Law & the Courts

Mississippi Brief in Dobbs Calls for Overruling of Roe and Casey

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The state of Mississippi has just filed its merits brief in Dobbs v. Jackson Women’s Health Organization, the big abortion case to be decided by the Supreme Court next term. At issue in the case is Mississippi’s Gestational Age Act, enacted in 2018, which allows abortions after 15 weeks of gestational age only in medical emergencies or in instances of severe fetal abnormality.

It is difficult to see how the Court could rule in favor of Mississippi without overruling Roe v. Wade and Planned Parenthood v. Casey, so I’m glad to see Mississippi’s strong and straightforward call for those cases to be overruled. Here is the introduction to the state’s brief:

On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws.

This case is made hard only because Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), hold that the Constitution protects a right to abortion. Under those cases, a state law restricting abortion may not pose an “undue burden” on obtaining an abortion before viability. 505 U.S. at 877 (plurality opinion). And “[b]efore viability,” this Court has said, a State may not maintain “a prohibition of abortion,” id. at 846—despite the State’s “important interests” in protecting unborn life and women’s health, Roe, 410 U.S. at 154. Both courts below understood Roe and Casey to require them to strike down Mississippi’s Gestational Age Act because it prohibits (with exceptions for life and health) abortion after 15 weeks’ gestation and thus before viability.

Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.

Roe and Casey are egregiously wrong. The conclusion that abortion is a constitutional right has no basis in text, structure, history, or tradition. Roe based a right to abortion on decisions protecting aspects of privacy under the Due Process Clause. 410 U.S. at 152-53. But Roe broke from prior cases by invoking a general “right of privacy” unmoored from the Constitution. Notably, Casey did not embrace Roe’s reasoning. See 505 U.S. at 846-53. And Casey’s defense of Roe’s result—based on the liberty this Court has afforded to certain “personal decisions,” id. at 851, 853—fails. Casey repeats Roe’s flaws by failing to tie a right to abortion to anything in the Constitution. And abortion is fundamentally different from any right this Court has ever endorsed. No other right involves, as abortion does, “the purposeful termination of a potential life.” Harris v. McRae, 448 U.S. 297, 325 (1980). So Roe broke from prior cases, Casey failed to rehabilitate it, and both recognize a right that has no basis in the Constitution.

Roe and Casey have proven hopelessly unworkable. Heightened scrutiny of abortion restrictions has not promoted administrability or predictability. And heightened scrutiny of abortion laws can never serve those aims. Because the Constitution does not protect a right to abortion, it provides no guidance to courts on how to account for the interests in this context. A court cannot “objectively … weigh[ ]” or “meaningful[ly] … compare” the “imponderable values” involved. June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103, 2136 (2020) (Roberts, C.J., concurring in judgment). Heightened scrutiny—be it the undue-burden standard or another heightened standard—is also “a completely unworkable method of accommodating” the state interests “in the abortion context.” City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 454 (1983) (O’Connor, J., dissenting). While crediting States with important interests, Roe and Casey impede States from advancing them. Before viability the undue-burden standard has been understood to block a State from prohibiting abortion to assert those interests. And that standard forces a State to make an uphill climb even to adopt regulations advancing its interests. That is flawed. If a State’s interests are “compelling” enough after viability to support a prohibition, they are “equally compelling before” then. Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 795 (1986) (White, J., dissenting).

Roe and Casey have inflicted significant damage. Those cases “disserve[ ] principles of democratic self-governance,” Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547 (1985), by “plac[ing]” one of the most important, contested policy issues of our time largely “outside the arena of public debate and legislative action,” Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Far from bringing peace to the controversy over abortion, Roe and Casey have made matters worse. See, e.g., Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 385-86 (1985) (“Heavy-handed judicial intervention [in Roe] was difficult to justify and appears to have provoked, not resolved, conflict.”). Abortion jurisprudence has placed this Court at the center of a controversy that it can never resolve. And Roe and Casey have produced a jurisprudence that is at war with the demand that this Court act based on neutral principles. Abortion caselaw is pervaded by special rules—the undue-burden standard, the large-fraction test, and more—that feed the perception that “when it comes to abortion” this Court does not “evenhandedly apply[ ]” the law. Thornburgh, 476 U.S. at 814 (O’Connor, J., dissenting). Casey retained Roe’s central holding largely on the view that overruling it would hurt this Court’s legitimacy. 505 U.S. at 864-69. The last 30 years show the opposite. Roe and Casey are unprincipled decisions that have damaged the democratic process, poisoned our national discourse, plagued the law—and, in doing so, harmed this Court.

The march of progress has left Roe and Casey behind. Those cases maintained that an unwanted pregnancy could doom women to “a distressful life and future,” Roe, 410 U.S. at 153, that abortion is a needed complement to contraception, Casey, 505 U.S. at 856, and that viability marked a sensible point for when state interests in unborn life become compelling, id. at 860. Factual developments undercut those assessments. Today, adoption is accessible and on a wide scale women attain both professional success and a rich family life, contraceptives are more available and effective, and scientific advances show that an unborn child has taken on the human form and features months before viability. States should be able to act on those developments. But Roe and Casey shackle States to a view of the facts that is decades out of date.

Reliance interests do not support retaining Roe and Casey. Almost all of this Court’s abortion cases have been fractured, with many Justices questioning Roe’s central premises. The people have long been “on notice” of “misgivings” on this Court about Roe and Casey. Janus v. AFSCME, 138 S. Ct. 2448, 2484 (2018). And where, as with the undue-burden standard, precedents “do[ ] not provide a clear or easily applicable standard,” “arguments for reliance based on [their] clarity are misplaced.” Ibid. (internal quotation marks omitted). That abortion has remained a wholly unsettled policy issue also undermines reliance on Roe and Casey. Casey maintained that societal reliance interests favored retaining Roe. 505 U.S. at 855-56. Developments since Roe tell a different story. Innumerable women and mothers have reached the highest echelons of economic and social life independent of the right endorsed in those cases. Sweeping policy advances now promote women’s full pursuit of both career and family. And many States have already accounted for Roe and Casey’s overruling.

Overruling Roe and Casey makes resolution of this case straightforward. The Mississippi law here prohibits abortions after 15 weeks’ gestation, with exceptions for medical emergency or severe fetal abnormality. That law rationally furthers valid interests in protecting unborn life, women’s health, and the medical profession’s integrity. It is therefore constitutional. If this Court does not overrule Roe and Casey’s heightened-scrutiny regime outright, it should at minimum hold that there is no pre-viability barrier to state prohibitions on abortion and uphold Mississippi’s law. The court of appeals’ judgment affirming a permanent injunction of the State’s law should be reversed.

Law & the Courts

Eleventh Circuit Panel Reassigns Sex

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I’ve been away for several days, so I’m only now catching up on last Friday’s bizarre Eleventh Circuit ruling in Adams v. School Board of St. Johns County.

Last August, a divided panel of the Eleventh Circuit ruled that a school board violated the Equal Protection and Title IX rights of a transgender student, Drew Adams—a girl who identifies as male—by barring her from using the boys’ restroom. Last week, in an apparent effort to evade en banc review (“to get broader support among our colleagues”), the panel majority—Judge Beverly Martin, joined by Judge Jill Pryor—vacated its opinion from a year ago and substituted a new and very different opinion. As Martin sums it up, “This revised opinion does not reach the Title IX question and reaches only one ground under the Equal Protection Clause instead of the three Equal Protection rulings we made in the August 7 opinion.”

Unfortunately, Judge Martin’s new opinion is no more persuasive than her opinion last August.

Martin purports to apply intermediate scrutiny to a bathroom policy that “categorizes on the basis of sex.” But in what Chief Judge William Pryor in dissent calls “linguistic sleight of hand,” she uses sex as a synonym for gender identity and actually objects to the disparate impact that the bathroom policy has on Adams, who, unlike other students, can’t use a multi-stall bathroom that comports with her gender identity. (Lest there be confusion between the joining judge and the dissenter: All further references to “Pryor” in this post are to the dissent.)

