Row” by mid-October 2021. 

In September 2021, a unanimous panel of Ninth Circuit judges, all of whom were appointed by President Obama, will vacate Carter’s order and criticize it as “largely based on unpled claims and theories.” Further, the plaintiffs “failed to put forth evidence to establish standing,” and Carter “impermissibly resorted to independent research and extra-record evidence.”  

Law & the Courts

Nancy Abudu, Another Concession to the Far Left and to One of Its Most Disreputable Organizations

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President Biden’s judicial gifts to dark-money groups do not end with Ketanji Brown Jackson or other far-left nominees he picked for lower courts. Eleventh Circuit nominee Nancy Abudu made her career in the dark-money realm since 2005, when she joined the American Civil Liberties Union. She worked for several years for the group’s Voting Rights Project, leaving just as another future Biden nominee—Dale Ho—became its director. From there, Abudu assumed the post of legal director of the ACLU of Florida.

In 2019, after over a decade with the ACLU, Abudu joined the Southern Poverty Law Center (SPLC), a once admirable group that in recent years has been mired in scandal and recognized as a racket that betrays its stated principles—not least by vilifying those it disagrees with as “hate groups.” A number of liberals have acknowledged this, with Nathan J. Robinson, founder of the left-wing Current Affairs, calling the group’s signature “Hate Map” an “outright fraud.”

Abudu is the group’s director for strategic litigation. A wide-ranging coalition of over 50 organizations and individuals protested her nomination in a letter to Senate Judiciary Committee Chairman Richard Durbin and Ranking Member Chuck Grassley. They stated bluntly: “Ms. Abudu works for a disreputable organization that has no business being a feeder for positions to any judicial office—not even of a traffic court—let alone the second highest court system in the United States. She is a political activist not a jurist and is unfit to serve at the federal appellate level.”

The Family Research Council (FRC) circulated the letter. They have good reason to have sounded the alarm. They know the real danger of being labeled a “hate group” by the SPLC. As their letter to Durbin and Grassley explains:

These destructive accusations have done real harm to many people. In the first conviction under the post-9/11 District of Columbia terrorism statute, the convicted terrorist was shown to have been motivated by the SPLC’s “hate group” designation and related identifying information.

In that case, SPLC materials facilitated a troubled young man’s delusional, and thankfully unsuccessful, plan to commit mass murder. Using the SPLC “hate map,” this native of northern Virginia targeted the Family Research Council (FRC) and two other nearby groups in August 2012 for having beliefs supporting traditional marriage. Fortunately, no one was killed, although he did shoot and critically wound FRC’s unarmed building manager who subdued him while wounded.

To make matters worse, the SPLC’s leadership—Abudu included—apparently haven’t learned their lesson. “[O]ver the past decade the SPLC has targeted an increasing number of policy groups with whom it has policy disagreements. Any group that disagrees with the SPLC about positions it advocates is deemed to be evil and worthy of destruction,” laments the coalition letter.

In addition to its inflammatory designations, the SPLC has amassed a war chest to fund its left-wing activism totaling $570 million as of October 2020. Its holdings are, to put it mildly, highly unusual for an American non-profit company. Among investments listed in its 2020 financial statements are $162 million in non-U.S. equity funds, $23 million in “arbitrage funds,” $89 million in private equity funds, and $7 million in long-short funds. The coalition letter observed, “The SPLC looks more like a hedge fund than a public interest legal and political activist group.”

Amy Sterling Casil, the CEO of the consulting firm Pacific Human Capital, remarked regarding its transfer of millions of dollars to foreign bank accounts that “I’ve never known a US-based nonprofit dealing in human rights or social services to have any foreign bank accounts.” She added, “I know of no legitimate reason for any US-based nonprofit to put money in overseas, unregulated bank accounts” and called the SPLC’s practice “unethical.” The watchdog group CharityWatch gave the SPLC a grade of “F.”

In addition to Abudu’s shady professional associations, she consistently has taken far-left positions in litigation. Perhaps the most prominent were cases Abudu argued while at the ACLU’s Voting Rights Center, for example, making unsuccessful challenges to felon voting provisions in MississippiArizona, and Tennessee. As legal director of the ACLU of Florida, Abudu unsuccessfully challenged the state’s requirement that a felon’s voting rights could be restored only after all fines, fees, and restitution imposed as part of the felon’s sentence had been paid. The Eleventh Circuit, sitting en banc, found no evidence to support Abudu’s claim of intentional racial discrimination. Undeterred, Abudu joined several other groups to submit Florida’s law to the United Nations Committee on Human Rights for review of human rights violations.

Since joining the SPLC, Abudu has maintained her ties with the ACLU of Florida and continued her losing track record in court with an unsuccessful Eighth Amendment claim against Florida’s Department of Corrections for not fully accommodating a transgender inmate’s “social-transitioning” requests.

The Biden administration and congressional Democrats continue to make scurrilous allegations of suppression of voting rights in Republican-led states, cherry-picking them over Democrat-led states with more stringent election rules and brazenly trying to weaponize the courts to do their partisan bidding. And Biden’s Department of Justice has specifically targeted Georgia, where Abudu would sit if confirmed, alleging the state’s recent election law violated the Voting Rights Act and engaged in racial discrimination. If you believe a Judge Abudu would fairly evaluate Georgia’s voting integrity laws according to the rule of law rather than her own agenda, I have a bridge to sell you.

Law & the Courts

This Day in Liberal Judicial Activism—April 19

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(Jonathan Drake/Reuters)

1972—Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.”  

Under Douglas’s rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Needless to say, Justice Douglas is unconcerned by the massive increase in judicial power that would result from his proposed obliteration of constitutionally rooted restrictions on standing. Concerns about “government by the Judiciary” are insignificant, he says, in light of the inadequacies of Congress (“too remote” and “too ponderous”) and the federal agencies (“notoriously under the control of powerful interests”) in addressing the problem.   

2016—Rarely if ever has a more brazen and aggressive bureaucratic misreading of federal law encountered a more craven and confused judicial reception. 