Martin contends that the school district “assigns students to sex-specific bathrooms in an arbitrary manner” by relying “solely on the sex indicated on a student’s enrollment documents.” That policy, she argues, is arbitrary in two ways. First, because some transgender students could misstate their actual sex on their enrollment documents, the policy “does not even succeed in treating all transgender students alike.” Adams can’t use the boys’ restroom because her enrollment documents accurately identify her as biologically female. But if a girl inaccurately identified herself on her enrollment documents as male, she could use the boys’ restroom. Second, the policy doesn’t allow “current government records” (e.g., a driver’s license) to trump the enrollment documents. Of such stuff we are supposed to believe that a violation of the Equal Protection Clause is made.

In dissent, Pryor explains that there is nothing arbitrary about relying on the sex that a student reports on enrollment documents. The “possibility of evasion” does not render the school district’s practice unconstitutional, and “[e]ven if every single transgender student successfully enrolled as a member of the opposite sex, the school district would still be 99.96 percent accurate at identifying the sex of its students.” “Nor is there any reason for the school to accept updates,” as the purpose of using enrollment documents “is to determine students’ sex, not their gender identity.” The bottom line is that “there is nothing unlawful, under either the Constitution or federal law, about a policy that separate bathrooms for schoolchildren on the basis of sex.”

I don’t see how any sex-segregated bathroom policy could survive Martin’s scrutiny. By disregarding (i.e., declining to discriminate on the basis of) transgender status, any such policy will inevitably have a disparate impact on transgender students. Moreover, even a policy that looks to “current government records” wouldn’t “succeed in treating all transgender students alike.” And what about gender-fluid individuals who don’t identify as either male or female? It would seem that Martin is really insisting that the Constitution requires that transgender students be given the unique right to use whatever bathroom they prefer.

Let’s hope that Martin does not succeed in bamboozling her Eleventh Circuit colleagues into denying en banc review of her ruling.

Law & the Courts

This Day in Liberal Judicial Activism—July 22

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(utah778/Getty Images)

2004—Continuing their unprecedented campaign of judicial filibusters, Senate Democrats exert their minority power to prevent cloture on President George W. Bush’s nominations of Richard A. Griffin, David W. McKeague, and Henry W. Saad to supposed Michigan seats on the Sixth Circuit. Griffin, first nominated in May 2003, and McKeague, first nominated in November 2001, are finally confirmed in June 2005. Saad, never confirmed, finally withdraws his nomination in March 2006.

2016—By a vote of 4 to 1, with the members in the majority adopting different rationales, the Alaska supreme court rules (in Planned Parenthood of the Great Northwest v. Alaska) that a 2010 voter initiative that provides for parental notification for a minor’s abortion violates the state constitution.

Law & the Courts

This Day in Liberal Judicial Activism—July 21

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(Evgeniia Ozerkina/iStock/Getty Images Plus)

2020—In a brazen exercise in bullying federal judges, all ten Democrats on the Senate Judiciary Committee sign their names to letters to Eleventh Circuit judges Robert Luck and Barbara Lagoa demanding that they explain to the senators how they can take part in the Eleventh Circuit’s pending en banc proceedings in Jones v. DeSantis. Nine of the ten Democrats are also lawyers, so, as Eleventh Circuit chief judge William Pryor will inform the parties in the case, their letters to Luck and Lagoa, at the very time that plaintiffs’ motion to disqualify them is pending before them, are ex parte communications—communications, that is, outside of the presence of opposing counsel and generally barred by rules of professional conduct.

Law & the Courts

This Day in Liberal Judicial Activism—July 20

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

1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”

Five days later, President Bush will nominate David H. Souter to fill Brennan’s seat.

Law & the Courts

This Day in Liberal Judicial Activism—July 19

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U.S. Court of Appeals for the Ninth Circuit (legalnewsline.com)

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.”

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction.

Law & the Courts

This Day in Liberal Judicial Activism—July 18

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Supreme Court Justice Elena Kagan attends a ceremonial swearing in Washington March 6, 2015. (Yuri Gripas/Reuters )

2014—In State v. Gleason, the Kansas supreme court expressly acknowledges that the U.S. Supreme Court “has explained that its Eighth Amendment jurisprudence on capital sentencing should not be interpreted as creating any constitutional requirements as to how or whether a capital jury should be instructed on the burden of proof for mitigating circumstances.” But the court nonetheless proceeds to rule that sentencing instructions violated the Eighth Amendment by failing “to affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror in that juror’s sentencing decision and not beyond a reasonable doubt.”

A year and a half later (in Kansas v. Carr), the Supreme Court will reverse the Kansas supreme court by a vote of 8 to 1.

2019—For liberal justices, stare decisis (respect for precedent) is sacrosanct and absolute for liberal precedents but has little or no force for precedents they oppose. At a law-school event, Justice Kagan emphatically declares that she will “never accept” the Supreme Court’s decision weeks earlier in Rucho v. Common Cause, in which the Court ruled by a 5-4 vote that claims of excessive partisan gerrymandering present nonjusticiable “political questions.”

Kagan is surely correct on the higher principle that some rulings are so “tragically wrong” that no justice should ever be obligated to acquiesce in them. But that principle applies all the more plainly to Roe v. Wade, which Kagan and her liberal colleagues seek to protect by their selective and opportunistic paeans to stare decisis.

Law & the Courts

This Day in Liberal Judicial Activism—July 17

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Senator Barack Obama (D-IL) listens during a news conference in the Capitol in Washington on February 6, 2007. (Kevin Lamarque/Reuters)

2007—Campaigning for president, then-Senator Barack Obama delivers a speech to the Planned Parenthood Action Fund in which he states that what really counts in a Supreme Court justice is “what is in the justice’s heart.” Obama promises that “the criterion by which I’ll be selecting my judges” is “who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom, the empathy to understand what it’s like to be poor or African-American or gay or disabled or old.”

Law & the Courts

Religious Liberty, Exceptions, and Targeting

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A police officer walks in front of the United States Supreme Court Building in Washington, D.C., May 13, 2021. (Andrew Kelly/Reuters)

Does the Free Exercise Clause entitle religious believers to exceptions from laws that burden their religious practices? Years ago, the Supreme Court said no. This year, though, in Fulton v. Philadelphia, the Court made some changes in a more religion-friendly direction. It said that if the government offers exceptions from a rule but doesn’t offer them to religious parties, the Court will apply strict scrutiny — a tough standard to protect religious liberty and scrutinize the government policy.

In a concurrence, Justice Alito worried that it would be all too easy to make an end-run around the majority’s rule: Government actors could just stop offering any exceptions.

There is an answer to Justice Alito’s worry: Many efforts to evade Fulton will end up looking like a form of targeting religion. This will trigger strict scrutiny. And the recent cert grant in Carson v. Makin, a case regarding school funding in Maine, could allow the Court to clean up remaining questions about the analysis.

The Context: The Court’s Rereading of Its Free Exercise Precedents

The Supreme Court’s 30-year-old Free Exercise case, Employment Division v. Smith, said that laws that are neutral and generally applicable are not a violation of the Free Exercise Clause. But this year, the Supreme Court established that a lot of laws will fail the “generally applicable” test. In Tandon v. Newsom, the Court held that laws with exceptions are not generally applicable. In Fulton, a majority held that laws that give the government discretion to give exceptions are also not generally applicable. When a law isn’t generally applicable, then the Court applies strict scrutiny: The government has to have an especially compelling justification for the law; otherwise it’s a violation of the First Amendment.

Some scholars have dubbed the Supreme Court’s new approach the “most favored nation” view of Free Exercise: whenever any comparable activity gets an exception, religious groups must get an exception or else the regulation gets strict scrutiny.

The Problem: Getting around the Rules?

The worry that Justice Alito voiced in his Fulton concurrence was that it would be easy to evade the Supreme Court’s new, more religion-protective rule. Regulators who want to make sure that religious practice is covered just need to eliminate exceptions from their rules.

In Fulton, the city of Philadelphia said that a Catholic adoption and foster-care agency violated the city’s nondiscrimination policy by objecting to placing children with same-sex couples. The government had discretion to offer exceptions from its nondiscrimination rule, but none were given to the religious claimants. The Supreme Court said that this triggered strict scrutiny.

But couldn’t the city just repeal the exceptions? The only person to suffer from the repeal would be the religious parties.

Repealing the Exceptions Would Not Be “Neutral”

The city shouldn’t be able to repeal exceptions just to force the religious groups to comply. If the city eliminated the exceptions or discretion that had triggered strict scrutiny, it would look very much like the city was trying to target the religious parties. And this is prohibited by existing Supreme Court precedent.