In G.G. v. Gloucester County School Board, a divided panel of the Fourth Circuit defers to the Obama administration’s radical claim that federal law requires any school that receives federal funding to make its single-sex restrooms, locker rooms, showers, housing, and sports teams available to “transgender students consistent with their gender identity.” Never mind that the Obama administration never actually interpreted the particular 1975 regulation in the manner that the panel majority imagined it owed deference to. Never mind that assigning facilities and programs on the basis of biological sex disregards—and thus clearly does not discriminate on the basis of—gender identity.  

In August the Supreme Court will block the Fourth Circuit’s ruling from taking effect, and in late October it will grant the school board’s certiorari petition. In March 2017—after the incoming Trump administration repudiates the Obama’s reading of federal law—the Court will vacate the Fourth Circuit’s ruling and remand the case for further consideration. But in 2020 the Fourth Circuit will again rule in the plaintiff’s favor, and after the Supreme Court denies review of that decision, the plaintiff will extract a lucrative settlement from the school district. 

Law & the Courts

OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 2

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There are also several important matters that the OLC opinion fails to address. Given the evident rush in which the opinion was issued, this is perhaps understandable. But the gaps present some troubling questions about how the OLC advice might operate in practice.

Numbering serially from my Part 1 post:

3. In observing (correctly, in my view) that the president may make “prospective nominations” for “anticipated vacancies on the Supreme Court,” OLC does not clarify the bounds of an anticipated vacancy, nor does it address whether the president may make prospective nominations for vacancies that fall outside the bounds of what is “anticipated.”

In its 1968 opinion, OLC stated:

It should be noted that anticipated vacancies [for judicial or executive-branch positions] may be grouped into two categories: First, those that will take effect on a day certain; e.g., when a resignation is submitted as of a specific date, or a statutory term is about to expire. Second, those that will take effect upon fulfillment of a condition; e.g., when the removal or elevation of the incumbent takes effect, or the appointment and qualification of his successor. Nothing in the Constitution prevents advance nomination and confirmation to fill either category of anticipated vacancies.

This statement might well be read to imply that the Constitution prevents “advance nomination” for a future vacancy that falls outside of these two categories. But, alternatively, it might simply be that the settled practice of a president’s making advance nominations only for these two categories of anticipated vacancies reflects a sensible accommodation of the institutional interests of the president and the Senate—an accommodation that a president and a compliant Senate might choose to depart from.

4. In advising that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office,” OLC does not explicitly state that prospective appointments are not permissible for vacancies that are anticipated to occur after the president’s current term of office. Is that in fact OLC’s position? And, if so, what are the constraints on anticipating a vacancy?

These questions interact in important ways with the question whether a president may make an advance nomination to a vacancy that falls outside the two categories of anticipated vacancies in item 3. Might a president, for example, assess that a particular justice seems to be in poor health, nominate a successor to that justice’s position, and, upon the Senate’s confirmation of that nomination, prospectively appoint the successor?

5. What happens if the president makes a prospective appointment to a vacancy but the vacancy does not actually occur during the president’s current term of office? Assume, for example, that Justice Breyer changes his mind and decides not to retire. Does Breyer’s prospective appointment of Jackson to the Breyer vacancy expire on January 20, 2025? Or does it remain potent, ready to spring into full operation whenever Breyer does vacate his seat?

On the one hand, the OLC opinion’s core conclusion that Biden, by making a prospective appointment of Jackson, would complete his role in the appointment process makes it puzzling to think that his appointment would somehow expire when his term ends. If that were the case, the Supreme Court could have dismissed Marbury v. Madison on the ground that Marbury’s failure to accept President Adams’s appointment while Adams was still president meant that the appointment expired when Thomas Jefferson took office. I am not aware of any precedent that an unaccepted appointment expires when the appointing president’s term expires.

On the other hand, the OLC opinion embraces the proposition that the president “could not ‘forestall the rights and prerogatives of [his] own successors by appointing successors to offices expiring after [his] power to appoint has itself expired.’” So this proposition would seem to mean that Biden’s prospective appointment of Jackson would expire on January 20, 2025 (at least if Biden is not elected to a second term). Or does it mean that Biden would “forestall the rights and prerogatives” only if he made a prospective appointment to a vacancy that he did not anticipate would occur during his term?

Depending on how this and the preceding questions are answered, a president might be able to make a batch of nominations to, say, the next ten or twenty associate-justice vacancies that will occur, have a compliant Senate confirm those nominations, and then make prospective appointments that will spring into operation over a course of many years, with the appointed individuals filling new vacancies as associated justices whenever such vacancies arise.

6. If the OLC opinion is correct and Biden could make a prospective appointment of Jackson, how must such an appointment be worded?

As I have noted, when the president uses the conventional language of the judicial commission, he states that he thereby “authorize[s] and empower[]” the appointed judge “to execute and fulfil the duties” of the judicial office. Without some amendment, such language in a commission making a prospective appointment would seem to be lie and thus a nullity.

According to the 1968 OLC opinion, President Grant’s commission of Edwin M. Stanton on December 20, 1869, specified that it would “take effect on or after February 1 [1870],” the date on which Justice Grier’s resignation would take effect, and President Harding’s commission on September 5, 1922, of George Sutherland to replace Justice Clarke likewise stated “commencing September 18, 1922,” the date on which Clarke’s resignation would take effect.

What does the commission that Biden has apparently issued Jackson actually say? And if it doesn’t similarly specify that it takes effect only upon Breyer’s retirement (or on a specific date that ends up being after Breyer’s retirement), is it nonetheless somehow valid?

*  *  *

As I have previously explained, it appears that Biden resorted to a prospective appointment of Jackson in order to try to foreclose the farfetched possibility that the Senate might somehow adopt a motion to reconsider its confirmation of Jackson. When Breyer does retire, Biden should issue Jackson a second commission in order to eliminate any question over the legitimacy of her appointment as an associate justice.

Law & the Courts

OLC Opinion on Prospective Appointment of KBJ Is Deeply Defective—Part 1

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Judge Ketanji Brown Jackson attends her confirmation hearing on Capitol Hill in Washington, D.C., March 22, 2022. (Elizabeth Frantz/Reuters)

On further review, the Office of Legal Counsel’s opinion on President Biden’s purported authority to “prospectively appoint” Judge Ketanji Brown Jackson to the Supreme Court is much worse than I first thought.