In a 1993 case, Church of the Lukumi Babalu Aye v. Hialeah, the Supreme Court explained that a law that “targets” religion is not neutral. In that case a town ordinance was “gerrymandered” to prohibit religious conduct and not much else. A city that eliminated its exceptions or discretion in a particular regulation when a religious objector was complaining would look very much as if it were trying to adjust its regulation to target the religious actor.

As a practical matter, if the actual intent of government actors were to eliminate exceptions precisely in order that its rules would cover religious exercise while avoiding strict scrutiny, there’s a reasonable likelihood that the scheme would be explained at some point. The government actor would say, “Eliminating these exceptions will let us impose this rule on religious people.” This could look like a statement evidencing an antireligious motivation. And the Supreme Court said that such statements evidenced targeting and triggered strict scrutiny in Masterpiece Cakeshop.

The Remaining Issue

One complication remains. A minority of courts have adopted a narrow interpretation of Masterpiece Cakeshop. They say that religion-targeting statements matter only when a government actor is engaged in an adjudicatory function.

The First Circuit suggested this narrow reading of Masterpiece in Carson, the Maine school-choice case. Maine provides funds that parents can use in certain circumstances to pay for private education for their children — but religious education is excluded. Plaintiffs challenging this rule pointed to (among other things) comments in the legislative record that they said were analogous to the anti-religious comments the Supreme Court found problematic in Masterpiece Cakeshop.

But the First Circuit dismissed this argument by claiming that Masterpiece Cakeshop applied only when the anti-religious comment comes up in an “adjudicatory” setting. It’s a questionable reading of Masterpiece: Why would the First Amendment apply differently to adjudicators from legislators? To be sure, there might be different ways to weigh the evidence in different settings. If one of three adjudicators is vocally anti-religious, that will have more weight than if one legislator out of a hundred is anti-religious. And if legislation isn’t otherwise targeting religion, maybe even the presence of animus on the part of some legislators isn’t enough to turn the legislation into a Free Exercise violation.

But so long as legislative targeting of religion is a Free Exercise problem — and we know from Lukumi that it is — then there must be some more nuanced way of evaluating evidence of legislative targeting. The First Circuit’s flat assertion in Carson that Masterpiece Cakeshop doesn’t apply outside of adjudication seems implausible. Indeed, the Supreme Court suggested in Fulton that Masterpiece was applicable there as an alternative rationale for the ruling, which would necessitate applying Masterpiece outside an adjudicatory setting.

A Chance to Clarify

At the very end of its term this year, the Supreme Court agreed to review Carson. (Argument will take place sometime in the fall.) While the focus is on a broader question about the Court’s rules regarding funding to religious education, this also provides the Court with the opportunity to clarify the analysis of religion-targeting laws. It could explain that anti-religious rhetoric matters not just in adjudicatory settings. And if it does this, it will be a lot harder for regulators to make an end run around Fulton too.

Law & the Courts

This Day in Liberal Judicial Activism—July 16

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(Gianluca68/Getty Images)

2014—Federal district judge Cormac J. Carney issues an order (in Jones v. Chappell) that the death penalty in California violates the Eighth Amendment. According to Carney (a Bush 43 appointee), a death sentence “carries with it the implicit promise from the State that it will actually be carried out”—a “promise” that is made to (among others) the “hundreds of individuals on Death Row.” But that promise has become “an empty one,” as “[i]nordinate and unpredictable delay has resulted in a death penalty system in which very few” individuals are ever executed and in which “arbitrary factors … determine whether an individual will actually be executed.”

In short, Carney believes that California has failed to live up to its “promise” to Ernest Dewayne Jones to execute him—and Carney’s remedy for that supposed failure is to prevent California from ever living up to that imagined  promise to Jones. Never mind, further, that it is judicial intervention and the natural death of inmates that, as Orin Kerr observes, are the primary causes of the low odds that any particular Death Row inmate will be executed and that neither cause is attributable to state officials responsible for administering the death penalty.

In November 2015, a Ninth Circuit panel, without reaching the substantive merits of Carney’s ruling, will reverse his order on procedural grounds.

2019—The en banc Fourth Circuit rules by a vote of 8 to 7 (in Manning v. Caldwell) that Virginia’s statutory scheme of regulating and prosecuting “habitual drunkards” is unconstitutionally vague and violates the Eighth Amendment rights of alcoholics. In his dissent, Judge Harvie Wilkinson lambastes the majority opinion as “an assault upon the constitutional, democratic, and common law foundations of American civil and criminal law, and most importantly, to the judge’s place within it.”

Law & the Courts

This Day in Liberal Judicial Activism—July 15

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Inside the Wisconsin Supreme Court (Wikimedia Commons)

2005—More mischief from the Wisconsin supreme court. This time, the same four-justice majority as in Ferdon (see This Day for July 14, 2005), in an opinion by associate justice Louis B. Butler Jr., rules in Thomas v. Mallett that the “risk-contribution theory”—which essentially shifts the burden of proof on key issues from the plaintiff to defendants—applies in a product-liability action against manufacturers of lead pigment.

As the dissent puts it, the “end result is that the defendants, lead pigment manufacturers, can be held liable for a product they may or may not have produced, which may or may not have caused the plaintiff’s injuries, based on conduct that may have occurred over 100 years ago when some of the defendants were not even part of the relevant market.”

In April 2008, Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat Butler’s bid to remain on the court.

In 2009 President Obama will attempt to re-impose Butler on the citizens of Wisconsin by nominating him to a federal district judgeship, but Senate Democrats’ unwillingness to push for a floor vote and the election in 2010 of a Republican senator from Wisconsin, Ron Johnson, will lead to the demise of the nomination.

Law & the Courts

D.C. Circuit Conservatives Divide on Standing in Loss-of-Nationality Case

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Here’s the background to an interesting ruling by a divided panel of conservative D.C. Circuit judges yesterday (in Farrell v. Blinken):

Gerald Farrell was born a United States citizen. In 2004, he naturalized as a Swiss citizen and alleges that he did so with the intent of relinquishing his U.S. citizenship. In 2013, he was arrested in Spain and extradited to the United States for crimes that he committed in the United States in 2003. He pleaded guilty and was sentenced to eight years of imprisonment. While in prison, he attempted to obtain from the State Department a certificate of loss of American nationality, in the hope that such a certificate would enable him to complete the last part of his prison sentence in Switzerland. But the State Department informed him that he had to fill out forms in person at an American consulate abroad in order to receive the certificate. He was of course unable to satisfy that requirement while imprisoned in the United States. The district court upheld the in-person requirement. While his case was on appeal, Farrell was released from prison and returned to Switzerland.

In her majority opinion, Judge Neomi Rao, joined by Judge Justin Walker, ruled that Farrell had standing to pursue his appeal, notwithstanding his release from prison and return to Switzerland. According to Rao, under circuit precedent the government’s failure to recognize expatriation (relinquishment of American citizenship) constitutes an injury in fact. In dissent, Judge Gregory Katsas argues that the supposed circuit precedent involved an alleged injury of an inability to expatriate, not of the mere absence of governmental recognition of expatriation. Applying the Supreme Court’s recent ruling in TransUnion LLC v. Ramirez, he argues that the government’s refusal to issue Farrell a certificate of loss of nationality does not threaten him with any concrete injury.

I will leave it to interested readers to explore more fully the back and forth between Rao and Katsas on standing.

(Rao goes on to rule that the State Department acted arbitrarily in denying Farrell a certificate of loss of nationality and orders it to reconsider his request. Now that Farrell is out of prison, I wonder if it would be simpler for him to just go to a consulate and fill out the forms—if, that is, he has any continuing interest in doing so.)

Law & the Courts

Eighth Circuit Grants En Banc Rehearing on Missouri Down Syndrome Abortion Law

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I’m very pleased to learn that the Eighth Circuit yesterday granted en banc rehearing of the divided panel decision last month that barred Missouri from enforcing its law that makes it unlawful for a person to “perform or induce an abortion on a woman if the person knows that the woman is seeking the abortion solely because of a prenatal diagnosis, test, or screening indicating Down Syndrome or the potential of Down Syndrome in an unborn child.” (The district court’s preliminary injunction against the law will remain in effect in the meantime.)

In reconsidering whether the Missouri law is impermissible under existing Supreme Court precedent, the en banc court will also effectively revisit the panel decision (in Little Rock Family Planning Services v. Rutledge) in January against a similar Arkansas law. (Arkansas has a certiorari petition pending in the Supreme Court.) In April, the en banc Sixth Circuit ruled that Ohio may enforce its similar law.

Law & the Courts

This Day in Liberal Judicial Activism—July 14

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(Dreamstime)

1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.

2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson (in Ferdon v. Wisconsin Patients Compensation Fund), rules that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”

2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to misquote Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences would reach wise decisions.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively misquotes Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.

Law & the Courts

This Day in Liberal Judicial Activism—July 13

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(Kuzma/iStock/Getty Images Plus)

2006— In United States v. McCotry, federal district judge David F. Hamilton invokes “substantive due process” to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant, Tamica Hollingsworth, charged with possessing marijuana and knowingly making her apartment available for the unlawful storage of controlled substances.  One year later, a unanimous Seventh Circuit panel will reverse Hamilton’s ruling.

In March 2009, Hamilton, a former ACLU activist, will become President Obama’s first nominee to an appellate seat.

2020—Federal district judge Theodore D. Chuang grants a preliminary injunction (in American College of Obstetricians & Gynecologists v. FDA) that bars the Food and Drug Administration from enforcing during the coronavirus pandemic two of its rules governing the drug regimen used in medication (i.e., non-surgical) abortions.

Six months later, the Supreme Court will block Chuang’s injunction from continuing in effect pending disposition of the FDA’s appeal.

2020—Under Oregon law, a group petitioning to place an initiative on the November 2020 ballot had to collect 149,360 signatures by July 2, 2020. But when the group claims (in People Not Politicians Oregon v. Clarno) that these requirements can’t constitutionally be applied during the coronavirus pandemic, federal district judge Michael J. McShane orders the state of Oregon either (1) to place the initiative on the ballot or (2) to reduce the signature threshold to 58,759 (which McShane somehow miscalculates to be a 50% reduction) and to extend the deadline to August 17.

One month later, the Supreme Court will block McShane’s order from taking effect pending disposition of the state’s appeal.

Law & the Courts

This Day in Liberal Judicial Activism—July 12

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

2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, there was concern about population growth and particularly growth in populations that we don’t want to have too many of. So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.

Gee, Justice Ginsburg, would you like to tell us more about your views on those “populations that we don’t want to have too many of”?

2016—Reversing the district court, a divided panel of the Tenth Circuit rules (in Planned Parenthood Association of Utah v. Herbert) that the Planned Parenthood Association of Utah is entitled to a preliminary injunction preventing Utah state agencies from implementing the governor’s directive that they stop channeling federal funds to PPAU. The “Factual background” in Judge Mary Beck Briscoe’s majority opinion reads in places like a Planned Parenthood press release. It even obscurely cites a Huffington Post article as authority for her dubious contentions. Worse, in determining that the governor acted in retaliation for PPAU’s exercise of its constitutional rights, Briscoe overrides the district court’s factual findings and draws highly speculative inferences that ignore the obvious reality that the governor was acting in response to concerns that PPAU was complicit in harvesting the body parts of aborted babies.

Three months later, Judge Neil Gorsuch, joined by three colleagues, will dissent from the Tenth Circuit’s denial of en banc review of Briscoe’s ruling.

2019—Taking a remarkably crabbed view of the Department of Health and Human Services’ authority under the Affordable Care Act, a Third Circuit panel rules (in Commonwealth of Pennsylvania v. President) that HHS lacks statutory authority to promulgate its religious and moral exemptions to its mandate that employers include contraceptive coverage in their insurance plans. The panel’s view conflicts with the Supreme Court’s understanding of HHS’s regulatory authority in previous cases and with the Obama administration’s own understanding.

One year later (in Little Sisters of the Poor v. Pennsylvania), the Supreme Court will reverse the Third Circuit by a 7-2 vote.

Law & the Courts

This Day in Liberal Judicial Activism—July 10

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(LIgorko/Getty Images)

2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says.

But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling.

Law & the Courts

This Day in Liberal Judicial Activism—July 9

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(carlballou/Getty Images)

1987—In 1986, the Supreme Court ruled in California v. Ciraolo that a person growing marijuana in his back yard does not have a reasonable expectation of privacy that protects his premises against inspection by police lawfully operating an aircraft at an altitude of 1,000 feet. Exercising the illogic that will earn her an appointment by President Clinton to the Eleventh Circuit in 1993, Florida justice Rosemary Barkett (in State v. Riley) rules that surveillance of a back-yard greenhouse by a helicopter lawfully flying at 400 feet violates the Fourth Amendment because “[s]urveillance by helicopter is particularly likely to unreasonably intrude upon private activities.”

But the relevant question, as the Supreme Court makes clear in reversing Barkett (in Florida v. Riley), is whether the defendant had a reasonable expectation of privacy in the first place, and that question turns, under Ciraolo, on whether “helicopters flying at 400 feet are sufficiently rare in this country to lend substance to [the defendant’s] claim that he reasonably anticipated that his greenhouse would not be subject to observation from that altitude.”

2019—A Second Circuit panel rules (in Knight First Amendment Institute v. Trump) that President Trump “engaged in unconstitutional viewpoint discrimination by utilizing Twitter’s ‘blocking’ function to limit certain users’ access to his social media account, which is otherwise open to the public at large, because he disagrees with their speech.” The panel’s ruling rests on its determination that Trump’s Twitter account is a “public forum” for purposes of First Amendment analysis.

But as Harvard law professor Noah Feldman explains, the panel’s decision “rests on a conceptual confusion that has serious negative implications for the freedom of speech.” Far from being a public forum, Trump’s Twitter account is “property controlled by Twitter Inc.,” so it’s Twitter, not the First Amendment, that governs speech on its property.

Law & the Courts

This Day in Liberal Judicial Activism—July 8

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A police officer walks in front of the United States Supreme Court Building in Washington, D.C., May 13, 2021. (Andrew Kelly/Reuters)

1994—Some messes can take years to clean up.

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

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

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

Law & the Courts

Is the Ninth Circuit Beginning to Clean Up Its Act?

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According to SCOTUSblog’s Circuit Scorecard, the Supreme Court reversed the Ninth Circuit in 15 times out of 16 occasions in the just-concluded Term, including three summary reversals. On at least seven of those occasions, conservative Ninth Circuit judges had objected to that court’s failure to grant rehearing en banc.

Perhaps it’s wishful thinking, but I wonder if the Supreme Court’s smackdowns have caught the attention of some of the more moderate Democratic appointees on the Ninth Circuit. Some evidence for that hope might be found in the Ninth Circuit’s grant yesterday of en banc rehearing in Tomczyk v. Garland.

As I highlighted back in February, the three-judge panel in that case (then known as Tomczyk v. Wilkinson) had split on the seemingly elementary question whether an alien has “reentered the United States illegally” when he was inadmissible at the time of his reentry. Judge William Fletcher, who seems to be competing to succeed the late Stephen Reinhardt as the most aggressive liberal on the Ninth Circuit, wrote the majority opinion. Judge Jay Bybee, a Bush 43 appointee (and my former boss in the Office of Legal Counsel at the Department of Justice) dissented. So the grant of en banc rehearing suggests that a majority of the court thinks that Fletcher got it wrong (or at least didn’t abide by circuit precedent).

Law & the Courts

Revisiting Harris Funeral Homes’ Compelling Government Interest Analysis after Fulton

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The Supreme Court building in Washington, D.C., June 17, 2021. (Jonathan Ernst/Reuters)

In the latest Supreme Court showdown involving LGBT discrimination and religious liberty, Fulton v. Philadelphia, the Court ruled 9–0 for religious liberty. The issue in Fulton was whether the City of Philadelphia could ban Catholic Social Services (CSS) from the city’s foster-care program for declining to certify same-sex couples as foster parents based on CSS’s religious beliefs about marriage. Dozens of other foster agencies were willing to certify same-sex couples as foster parents. The Court unanimously held that the City’s actions violated the Free Exercise Clause of the First Amendment.