In a post on Friday evening, I offered some initial doubts about the soundness of OLC’s advice that Biden could, in the immediate aftermath of the Senate’s confirmation of Jackson’s nomination, complete his role in the appointment process by issuing a commission to Jackson that would take effect when Justice Breyer retires. In this post and a follow-on, I will expand my critique of the OLC opinion. (I won’t reiterate here my argument that the OLC opinion contradicts a passage in Marbury v. Madison, and I instead refer interested readers to point 2 of that previous post.)

To be clear, while I am very skeptical of OLC’s bottom line, I am not contending here that it is clearly wrong. I am instead maintaining that the reasoning in the OLC opinion is deeply defective and unpersuasive.

1. The OLC opinion prominently asserts:

Our Office has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office. See Memorandum for Harlington Wood, Jr., Associate Deputy Attorney General, from William H. Rehnquist, Assistant Attorney General, Office of Legal Counsel, Re: Delay in Induction of Judge into Office Following His Confirmation by the Senate (Nov. 27, 1970) (“Rehnquist Memorandum”).

To my surprise, it turns out that that assertion is blatantly wrong.

The Rehnquist Memorandum that OLC cites was made public on Friday evening. As its title indicates, it addresses whether two United States Attorneys who had been “recently confirmed by the Senate to be district judges” could have “their ascension to the bench … delayed” so that they could complete their “work[] on important criminal prosecutions.” President Nixon had issued a judicial commission to one of the two confirmed nominees but not to the other. Both nominations involved newly created seats, not seats still occupied by an incumbent.

The Rehnquist Memorandum not only does not advise on the matter of prospective appointments. It does not even offer a word in passing on the matter. So I do not see how OLC can defend citing the Rehnquist Memorandum (and only the Rehnquist Memorandum) as support for the proposition that OLC “has taken the position that prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” (I also don’t see how anything in the Rehnquist Memorandum provides even implicit support for that position.)

A cynic might suspect that OLC is trying to hide behind Rehnquist’s conservative bona fides to deflect scrutiny of its position.

2. The OLC opinion also asserts:

The Office [OLC] has previously noted that historical practice supports the President’s authority to make prospective appointments of judicial officers, including an Associate Justice of the Supreme Court.

This assertion is also false. The opinion cites two previous opinions in support of this assertion. Let’s start with the second one, the Rehnquist Memorandum. Again, there is not a sentence in the Rehnquist Memorandum that “noted that historical practice supports the President’s authority to make prospective appointments of judicial officers” or that even had anything remotely to do with the matter. The new opinion claims that the Rehnquist Memorandum “discussed” one instance of such an appointment, but as its own account reveals, the instance instead involved “a judicial officer [who] ha[d] been appointed many months before taking the oath and entering on the duties of the office.” In other words, rather than involving a prospective appointment, it involved an ordinary immediate act of appointment by the president and the confirmed nominee’s delay in accepting the appointment.

The other previous OLC opinion that the new opinion cites is a 1968 opinion on the power of President Johnson to nominate Abe Fortas to be chief justice (which is available as an attachment, pp. 154-169, to a 1979 opinion). Here too, the subject matter of the opinion has nothing to do with prospective appointments. It instead concerns the president’s power to make a nomination to a seat that is not yet vacant. It therefore bears instead on the (to my mind, uncontroversial) point that Biden had the power to nominate Jackson to Breyer’s seat.

OLC states that the 1968 opinion “provided several examples of judges who were appointed by the President prior to the effective date of the outgoing official’s resignation.” That statement is correct, as several can mean three. And those examples do appear to provide support for the proposition that presidents have made prospective appointments before, including to the position of associate justice.

But I do not think that it is correct to contend that the 1968 opinion “noted that historical practice supports the President’s authority to make prospective appointments.” Rather, the 1968 opinion compiled the data on these and other judicial appointments and lumped them all together as examples of nominations “in advance of the effective date of the resignation or retirement of the incumbent.” The 1968 opinion seems to take no particular note of, and certainly does not offer any comment on the issues raised by, the three instances that also happen to involve prospective appointments.

It’s also worth noting that each of those three instances involved the incumbent’s commitment to retire upon a specific date (that’s true of both of the associate-justice instances) or condition. By contrast, Breyer stated in January only that he “intend[ed]” his retirement decision to take effect at the end of the Court’s term, and he hedged even that mere statement of intention on the “assum[ption] that by then my successor has been nominated and confirmed.”

And of course there is the broader question whether previous actions by presidents provide meaningful evidence that a practice is constitutionally permissible or show instead that presidents sometimes acted unconstitutionally.

(I will note that the OLC opinion also cites a 1960 OLC opinion that apparently deals with “prospective appointments” to some fixed-term executive-branch offices. That opinion does not appear to be publicly available, and if it in fact provides meaningful support for the new OLC opinion, it would be odd that the new OLC opinion so badly misuses the Rehnquist Memorandum and the 1968 opinion.)

Law & the Courts

This Day in Liberal Judicial Activism—April 18

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1990—Dissenting in Osborne v. Ohio, Justices Brennan, Marshall, and Stevens opine that possession of child pornography is protected by the First Amendment. Though unmoored from any plausible meaning of the First Amendment, their position is a logical extension of Justice Marshall’s activist ruling in Stanley v. Georgia (see This Day for April 7, 1969). And faithless as they are to the actual Constitution and to precedents with which they disagree, liberal judicial activists vigorously apply activist precedents. 

1990—At the same time that it unanimously holds that a federal district judge, in implementing a desegregation plan, lacked the authority to directly impose an increase in the property-tax levy in a school district, the Supreme Court decides, by a 5-to-4 vote (in Missouri v. Jenkins), that the judge may direct the school district to increase the property tax and may enjoin the operation of any contrary state laws. 

Writing in dissent (and joined by Chief Justice Rehnquist and Justices O’Connor and Scalia), Justice Anthony Kennedy disputes the “purported distinction between direct imposition of a tax by the federal court and an order commanding the school district to impose the tax,” and he condemns the majority holding:  

“Today’s casual embrace of taxation imposed by the unelected, life-tenured Federal Judiciary disregards fundamental precepts for the democratic control of public institutions.”

2007—Dissenting from the Supreme Court’s rejection (in Gonzales v. Carhart) of a facial challenge to the constitutionality of the federal Partial-Birth Abortion Act of 2003, Justice Ruth Bader Ginsburg predicts that as-applied challenges to the law “will be mounted swiftly, to ward off serious, sometimes irremediable harm, to women whose health would be endangered by the intact D&E prohibition.” In fact, years later, not a single such challenge will have been brought. Why not? Probably because (as I explored in “The Mystery of the Missing Lawsuits”) the abortion industry’s medical evidence that Ginsburg was so eager to credit has always been very feeble.  

2018—A Sixth Circuit panel rules (in Planned Parenthood v. Himes) that an Ohio law that bars the state department of health from funding organizations that perform or promote nontherapeutic abortions violates a Planned Parenthood affiliate’s constitutional rights.  

In March 2019, the en banc Sixth Circuit, by a vote of 11 to 6, will repudiate the panel’s reasoning.  

Law & the Courts

This Day in Liberal Judicial Activism—April 17

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2009Canon 2 of the Code of Conduct for United States Judges provides that a judge “should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” But then-Second Circuit judge Sonia Sotomayor evidently doesn’t see that canon as a barrier to partisan public cheerleading for Barack Obama. In a speech to the Black, Latino, Asian Pacific American Law Alumni Association—two weeks before news of Justice Souter’s decision to resign from the Court becomes public—Sotomayor makes a number of surprisingly partisan pro-Obama comments:  

“The power of working together was, this past November, resoundingly proven.”  

“The wide coalition of groups that joined forces to elect America’s first Afro-American President was awe inspiring in both the passion the members of the coalition exhibited in their efforts and the discipline they showed in the execution of their goals.”  

“On November 4, we saw past our ethnic, religious and gender differences.”  

“What is our challenge today: Our challenge as lawyers and court related professionals and staff, as citizens of the world is to keep the spirit of the common joy we shared on November 4 alive in our everyday existence.”  

“It is the message of service that President Obama is trying to trumpet and it is a clarion call we are obligated to heed.” 

 Weeks later, President Obama will nominate Sotomayor to fill Souter’s seat. 

Law & the Courts

This Day in Liberal Judicial Activism—April 16

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(Matt Anderson/Getty Images)

2008Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment.  

In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.” 

2010—As part of an impressive early bid to displace Rosemary Barkett as the wackiest judge on the Eleventh Circuit, new Obama appointee Beverly B. Martin votes in dissent (in United States v. Lee) to overturn Van Buren Lee’s conviction for attempting to entice a child to engage in illicit sexual activity. Martin argues that there was insufficient evidence to support the jury finding that Lee had taken a “substantial step” towards committing enticement, as he “never bought a plane, bus or train ticket” to travel to California (where he believed the targets of his actions to live) and “never set a date for a visit.”  

Travel logistics aside, the majority spells out in painful detail that Lee and “Candi Kane”—the postal inspector posing as the mother of two girls, ages seven and twelve— “repeatedly discussed whether, how, and when Candi would grant Lee sexual access to her daughters, and Lee produced and sent Candi and her daughters sexually explicit images of him.” 

2020—In a case challenging the Connecticut Interscholastic Athletic Conference’s policy of allowing biological males who identify as females to compete against girls, federal district judge Robert Chatigny chastises the girls’ attorneys for referring to the male athletes as “males.” 

Law & the Courts

No, Not An End to KBJ Appointment Follies

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Judge Ketanji Brown Jackson listens to questions during her confirmation hearing on Capitol Hill in Washington, D.C., March 22, 2022. (Elizabeth Frantz/Reuters)

The Office of Legal Counsel in the Justice Department made public today an opinion dated April 6, 2022—the day before the Senate’s confirmation of Judge Ketanji Brown Jackson’s nomination to replace Justice Breyer—that advises President Biden that he may, upon her confirmation, “prospectively appoint” her as an associate justice, “even though the actual vacancy in the office of Associate Justice is not expected to occur until the Court rises for the summer recess this year.”

I offer some initial thoughts on (1) what the OLC opinion says and means, (2) whether it is sound, (3) what Biden has in fact done, and (4) why Biden would have any interest in prospectively appointing Jackson.

(1) What does the OLC opinion say and mean?

Let me make clear at the outset that OLC has not opined that a prospective appointment of Jackson by Biden would make her an associate justice before Breyer retires from (or otherwise vacates) his office. On the contrary, OLC is speaking only to how a president might complete his role in the appointment process. What OLC is saying is that the president may complete that role by making a “prospective appointment”—an appointment, as I understand it, that does not take effect, in the essential sense of enabling the appointed person to occupy the office, until some future date or event (in Jackson’s case, a vacancy arising in Breyer’s seat).

OLC specifically states:

The completion of the appointment, however, does not mean that Judge Jackson assumes the office of Associate Justice. Rather, her entry on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective.

I find the word “assumes” in the first sentence to be vague. In the context of the opinion, I understand the first sentence to mean: “The completion of the [president’s act of] appointment, however, would not mean that Judge Jackson is then entitled to the office of Associate Justice.”

OLC also limits its advice on prospective-appointment authority by reciting its previously articulated position that “prospective appointments are permissible for vacancies anticipated to occur during the appointing official’s own term of office.” It does not actually say that prospective appointments would be impermissible for vacancies that are not anticipated to occur during the appointing official’s own term of office, but that would seem to be the clear implication of its analysis.

OLC also does not address the question of what a commission must say in order to constitute a prospective appointment. As I have pointed out, the standard language for a judicial commission purports to confer immediate authority. So it would seem odd to use the same language for a prospective appointment.

(2) Is the OLC opinion sound?

As a former principal deputy in (and at times acting head of) OLC, I will attest to the widely recognized reality that OLC has a strong institutional bias in favor of presidential power.