To reach this conclusion, the majority of Justices looked to Employment Division v. Smith, a 1990 case that subjects non-neutral and non-generally applicable government policies or laws to “strict scrutiny” when they burden religious exercise. Strict scrutiny means the policies are unconstitutional unless the government can prove it has a compelling, narrowly tailored interest to justify burdening religious exercise. As Fulton explained, “so long as the government can achieve its interests in a manner that does not burden religion, it must do so.”

Because Philadelphia on paper allowed for exceptions to its non-discrimination policy (though none had ever been granted), it was not a “generally applicable” policy and thus subject to strict scrutiny. The Court explained that the question “is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS.” As Justice Neil Gorsuch wrote in another case, Fulton explains that “strict scrutiny demands ‘a more precise analysis’”: a government’s “general interest” in its regulations are not compelling “without reference to the specific application of those rules to [the specific party].”

With this move, the Fulton Court rejected general or “broadly formulated” sexual orientation non-discrimination goals as being a compelling government interest. Rather, the Court rightly framed the question around the party whose religious beliefs were burdened by the policy — whether the government has an interest in banning CSS when the City’s policy allowed exceptions.

Fulton’s framing of the government’s compelling interest calls into question the Sixth Circuit Court of Appeal’s approach in EEOC v. R.G. & G.R. Harris Funeral Homes, a 2018 case involving a Title VII employment discrimination enforcement action on behalf of a biological male transgender employee who was dismissed for insisting on presenting as female at work.

The funeral home raised a defense under the Religious Freedom Restoration Act (RFRA), which prohibits the federal government from substantially burdening a person’s exercise of religion unless it satisfies strict scrutiny — the same test applied in Fulton. The Sixth Circuit rejected the funeral home’s claim of a substantial burden on religious exercise. Although it could have stopped its analysis there, the court also ruled that “failing to enforce Title VII against the Funeral Home mean[t] the [government] would be allowing a particular person . . . to suffer discrimination, and such an outcome is directly contrary to the [government’s] compelling interest in combating discrimination in the workforce.”

In other words, according to the Sixth Circuit, the government had a compelling interest in “enforcing its non-discrimination policies” under Title VII. But that is the very framing rejected by the Supreme Court in Fulton.

Like the exceptions Philadelphia permitted in its non-discrimination policy, Title VII contains statutory exemptions for religious organizations and educational institutions and for bona fide occupational qualifications, including with respect to sex. Consistent with Fulton, the question in Harris Funeral Homes should have been whether the government has a compelling interest “in denying an exception” under Title VII to the funeral home.

Although the Supreme Court upheld the Sixth Circuit’s Harris Funeral Homes decision in Bostock v. Clayton County in 2020, it did not address the RFRA ruling because that claim was not appealed. The Bostock Court, however, was “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution” and acknowledged that “[b]ecause RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.” The Supreme Court thus left open the door for Title VII’s non-discrimination prohibitions to fail strict scrutiny in certain circumstances.

This pronouncement in Bostock coupled with the Court’s dismissal of generalized compelling government interests in Fulton undermine the claims that non-discrimination in general is a per se compelling government interest and that to achieve that interest, the government must enforce its non-discrimination policies in every instance against religious parties, regardless of any exceptions or burdens on religious exercise. Consistent with the First Amendment’s promise of free exercise, the government does not have a compelling interest in forcing religious parties to violate their sincerely held religious beliefs.

Of course, none of this is to say that the religious claim will always win. Indeed, the Supreme Court has found in certain circumstance that there is no other way to achieve an “overriding governmental interest” in a manner that does not burden religion, such as with eradicating racial discrimination after the Civil War and through Jim Crow or with the requirement to pay income taxes, even if the funds are used in ways that conflict with a taxpayer’s religious beliefs.

After Fulton, the Sixth Circuit’s compelling interest analysis in Harris Funeral Homes cannot stand. Courts cannot credit the alleged compelling government interest of non-discrimination by ignoring the constitutional guarantee of free exercise.

Law & the Courts

This Day in Liberal Judicial Activism—July 7

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President Jimmy Carter at the White House, March 1977 (Library of Congress)

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

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

2020—The Fourth Circuit denies en banc rehearing of a rogue panel opinion in United States v. Gary. In a plea colloquy over a firearms-possession charge, the district court had failed to inform the defendant that the government would have to show at trial that he knew that he had previously been convicted of a felony at the time of his unlawful possession of the firearm. The panel ruled that this error was a “structural error” that was not amenable to harmless-error analysis.

Judge J. Harvie Wilkinson, joined by four of his colleagues, “concur[s] in the denial of rehearing en banc for one reason and one reason only”:

The panel’s holding is so incorrect and on an issue of such importance that I think the Supreme Court should consider it promptly. Any en banc proceedings would only be a detour. Many, many cases await the resolution of this question.

This court’s decision is far-reaching in its implications. It not only creates a circuit split of yawning proportions, but also an equally profound schism with the Supreme Court’s whole approach to error review and remediation.

The Supreme Court will grant review, and, in the consolidated ruling in Greer v. United States, every justice will reject the panel decision.

Law & the Courts

Law Professor Michael Paulsen on Dobbs and Stare Decisis

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Last week I highlighted the first part of law professor Michael Stokes Paulsen’s two-part series on Dobbs v. Jackson Women’s Health Organization, the huge abortion case on the Supreme Court’s docket next Term. In that first essay, Paulsen sketches how egregiously wrong and radical the Roe/Casey regime is. In his Part II essay, Paulsen addresses “whether the doctrine of stare decisis legitimately can require, or even permit, the Court to adhere to a grievously wrong, legally insupportable precedent, simply because it is a precedent.”

Paulsen argues (compellingly, in my view) that the very logic that supports the power of judicial review—the power, that is, to decline to enforce democratic enactments that conflict with the Constitution—“forbids courts from giving effect to precedents that they are fully persuaded are contrary to the true meaning of the Constitution.” Further, the “systemic values” that the doctrine of stare decisis (qualified adherence to precedent) serves—“predictability, consistency, stability, protection of justified reliance, and judicial humility—are all fully served by giving precedents their full persuasive force and a presumption of validity.” (Paulsen’s emphasis.)

Further, Paulsen explains, whether or not “the six justices on the Court who doubtless recognize Roe as badly wrong” agree in full with him on the scope of stare decisis, none of them “possesses an extreme or unprincipled approach to stare decisis—one that would support adhering to a seriously wrong precedent in known conflict with a faithful interpretation of the Constitution.” Therefore, there ought to be six votes to overrule Roe and Casey.

Paulsen ends with a somber word of warning: Three decades ago, Roe was ripe to be overruled in Planned Parenthood v. Casey. But “[e]normous public pressure was brought to bear on [Justices] O’Connor, Kennedy, and Souter not to overrule Roe,” and they “defected to the pro-abortion side”:

Casey was a calculated, intentional, venal, despicable judicial act deliberately reaching the wrong constitutional result, and then seeking to cloak that action in a plausible-sounding but pernicious manipulation of the doctrine of stare decisis. Casey combines the wrongness of Roe with the seemingly deliberate manipulativeness of Dred Scott v. Sandford, the Court’s atrocious, dishonest pro-slavery decision of 1857. It is as important for the Court to repudiate Casey as it is for the Court to repudiate Roe.

But could it happen again? Nothing is certain. The doctrine of stare decisis is a dangerous tool, malleable, and peculiarly susceptible to manipulation and abuse. It entices and deceives. And Supreme Court justices are vulnerable and, to some extent, political human beings. They are flawed men and women. They might cave, trim, shade, temporize, politicize. They might act from fear of reproof or reprisal, from concerns over image, or from political motives. They might betray, or compromise, their own prior stated principles. They might betray the Constitution. All it takes is two, and Dobbs is lost.

If so, Dobbs will displace Casey as the worst Supreme Court decision of all time, and the justices rendering it will merit the most severe condemnation of history. But if the Court overrules Roe and Casey, the Dobbs case would rank among the most magnificent decisions in the Court’s history, taking its place alongside other great overruling decisions like Brown v. Board of Education (1954).