That said, I hadn’t recalled the opinion by then-Assistant Attorney General William H. Rehnquist that the new OLC opinion invokes as precedent. Nor had I been aware of the three previous instances of prospective appointments of justices and judges (in 1869, 1922, and 1962) that the OLC opinion cites (pp. 4-5). These seem weighty. But I haven’t been able to locate the Rehnquist opinion and thus haven’t reviewed it, and OLC says in its opinion that it has not had the time needed to be “able to verify the accuracy of all the dates” for those instances. [Update: The now-public Rehnquist memo has nothing to do with the matter of prospective appointments. It is very strange that the new OLC opinion prominently miscites it as OLC precedent on the matter.]

More broadly, I wonder whether the OLC position contradicts Marbury v. Madison (1803). In that landmark opinion, Chief Justice Marshall states that once the president has made the appointment, “[t]he right to the office is then in the person appointed.” (Emphasis in original.) By OLC’s account, a prospective appointment by Biden would not confer on Jackson an immediate “right to the office.” Rather, her right to future “entry on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective.”

It’s possible, to be sure, that Marshall in Marbury could be said to have just been addressing the ordinary case in which a president appoints a judge to an existing vacancy. It’s also possible that he was wrong. But OLC’s failure to address the point leaves the question unresolved.

(3) What has Biden done?

We don’t know for certain whether Biden has issued a commission to Jackson. The Federal Judicial Center’s confused account of Jackson’s status would suggest that the Department of Justice’s Office of Legal Policy informed it that Biden issued a commission to her on April 8.

If Biden did issue a commission, we don’t know what it says. We don’t know in particular whether it purports to confer immediate authority on Jackson (in which case it might well be a nullity even if OLC’s advice about his ability to make a prospective appointment is correct).

It would be good for the White House to make a copy of the commission public.

(4) Why would Biden prospectively appoint Jackson?

Why Biden would have any interest in prospectively appointing Jackson, rather than in issuing her a commission once Breyer retires, is puzzling. What is gained by doing so? Why create a situation that would cast aspersions on the validity of her appointment?

It would seem an easy matter to coordinate with Breyer so that Biden’s issuance of the commission occurred immediately after Breyer’s retirement. It is in any event unlikely that any important matter at the Court would be decided in the short interval between his retirement and Jackson’s filling his seat.

The OLC opinion oddly asserts that a prospective appointment would “bring[] to an end the President’s and the Senate’s role in the process” and “would render the Senate’s consent final.” But was the White House really concerned that the Senate might have any “role in the process” after it confirmed Jackson’s nomination or that the Senate’s consent didn’t then become “final”? I don’t understand the basis for any such concerns. I don’t understand the basis for any such concerns. [Update (7:30 p.m.): The Rehnquist memo has just been made public, and it discusses the concern that that a motion for reconsideration in the Senate might lead to the rejection of a previously confirmed nomination. It further states: “It is well-established that the Senate loses its power to reconsider a nomination, if the President issues a commission to the appointee before the Senate acts on the motion.” So I now believe that Biden issued a commission to Jackson on April 8 in order to prevent any possibility of a successful motion for reconsideration, including in the event that Republicans regained control of the Senate any time before Breyer’s retirement.]

Law & the Courts

An End to KBJ Appointment Follies?

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I’m pleased to take note that the Federal Judicial Center’s bio page for Judge Ketanji Brown Jackson no longer mistakenly identifies her as already being an “Associate Justice, Supreme Court of the United States” and no longer states that she “received commission on April 8, 2022.” (In case the bio page changes yet again before Justice Breyer retires, here’s a preserved image of how it now reads.)

I hope that this means that President Biden hasn’t actually purported to issue her a commission. As I’ve explained, any such commission would be a nullity, as Biden needs to wait until the seat to which Jackson has been nominated—Breyer’s seat—is vacant before he can appoint Jackson to it. (And even if a commission before then were somehow possible on some sort of theory of a delayed effective date, Jackson obviously couldn’t become an associate justice in place of Breyer while Breyer continues to occupy his position.)

Law & the Courts

More on KBJ Appointment Follies

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Here is what I understand would be the conventional language of the commission by which President Biden would appoint Judge Ketanji Brown Jackson as a Supreme Court justice when Justice Breyer vacates his seat:

Know Ye That reposing special trust and confidence in the Wisdom, Uprightness, and Learning of Ketanji Brown Jackson, of the District of Columbia, I have nominated and, by and with the advice and consent of the Senate, do appoint her an Associate Justice of the Supreme Court of the United States and do authorize and empower her to execute and fulfil the duties of that Office according to the Constitution and laws of the said United States and to Have and to Hold the said Office, with all the powers, privileges, and emoluments to the same of right appertaining, unto her the said Ketanji Brown Jackson during her good behavior. [Underlining added.]

If Biden has actually purported to issue a commission to Jackson that contains this language, he is making a mockery of its solemn language. For until such time as Breyer vacates his seat, Biden has no power to “authorize and empower [Jackson] to execute and fulfil the duties” of the office of associate justice or to confer “all the powers, privileges, and emoluments” that come with it. His commission would therefore be a nullity.

If Biden has purported to issue a commission to Jackson with substantially different language, I’d be eager to see it. (It would also be a nullity.)

I continue to hold out hope that this White House has not been so incompetent as to allow Biden to issue a commission to Jackson before Breyer vacates his seat.

I’ll note further that the Supreme Court, unlike the badly confused Federal Judicial Center, does not list Jackson among its current members.

Law & the Courts

KBJ Appointment Follies

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Judge Ketanji Brown Jackson holds her notes at the end of her testimony on the third day of Senate Judiciary Committee confirmation hearings on her nomination to the Supreme Court on Capitol Hill in Washington, D.C., March 23, 2022. (Elizabeth Frantz/Reuters)

As I spelled out yesterday, President Biden nominated Judge Ketanji Brown Jackson “to be an Associate Justice of the Supreme Court of the United States, vice Stephen G. Breyer, retiring.” The term vice means “in place of.” The Senate acted on, and confirmed, that nomination. Therefore, Biden may appoint Jackson to Breyer’s seat once that seat is vacant—which according to Breyer’s stated plans will be at the end of the Court’s term in late June or early July. Any purported act of appointment made before the seat is vacant would be null.

So I was very surprised to discover yesterday that the Federal Judicial Center’s bio page for Judge Ketanji Brown Jackson identified her as “Associate Justice, Supreme Court of the United States” and stated that she “received commission on April 8, 2022” (the day after her Senate confirmation). How, I wondered, could the Federal Judicial Center, “the education and research agency for the federal courts,” mess up something so simple?