Law & the Courts

This Day in Liberal Judicial Activism—July 6

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(Pixabay)

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—July 5

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(Nadya So/Getty Images)

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

Law & the Courts

This Day in Liberal Judicial Activism—July 4

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The Declaration of Independence (Wikimedia Commons)

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—July 3

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

2019—In Sierra Club v. Trump, a divided Ninth Circuit panel bars the Trump administration from reprogramming appropriated funds to build a border wall with Mexico. Specifically, the panel leaves in place, pending its consideration of the government’s appeal, a permanent injunction entered by a district court against the use of reprogrammed funds. In dissent, Judge N. Randy Smith concludes that plaintiffs have no legal claim that they are entitled to invoke.

Three weeks later, the Supreme Court, by a 5-4 vote, will override the Ninth Circuit’s ruling and block the district court’s injunction from taking effect. (In June 2020, another divided panel of the Ninth Circuit will affirm the district court’s injunction.)

Law & the Courts

A New Day at the Supreme Court

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A police officer walks in front of the United States Supreme Court Building in Washington, D.C., May 13, 2021. (Andrew Kelly/Reuters)

The term of the Supreme Court just concluded was Justice Amy Coney Barrett’s first, and her confirmation last fall gave the Court a majority of justices who base their decisions on the law and the Constitution. That has translated into a term conspicuous for the absence of living constitutionalism, a brand of activism that disregards both the structural Constitution and the Constitution’s enumerated rights, which too often have been diminished by judicial interpretation even as justices contrive other rights from current fashions nowhere to be found in text or history.

The Court’s journey to where it is today was long and tortuous, including recurring Democratic campaigns to vilify conservative nominees and the notable defeat of Robert Bork’s nomination along the way. As I previously pointed out here, the principles of originalism and textualism were widely stigmatized for many years in courts and in legal academia before the Reagan administration began to push for originalist judges during its second term. By that time, much damage had been done at the hands of Republican-appointed justices, and additional appointments by Reagan and the first President Bush would have a mixed record, often siding with the Court’s liberal bloc. While Justices Antonin Scalia and Clarence Thomas were champions of originalism, Justice David Souter would become a fixture in the Court’s liberal bloc, a distinction he shared with fellow Republican appointees William Brennan, Harry Blackmun, and John Paul Stevens. The swing justices in the center, Sandra Day O’Connor and Anthony Kennedy, were known to join the liberals in several of their era’s defining examples of liberal activism.

Indeed, every one of the Court’s decisions embracing a “living Constitution” over the last half century depended on the votes of Republican-appointed justices. In fact, nearly 30 years ago, after Justice Thomas replaced Justice Thurgood Marshall on the Court, only one Democratic appointee remained on the Court, Justice Byron White, and he usually voted with conservatives. Yet in 1992, that Court handed down its notorious decisions reaffirming abortion as a constitutional right (Planned Parenthood v. Casey) and striking down clergy-led prayer at a high-school graduation ceremony (Lee v. Weisman) — with White in dissent in both cases.

Besides contriving new constitutional rights and often demeaning religious practice, the Court used to be less likely to protect political speech and Second Amendment rights that, like the free exercise of religion, follow directly from constitutional text. The structural Constitution — the less headline-grabbing areas of law, such as the separation of powers and federalism, that are nonetheless just as essential as the Bill of Rights in protecting individual liberty — also took repeated hits.

Members of the conservative blocs of years past were far from blameless for some of these trends. Consider that Justice Scalia was alone in dissent from the Court’s decision upholding the independent-counsel statute in the landmark separation-of-powers case Morrison v. Olson (1988). And Scalia himself revealed a blind spot when he wrote the Court’s opinion narrowing the free-exercise clause in Employment Division v. Smith (1990), which declined to allow an individual’s religious beliefs to excuse compliance with an otherwise valid, neutral law of general applicability even where it burdened such beliefs. Abood v. Detroit Board of Education, the 1977 case that upheld the charging of fees by unions to government employees who did not wish to join, was decided unanimously, and it took over four decades before a 5–4 majority of the Court overruled it in Janus v. AFSCME (2018).

So terms like “conservative” or “liberal” are of limited utility in describing blocs of the Court today versus the past. Moreover, the notion of a center bloc separated by vast ideological space from the other blocs, depending on the case, has become obsolete. Commentators who track the Court have for years indulged in dramatic depictions of the three blocs of justices giving rise to majority opinions that veer from scrupulous originalism to living constitutionalism in the same term. That paradigm had some utility as recently as last term, when Chief Justice John Roberts departed from his prior positions and helped the Court strike down an abortion regulation aimed at women’s health, stymied the Trump administration’s rollback of the Obama administration’s Deferred Action for Childhood Arrivals (DACA) program, and rewrote the Civil Rights Act of 1964 to include sexual orientation and transgender status. He was the justice in the majority the most last term — 97 percent, more than any chief justice in the previous 70 years — and it made sense to highlight his unique ideological place at the center of the Court.

The median justice this term, who was in the majority 97 percent of the time, is Brett Kavanaugh. He had been in dissent in all three of the above-referenced liberal decisions from last term and during his tenure has consistently declined to adopt a constitutional or statutory interpretation in any major case that defies originalism and textualism. That is not to say, of course, that he always agrees with or is more often correct than his fellow constitutionalist justices who subscribe to some form of originalism — Thomas, Samuel Alito, Neil Gorsuch, and Barrett. The Court’s docket includes many close questions of interpretation of legal text, as in Van Buren v. United States, when a question of construing the Computer Fraud and Abuse Act yielded competing opinions, each invoking Scalia for support, with Barrett, Gorsuch, and Kavanaugh in the 6–3 majority and Thomas and Alito in dissent, joined by Roberts.

In other cases, the originalists have disagreed on whether to take a case or whether there are issues preventing them from reaching particular constitutional issues. California v. Texas, the multi-state lawsuit filed in an effort to secure a ruling that the Affordable Care Act is unconstitutional, did not reach the constitutional question because a 7–2 majority that included Thomas decided the plaintiffs lacked standing. While the plaintiffs obviously placed their hopes in a victory and Democrats fueled expectations with their shameless insistence last fall that Barrett was nominated in order to bring about that result, most conservative legal scholars did not expect the challenge to succeed.

Six other opinions of the Court this term did reach major constitutional or statutory issues, and in all six cases, the five originalists agreed on the outcome. In Roman Catholic Diocese of Brooklyn v. Cuomo, they composed the entirety of a 5–4 majority that granted injunctive relief to Catholic churches and Jewish synagogues that challenged New York’s COVID restrictions on worship under the free-exercise clause. In Fulton v. City of Philadelphia, the Court reached a remarkably unanimous judgment that Philadelphia violated the free-exercise clause when it refused to contract with Catholic Social Services, which had been able to contract with the city to provide foster care for over 50 years, unless it agreed to certify same-sex couples as foster parents. Some commentators have emphasized that Thomas, Alito, and Gorsuch concurred separately in the judgment and would have used this case as a vehicle to overrule Employment Division v. Smith while the majority opinion found another free-exercise precedent, Church of Lukumi Babalu Aye v. Hialeah (1993), sufficient to decide the case. But Barrett and Kavanaugh acknowledged in concurrence the “serious arguments that Smith ought to be overruled” and added that “the textual and structural arguments against Smith are more compelling.”

Over 30 years after Smith was decided, a majority of justices expressed their disagreement with the precedent, and future litigants can no longer rely on it to win in court. Alito wrote a comprehensive concurrence on free exercise that lays the foundation for overruling Smith. Do not be surprised if his argument is adopted by the Court in the future, just as the standard for which Alito argued in his concurring opinion regarding the ministerial exception in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012) regarding teachers at religious schools was adopted by the Court last year in Our Lady of Guadalupe School v. Morrissey-Berru. For this term, Cuomo and Fulton continued a remarkable record of wins over the last decade for religious freedom and expression.

Victories for originalism and textualism followed in the areas of property rights, separation of powers, free speech, and voting rights. In Cedar Point Nursery v. Hassid, decided fittingly on the 16th anniversary of the Court’s notorious takings decision in Kelo v. City of New London, the Court struck down as a violation of the takings clause of the Fifth Amendment a California regulation that authorized union organizers to physically occupy growers’ property. The vote was 6–3 with the liberal bloc — Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan — dissenting.

In Collins v. Yellen, which involved a challenge by shareholders of Fannie Mae and Freddie Mac to part of an agreement between the Federal Housing Finance Agency (FHFA) and Treasury Department that transferred nearly all their net earnings to the latter, the Court found the statutory claim barred by the Recovery Act’s anti-injunction clause, but it agreed with the constitutional claim that limiting the president’s authority to remove the FHFA director with a “for cause” restriction violates the separation of powers. This applied the Court’s recognition of the president’s removal power over principal officers last year in Seila Law LLC v. Consumer Financial Protection Bureau. The Court’s six Republican appointees held together on the constitutional claim. Kagan, invoking Seila Law and stare decisis, concurred separately in that judgment while Breyer and Sotomayor dissented.

The two final decisions of the term were among the most anticipated. In Brnovich v. Democratic National Committee, the Court rejected an interpretation of Section Two of the Voting Rights Act that would have wreaked havoc on the nation’s election laws, upholding Arizona’s out-of-precinct policy and ban on ballot harvesting. In Americans for Prosperity Foundation v. Bonta, the Court landed a big victory for anonymous speech and donor privacy as it struck down California’s forced disclosure law. The case is a strong rebuke of states like California and a triumph for the hundreds of groups across the ideological spectrum who sought protection from abusive governments that would bully or intimidate them for their views. Yet again, the Court’s Republican appointees held together in both cases.

Some commentators in mainstream media wrote prior to the last tranche of decisions that the conservatives were badly fractured or that we have a 3–3–3 Court — an argument also advanced in conservative circles. By this account, Roberts, Kavanaugh, and Barrett form a bloc apart from the other three conservatives. That makes for a more dramatic narrative — not unlike the years of wide jurisprudential fluctuations when O’Connor and Kennedy occupied the middle — but current voting patterns do not bear this out. In the six major decisions noted above, the originalists held together — joined even by Roberts in every case except Cuomo. Whether Roberts himself is scaling back the activism he displayed last year may only be apparent after the next term. Either way, the chief justice’s own jurisprudence is not the decisive factor that it was prior to Barrett’s confirmation. In one term, the chief justice went from being in the majority the most to trailing Kavanaugh significantly in that metric (only 91 percent of cases compared with Kavanaugh’s 97 percent). Thomas, for his part, was in the majority 80 percent of the time, up from 72 percent last term. And the two justices with whom Thomas agreed in the judgment most often this term were Gorsuch and Barrett. For that matter, in only three out of the nine cases in which Barrett and Thomas disagreed was Thomas in agreement with both Alito and Gorsuch, supposedly the other two members of a bloc of three. These patterns simply do not support the 3–3–3 bloc theory.

In short, the justices who constitute the new originalist majority have not displayed dramatic differences in their conceptions of the contours of the Constitution. Conservatives may wish for more from the current Court, but those who condemn it without acknowledging what it took to get a majority of the Court to embrace the originalism that was once widely rejected in our legal culture speak without historical perspective. The new Court has made the judicial activism of living constitutionalism a thing of the past, albeit the recent past. Optimistic predictions for next term assume that will remain the case.

Law & the Courts

This Day in Liberal Judicial Activism—July 2

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Badge of an Immigration and Customs Enforcement’s Fugitive Operations team (Lucy Nicholson/Reuters)

2019—In response to a decision by the Attorney General that aliens in removal proceedings awaiting action on their applications for asylum must generally be detained during the process, federal district judge Marsha Pechman (in Padilla v. ICE) enters a nationwide injunction requiring the United States to provide bond hearings for that class of aliens.

Dissenting from a Ninth Circuit panel decision affirming Pechman’s order in March 2020, Judge Bridget Bade will object that the Supreme Court “has repeatedly interpreted [a statutory provision] as a bar on classwide injunctive relief against” removal proceedings and that two other federal appellate courts have so ruled with respect to the very circumstances of this case.

Law & the Courts

Congrats, Judge Ikuta!

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Today was another good day for conservative judges on the Ninth Circuit—and especially for Judge Sandra Ikuta.

In both of its rulings today—Americans for Prosperity Foundation v. Bonta and Brnovich v. Democratic National Committee—the Supreme Court reversed the Ninth Circuit.

Judge Ikuta dissented from the Ninth Circuit’s denial of rehearing en banc in the Americans for Prosperity Foundation case. Judges Callahan, Bea, Bennett and R. Nelson joined her dissent. (The denial came before most of the Trump appointees arrived on the Ninth Circuit.)

Judge Ikuta also wrote the initial panel opinion in the case now known as Brnovich. A limited en banc panel of the Ninth Circuit, over the dissents of Judges O’Scannlain, Bybee, Clifton, and Callahan, rejected Ikuta’s holding, but the Supreme Court today reached the same conclusion she had.

That makes at least eight times this Term that the Supreme Court has vindicated conservative Ninth Circuit judges who have objected to that court’s failure to conduct en banc rehearing of suspect panel rulings or who dissented from en banc decisions. Ikuta led or was among the objectors in seven of the cases.

Law & the Courts

Sweeping First Amendment Victory in Americans for Prosperity Foundation v. Bonta

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In his (predominantly) majority opinion today in Americans for Prosperity Foundation v. Bonta, Chief Justice Roberts delivered a sweeping victory for the First Amendment rights of charitable organizations and their donors. Specifically, the Court ruled by a 6 to 3 vote (along ideological lines) that the state of California’s requirement that charitable organizations that solicit funds in California disclose the identities of their major donors to the state Attorney General’s office violates donors’ First Amendment rights.

The threshold question in the case is what standard of review applies to First Amendment challenges to compelled disclosure. The Chief determines (in Part II-B-1 of his opinion) that “exacting scrutiny,” rather than “strict scrutiny,” should apply. Although you might not be able to discern it from the labels, exacting scrutiny is more permissive than strict scrutiny. Under exacting scrutiny, there must be “a substantial relation between the disclosure requirement and a sufficiently important governmental interest,” whereas under strict scrutiny the government must adopt the least restrictive means of achieving a compelling state interest.

This is the one issue on which the Chief’s opinion did not garner a majority. Justice Thomas would apply strict scrutiny, and Justice Alito, joined by Justice Gorsuch, sees no need to decide in this case between the two standards (and also leaves open the possibility that some compelled disclosures might be subject to one of the standards and others to the other).

The Chief’s opinion is in all other respects a majority. The Chief determines that “[w]hile exacting scrutiny does not require that disclosure regimes be the least restrictive means of achieving their ends, it does require that they be narrowly tailored to the government’s asserted interest.” California’s requirement is “facially unconstitutional” because there is a “dramatic mismatch between the interest that the [California] Attorney General seeks to promote and the regime that he has implemented.” California collects lots of sensitive information about donors’ contributions, but that information plays virtually no role in advancing the Attorney General’s investigative, regulatory, or enforcement efforts concerning charitable fraud and self-dealing. California’s real interest is in ease of administration, but that interest can’t justify the burden on donors’ associational rights.

The Chief explains that a facial challenge is appropriate in this First Amendment context, as the “lack of tailoring to the State’s investigative goals is categorical—present in every case—as is the weakness of the State’s interest in administrative convenience.” It doesn’t matter that some donors might not object to disclosure, as California’s requirement “indiscriminately sweep[s] up the information of every major donor with reason to remain anonymous.” And such reasons clearly exist:

The petitioners here, for example, introduced evidence that they and their supporters have been subjected to bomb threats, protests, stalking, and physical violence. Such risks are heightened in the 21st century and seem to grow with each passing year, as anyone with access to a computer can compile a wealth of information about anyone else, including such sensitive details as a person’s home address or the school attended by his children.

In the face of these privacy concerns, California’s “assurances of confidentiality are not worth much”: “the [district] court found that the Attorney General’s promise of confidentiality ‘rings hollow,’ and that ‘donors and potential donors would be reasonably justified in a fear of disclosure.’”

It might not surprise you to learn that the particular California attorney general whose promise of confidentiality was found by the district court to “ring hollow” was Kamala Harris.

Law & the Courts

Justice Kagan’s Dissent in Brnovich v. DNC

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I have a lot of admiration for Justice Kagan, so I’m disappointed to see that her dissent from Justice Alito’s majority opinion in Brnovich v. Democratic National Committee seems to be playing to the grandstands on the Left. A few examples:

1. There is a lot of rousing rhetoric in Kagan’s opening and conclusion—all with respect to two common measures that even the Biden administration couldn’t bring itself to argue were unlawful.