Things got even worse when the Federal Judicial Center added this explanatory note yesterday evening:

Judge Jackson has been appointed to the Supreme Court of the United States as an Associate Justice but will not begin to exercise the duties of the office until the seat to which she has been appointed is vacant.

The FJC apparently believes that both Jackson and Breyer are now associate justices, despite the fact that Jackson was nominated to replace Breyer. It also apparently believes that the Court now has nine associate justices, as well as the Chief Justice, in violation of 28 U.S.C. § 1 (“The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices….”) At the same time, it continues to list Jackson as a D.C. Circuit judge.

It’s no answer to say, as the FJC does, that Jackson “will not begin to exercise the duties of the office until the seat to which she has been appointed is vacant.” She can’t be appointed to that seat until it is vacant. (And if she already occupies it, then it won’t become vacant until she resigns—which just illustrates the absurdity of the FJC’s gobbledygook.)

I had assumed that someone at the FJC somehow confused the White House ceremony for Jackson on April 8 with an actual commissioning. But it turns out that it might be even worse than that. I’m reliably informed that the FJC says that its misinformation on Jackson reflects what the Department of Justice’s Office of Legal Policy is telling it.

Set aside why an agency of the judicial branch would mindlessly regurgitate what someone in the executive branch tells it. Is it really the case that DOJ’s Office of Legal Policy has told the FJC that Jackson has received her commission? Does that mean that Biden has actually purported to execute a commission for Jackson—a commission that would be a nullity? Absent further evidence, I refuse to accept that the White House has been so incompetent on such an elementary matter.

Law & the Courts

This Day in Liberal Judicial Activism—April 14

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1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.

1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”   

2021—Fringe Democrats in the House and Senate announce their proposed bill to pack the Supreme Court by increasing the number of justices from nine to thirteen.  

Law & the Courts

Judge Jeffrey Sutton Against Universal Injunctions

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In a ruling yesterday in Arizona v. Biden, Sixth Circuit chief judge Jeffrey Sutton penned a unanimous opinion that granted a stay of a district court’s nationwide preliminary injunction that would have barred the Department of Homeland Security from implementing enforcement priorities and policies that the HHS Secretary set forth in a memorandum. Sutton also issued a concurring opinion that expressed his “considerable skepticism” about so-called “nationwide” or “universal” injunctions. Some excerpts (citations omitted):

I do not take issue with the court’s decision to extend the remedy beyond the Southern District of Ohio as to the three state claimants. When “exercising its equity powers,” a district court “may command persons properly before it to cease or perform acts outside its territorial jurisdiction.” But it is one thing to honor a federal court judgment issued in favor of, say, Arizona by the Southern District of Ohio anywhere in the country. It is quite another to do so for the 47 States that did not participate in the lawsuit….

A valid Article III remedy “operate[s] with respect to specific parties,” not with respect to a law “in the abstract.” That is why courts generally grant relief in a party-specific and injury-focused manner. In this same way, we do not remove—“erase”—from legislative codes unconstitutional provisions. Jonathan Mitchell, The Writ–of–Erasure Fallacy, 104 Va. L. Rev. 933, 1016–17 (2018). We merely refuse to enforce them in a case, thereby exercising “the negative power to disregard an unconstitutional enactment.” After a court has remedied a claimant’s injury, it is fair to ask what controversy remains for a court to adjudicate or remedy.

Call them what you will—nationwide injunctions or universal remedies—they seem to take the judicial power beyond its traditionally understood uses, permitting district courts to order the government to act or refrain from acting toward nonparties in the case. The law already has a mechanism for applying a judgment to third parties. That is the role of class actions, and Civil Rule 23 carefully lays out the procedures for permitting a district court to bind nonparties to an action. Nationwide injunctions sometimes give States victories they did not earn and sometimes give States victories they do not want. They always sidestep Rule 23’s requirements.

Such injunctions create practical problems too. The effect of them is to prevent the National Government from enforcing a rule or executive order without (potentially) having to prevail in all 94 district courts and all 12 regional courts of appeals. They incentivize forum shopping. They short-circuit the decisionmaking benefits of having different courts weigh in on vexing questions of law and allowing the best ideas to percolate to the top. They lead to rushes to judgment. And all of this loads more and more carriage on the emergency dockets of the federal courts, a necessary feature of any hierarchical court system but one designed for occasional, not incessant, demands for relief.

Law & the Courts

Philip Hamburger on Parental Free Speech in Education

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In a very interesting new paper titled “Education Is Speech: Parental Free Speech in Education,” law professor Philip Hamburger argues that recognition of education as speech has significant consequences for the speech rights of parents in the education of their minor children. From his introduction:

This Article makes two doctrinal arguments about speech.

One argument involves direct constraint. States simultaneously require parents to educate their minor children and offer state education free of charge. The combination means that states are forcing parents to choose between state education at no additional cost and their own choice of education at their own expense.

Being forced to educate their children, parents are not acting entirely voluntarily when they pay considerable sums to educate their children outside state schools. The combination of mandatory education and tuition-free state education is a direct constraint, compelling them to submit their children to government educational speech or pay to avoid it. For all but the most affluent, there is not even the opportunity to pay to opt out. Of course, the requirement that parents must educate their children is not formally a requirement that they subject their children to government educational speech. But there is little doubt about the reality for most Americans when compulsory education is accompanied with the offer of tuition-free state education.

A second argument, concerning an unconstitutional condition, has a clearer foundation in Supreme Court doctrine. Public education is a government benefit, and so cannot come with a condition that abridges the freedom of speech. All the same, states offer this subsidy on the condition that parents accept government educational speech in place of their own. In other words, parents are being pressured in a way that abridges their own educational speech and compels them to adopt the government’s.

The condition argument here can be summed up in terms of Brown v. Board of Education. The court in Brown held that public education was a government opportunity or benefit that could not be offered in violation of the Fourteenth Amendment—to which this Article merely adds: nor in violation of the First. This most central of cases thus reveals the doctrinal force of the speech condition argument. At the same time, it will be seen that both of the speech arguments give life to Brown’s unfulfilled promise of equality.

Hamburger’s analysis might well provide the foundation for an enterprising state attorney general to issue an opinion that the current funding system in the state for state schools is an unconstitutional condition on the freedom of educational speech. Such an opinion might well force the state legislature to open up funding to all parents or adopt some other remedy.

Law & the Courts

Can Biden Appoint KBJ to a Seat Other than Breyer’s? No

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Now that Judge Ketanji Brown Jackson’s nomination to the Supreme Court has been confirmed, the question whether Justice Breyer has actually announced a decision to retire is only of academic interest. Perhaps the only respect in which it theoretically matters at this point is that if Breyer has not made such an announcement, then it’s clear that he could reverse his mere stated intention. (Whether he could retract an actual announcement is arguably more complicated.)

But the theoretical question whether Breyer could decide not to retire has sparked some discussion of what would happen to Judge Jackson’s nomination in that event. I think that the answer is clear: Jackson having been confirmed to replace Breyer, President Biden (or any subsequent president) could appoint her to replace Breyer when Breyer does vacate the seat.

But a law professor or two on Twitter have contended (even if tentatively) that Biden could appoint Jackson to any other vacancy that arises in a seat of an associate justice. The argument, as I understand it, is that because each of the associate justices occupies the same statutory office, the Senate’s confirmation of Jackson to be an associate justice enables Biden to appoint her to any associate-justice seat.

Let me briefly explain why I believe this argument is clearly wrong:

1. Biden specifically nominated Jackson to fill Breyer’s seat: “I nominate Ketanji Brown Jackson, of the District of Columbia, to be an Associate Justice of the Supreme Court of the United States, vice Stephen G. Breyer, retiring.” (The term vice means “in place of.”) The Senate acted on, and confirmed, that nomination. That is therefore the only appointment that Biden could make of Jackson (without, that is, going through the whole nomination and confirmation process again).

2. It’s no accident that the president and the Senate have worked out a practice in which the president typically makes vice judicial nominations. That practice strikes an important balance of power between the president and the Senate.

To illustrate the point: Federal appellate judgeships are the same statutory office in the same way that associate-justice positions are. Or, if you’re disposed to dispute that point, federal appellate judgeships on the same court of appeals surely are.

If a vice nomination did not specify the seat to which a president could appoint a confirmed nominee, a president could nominate someone to a judgeship on, say, the Tenth Circuit and then, after Senate confirmation, appoint that same person to a judgeship on the D.C. Circuit. Or a president could nominate someone to replace a Ninth Circuit judge in Oregon and then, after Senate confirmation, appoint that same person to replace a Ninth Circuit judge in California.

3. To be clear: I am not contending here that the Constitution itself would bar the president from making a generic nomination to an associate-justice position or to a federal appellate judgeship. I am arguing, rather, that (a) the Constitution allows the president and the Senate to adopt a practice in which the president nominates someone only for a specific position and the Senate confirms that nomination only for that specific position, and (b) vice nominations embody that practice.

I will add that I have consulted with several people who are very experienced in the appointment process, some of whom have a strong disposition in favor of executive authority, and all agree with me on this matter. If there is anyone experienced in the appointment process who takes a different view, I’ve missed it.

The issue, I’ll note, would be of particular salience if, say, a vacancy were to arise before the Court’s argument session later this month. (There is no reason that I am aware of that anyone would anticipate such a vacancy.)

Law & the Courts

Has Justice Breyer Announced a Decision to Retire?

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The question of how exactly a Supreme Court justice or lower-court judge puts into effect a decision to retire is a surprisingly complicated one, and all the more so when the date of the retirement is at some point in the future. There is no federal statute that addresses the matter. For justices, the traditional practice, as I understand it, has been to send a letter to the president setting forth a decision to retire. But I don’t believe that lower-court judges have generally taken that approach. So while a letter to the president might well be sufficient, there is no reason to think that it is necessary. And why would it be, given that the justice is not the president’s subordinate?

In this post, I will address the question whether Justice Breyer has actually announced a decision to retire at a designated time. Specifically, will Breyer’s January 27 letter to President Biden suffice to effect Breyer’s retirement “when the Court rises for the summer recess this year”? Or will Breyer need to take some further action?

Two clarifications at the outset: (1) I am not addressing the distinct question whether Breyer could retract an announced decision to retire at a date, or upon an occurrence, in the future. I am addressing only whether he has in fact announced such a decision. (2) This is a purely academic inquiry. By engaging in it, I do not mean to suggest that there is any prospect at all that Breyer won’t in fact retire at the end of the Court’s term.

Let’s focus on the two key sentences in Breyer’s letter:

I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court of the United States, and to serve under the provisions of 28 U. S. C. § 371(b). I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.

In his first sentence, Breyer straightforwardly announces a decision to retire, but he doesn’t set forth the critical ingredient of when. In his second sentence, Breyer, I would argue, doesn’t in fact specify a time on which his decision will take effect. Rather, he merely states what he “intend[s]” as of January 27. His phrasing of “I intend this decision to take effect ….” falls well short of “This decision will take effect ….” Indeed, Breyer makes explicit that his then-current intention rests on his “assuming that by then my successor has been nominated and confirmed.”

Breyer might instead have written: “My decision will take effect when the Court rises for the summer recess this year if my successor has been nominated and confirmed by then, and, if not, then upon the subsequent confirmation of my successor.” But as law professor Richard Re points out in a very recent paper (“The Peril and Promise of SCOTUS Resignations”), Breyer might well have worded his letter as he did in order to give him “wiggle-room” in case “Breyer’s would-be replacement became stalled” and he wanted to prevent a Republican president elected in 2024 from being able to appoint his successor.

Let’s also compare Breyer’s January 27 letter to the retirement letters of Justices O’Connor, Souter, Stevens, and Kennedy. The letters from O’Connor, Stevens, and Kennedy all clearly announce decisions to retire.

O’Connor: “This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.”

(Longtime readers with excellent memories might recall that way back in 2010 I raised the separate question whether O’Connor had fully retired from judicial service (under 28 U.S.C. § 371(a)) or had chosen to remain eligible to serve on the lower courts (under 28 U.S.C. § 371(b)).)

Stevens: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.”

Kennedy: “This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b).”

By contrast, Souter, much like Breyer, merely states what he “intend[s]” to do: “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l).”

So the question becomes whether and how Souter later effected a firm decision to retire. A sufficient answer, it would seem, is provided by the touching exchange of letters between Justice Souter and the other justices on June 29, 2009. In their letter thanking Souter for his service to the Court and for “the privilege of your sturdy friendship,” the other eight justices refer (imprecisely, in my view) to the earlier “announcement of your decision to retire.” As part of his response, Souter states, “I will not sit with you at our bench again after the Court rises for the Summer this time.”

It’s reasonable to expect that Breyer and the other justices will have a similar exchange of letters at the end of this term in which Breyer can make crystal clear that he is actually retiring. But until he does so through that or some other means, I do not believe that he has taken the action necessary to effectuate his retirement at the end of the Court’s term.

Law & the Courts

This Day in Liberal Judicial Activism—April 13

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2001—Judge Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s denial of rehearing en banc of a panel decision in Chandler v. Siegelman. The panel, setting forth the complementary principles that public schools may neither sponsor nor censor student prayer, overturned a district court injunction barring a school from (as the panel put it) “‘permitting’ students to speak religiously in any sort of public context.” Barkett asserts that the district court injunction properly barred “public student prayer.” 

Law & the Courts

This Day in Liberal Judicial Activism—April 12

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1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers. 
 
2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida) that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.  

Law & the Courts

This Day in Liberal Judicial Activism—April 11

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Judicial Nominee Wendy Vitter (Screengrab via Politico Watch)

2018—“Progressive fury” (as CNN puts it) is unleashed on federal district nominee Wendy Vitter for declining to opine at her confirmation hearing whether she believes that Brown v. Board of Education was correctly decided. Malicious charges spread that Vitter supports racial segregation. 

Never mind that, like many other nominees, Vitter took the position that it was improper for her to comment on the rightness or wrongness of any Supreme Court ruling. Never mind that she committed to apply all existing precedents. Never mind that she testified that racial segregation is immoral. Never mind that no one identified anything in her life or career to suggest that she is racially biased. Never mind that she has earned the support of Democrats like New Orleans mayor Mitch Landrieu (who, among other things, called for the removal of city monuments honoring leaders of the Confederacy). 

What many on the Left really object to—or so it would seem from the questions posed at the hearing by Senate Democrats—is that Vitter is openly pro-life.  

2018—Federal district judge Manuel L. Real rules (in City of Los Angeles v. Sessions) that the Department of Justice, in administering a federal program to give grants to local governments to hire officers, cannot favor applicants who commit to address illegal immigration, and he enters a nationwide injunction against DOJ. Some fifteen months later, a Ninth Circuit panel will reverse Real’s ruling. 

2019—Accepting the Thomas Jefferson Foundation Medal in Law from his alma mater, the University of Virginia law school, federal district judge Carlton W. Reeves addresses what he calls the three “great assaults” on the federal judiciary. Reeves powerfully describes the first two assaults, in the Reconstruction Era and in the resistance to Brown v. Board of Education. But he then descends into rank partisanship as he decries the “third great assault on our judiciary,” which consists above all of tweets and comments by Donald Trump slamming various judges and rulings. There is plenty of room to deplore Trump’s comments without seeing in them anything remotely like the return of the Klan. 

Law & the Courts

This Day in Liberal Judicial Activism—April 10

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The U.S. Supreme Court building in Washington, D.C. (Molly Riley/Reuters)

2017—Livid that Senate Democrats’ historically idiotic filibuster of Neil Gorsuch’s nomination has led Republicans to abolish the 60-vote cloture threshold for Supreme Court nominations, Democratic senator Ed Markey vows that Senate Democrats will restore the filibuster for Supreme Court nominations as soon as they regain control of the Senate. But after Senate Democrats do take control of the Senate in 2021, neither Markey nor Senate Democrats will make any such effort. Instead, Markey will launch an effort to pack the Supreme Court. 

Law & the Courts

This Day in Liberal Judicial Activism—April 9

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The Supreme Court of the United States in Washington, D.C. (Andrew Kelly/Reuters)

2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments. The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public. The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent). The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive. In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.  

2018—The Ninth Circuit issues a 6-5 en banc ruling in Rizo v. Yovino, with Judge Stephen Reinhardt listed as the author of the six-judge majority holding that an employer’s consideration of prior pay is impermissible under the Equal Pay Act. Never mind that Reinhardt died eleven days earlier and that his putative vote was essential to the outcome. 

In February 2019, a unanimous Supreme Court will summarily reverse the Ninth Circuit on the ground that Reinhardt could not take part in the case after his death: “Federal judges are appointed for life, not for eternity.” 

2018—Taking what it calls “an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders,” a Third Circuit panel rules (in United States v. Grant) that a man sentenced to a term of 65 years without parole for brutal crimes (including murder) that he committed when he was 16 years old has a presumptive right to be released from prison before he turns 65. 

Law & the Courts

This Day in Liberal Judicial Activism—April 8

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2005—A split Ninth Circuit panel, in an opinion by notorious activist judge Stephen Reinhardt, rules in a habeas case (Musladin v. Lamarque) that under clearly established Supreme Court law a defendant on trial for murder was deprived of his right to a fair trial by an impartial jury when the trial judge permitted family members of the victim (or, as Reinhardt insists on referring to him in quotes, the “victim”) to wear buttons bearing the deceased’s photograph. (The panel will later substitute in a slightly different version of its opinion.)  

In 2006, a mere two months after oral argument, the Supreme Court (in Carey v. Musladin) will unanimously reverse the Ninth Circuit. 

2015—Shirley, you can’t be serious! 

The day after Wisconsin voters amend the state constitution to alter the method for determining who is chief justice of the Wisconsin supreme court, Wisconsin chief justice Shirley S. Abrahamson files a federal lawsuit contending that the amendment violates her constitutional rights. The legal reasoning in Abrahamson’s complaint reflects just the sort of activist nonsense that Abrahamson has been notorious for during her decades on the court.

Less than three months later, the federal judge handling the case—an Obama appointee, no less—will grant summary judgment against Abrahamson.