2. Kagan contends that Alito “fears that the statute Congress wrote is too ‘radical.’” But what Alito in fact argues is that Kagan’s “rewrit[ing]” of section 2 is a “radical project.” It’s cheap of her to fool her readers into thinking that Alito applied the term “radical” to the Voting Rights Act.

3. Kagan writes: “Yet efforts to suppress the minority vote continue. No one would know this from reading the majority opinion.” But Alito explicitly states:

Section 2 of the Voting Rights Act provides vital protection against discriminatory voting rules, and no one suggests that discrimination in voting has been extirpated or that the threat has been eliminated.

Moving beyond what Alito labels Kagan’s extended effort at misdirection, I’ll briefly summarize the heart of her argument (joined in full by Justices Breyer and Sotomayor).

Kagan argues that Section 2’s text requires courts to eradicate voting practices that make it harder for members of some races than of others to cast a vote, unless such a practice is necessary to support a strong state interest. (Pp. 12-20.) She contends that the considerations that Alito draws from the text are instead “mostly made-up factors, at odds with Section 2 itself.” (Pp. 20-29.)

Kagan argues that Arizona’s out-of-precinct policy “results in Hispanic and African American voters’ ballots being thrown out at a statistically higher rate than those of whites” and that “Arizona is the national outlier in dealing with out-of-precinct votes, with the next-worst offender nowhere in sight.” (Pp. 29-35.) Similarly, “Arizona’s law mostly banning third-party ballot collection also results in a significant race-based disparity in voting opportunities” for rural Native American voters. (Pp. 35-40.)

Law & the Courts

Justice Alito’s Majority Opinion in Brnovich v. DNC

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In its decision today in Brnovich v. Democratic National Committee, the Supreme Court addressed two Arizona election measures: (1) its policy of not counting votes cast in the wrong precinct; and (2) and its law, HB 2023, allowing only postal workers, election officials, or a voter’s caregiver, family member, or household member to collect and deliver an early ballot on the voter’s behalf. Dividing 6 to 3 along ideological lines, the Court held that neither measure violates section 2 of the Voting Rights Act. Justice Alito wrote the forceful majority opinion. Justice Kagan wrote a fiery dissent.

In this post, I’ll summarize Alito’s majority opinion. (I’m quoting heavily but will not litter the summaries with lots of quotation marks and ellipses.)

In a follow-up, I’ll address Kagan’s dissent. I’ll simply note here that I’m surprised that the Court wasn’t unanimous in reversing the Ninth Circuit, even if under different approaches. Even the Biden DOJ informed the Court that “it does not disagree with the conclusion in [the Trump administration’s] brief that neither Arizona measure violates Section 2’s results test.”

Alito majority:

1. This case presents the first opportunity for the Court to consider how section 2 applies to generally applicable time, place, or manner voting rules. We decline to announce a test to govern all such rules and instead “identify certain guideposts that lead us to our decision.”

Section 2 provides that it is violated “if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” Thus, equal openness is the touchstone, and the totality of circumstances must be considered. We derive these considerations from this statutory command:

a. The size of the burden imposed by a challenged voting rule is highly relevant. Every voting rule imposes a burden of some sort.

b. The degree to which a voting rule departs from what was standard practice when section 2 was amended in 1982 is a relevant consideration.

c. The size of any disparities in a rule’s impact on members of different racial or ethnic groups is an important factor to consider.

d. Courts must consider the opportunities provided by a state’s entire system of voting when assessing the burden imposed by a challenged provision.

e. The strength of the state interests served by a challenged voting rule must be taken into account. One strong and entirely legitimate state interest is the prevention of fraud. Ensuring that every vote is cast freely, without intimidation or undue influence, is also a valid and important state interest.

2. Kagan’s dissent “would rewrite the text of section 2 and make it turn almost entirely on just one circumstance—disparate impact. That is a radical project.” Congress rejected the “freewheeling disparate-impact regime the dissent wants to impose on the States.” “According to the dissent, an interest served by a voting rule, no matter how compelling, cannot support the rule unless a State can prove to the satisfaction of the courts that this interest could not be served by any other means. Such a requirement has no footing in the text of §2 or our precedent construing it.” And it “would have the potential to invalidate just about any voting rule a State adopts.” Under Kagan’s approach, “any ‘statistically significant’ disparity—wherever that is in the statute—may be enough to take down even facially neutral voting rules with long pedigrees that reasonably pursue important state interests.”

3. In light of these principles, the Arizona measures do not violate section 2.

a. Arizona’s out-of-precinct rule enforces the requirement that voters who choose to vote in person on election day must do so in their assigned precincts. Having to identify one’s own polling place and then travel there to vote does not exceed the usual burdens of voting. The District Court’s uncontested findings show that the State made extensive efforts to reduce their impact on the number of valid votes ultimately cast.

Even if it is marginally harder for Arizona voters than for voters in other states to find their assigned polling places, Arizona offers other easy ways to vote. Any voter can ask to be placed on the permanent early voter list so that an early ballot will be mailed automatically. Voters may drop off their early ballots at any polling place, even one to which they are not assigned. And for nearly a month before election day, any voter can vote in person at an early voting location in his or her county.

The racial disparity in burdens allegedly caused by the out-of-precinct policy is small in absolute terms. A policy that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open.

Precinct-based voting furthers important state interests: It helps to distribute voters more evenly among polling places and thus reduces wait times. It can put polling places closer to voter residences than would a more centralized voting-center model. In addition, precinct-based voting helps to ensure that each voter receives a ballot that lists only the candidates and public questions on which he or she can vote, and this orderly administration tends to decrease voter confusion and increase voter confidence in elections. And the policy of not counting out-of-precinct ballots is widespread.

b. HB 2023 also passes muster. Arizonans who receive early ballots can submit them by going to a mailbox, a post office, an early ballot drop box, or an authorized election official’s office within the 27-day early voting period. They can also drop off their ballots at any polling place or voting center on election day, and in order to do so, they can skip the line of voters waiting to vote in person. Voters can also ask a statutorily authorized proxy—a family member, a household member, or a caregiver—to mail a ballot or drop it off at any time within 27 days of an election.

The plaintiffs were unable to provide statistical evidence showing that HB 2023 had a disparate impact on minority voters. Even if the plaintiffs had shown a disparate burden caused by HB 2023, the State’s justifications would suffice to avoid §2 liability. Limiting the classes of persons who may handle early ballots to those less likely to have ulterior motives deters potential fraud and improves voter confidence. That was the view of the bipartisan Commission on Federal Election Reform chaired by former President Jimmy Carter and former Secretary of State James Baker. HB 2023 tracks that Commission’s recommendation and is in fact even more permissive.

Prevention of fraud is not the only legitimate interest served by restrictions on ballot collection. Third-party ballot collection can lead to pressure and intimidation.

Law & the Courts

This Day in Liberal Judicial Activism—July 1

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(simpson33/iStock/Getty Images Plus)

1976—By a 5-4 vote, the Court rules in Singleton v. Wulff that two abortionists challenging limitations on Medicaid funding of abortion had standing to assert not only their own rights but also the rights of their patients. This expansion of third-party standing will fuel litigation against abortion regulations for decades to come.

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

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

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

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

Law & the Courts

Justice Kavanaugh Splits the Baby on Eviction Moratorium

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Supreme Court Justice Brett Kavanaugh (Doug Mills/Reuters Pool)

There is good news and bad news in yesterday’s SCOTUS ruling on the CDC’s eviction moratorium.

The good news is that a majority of the Court agreed on the merits with the stay applicants, the Alabama Association of Realtors, that the moratorium was unlawful. As Justice Kavanaugh put it, “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” and “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.”  So, to the extent the plaintiffs’ legal strategy here was to stop the CDC from using the pandemic as a rationale for micromanaging the American economy, they succeeded, and the moratorium will now end in July.

But that’s where the bad news begins.

Justice Kavanaugh’s method of delivering that conclusion was uninspired. Some of his critics accuse him of trying to be everything to everyone, at the expense of sound judging. I’ve written an entire book defending him, and I am hopeful that he is going to turn out to be a great justice, so it gives me no pleasure to say that his concurring opinion in this case is an unconvincing exercise in the kind of needle-threading that his critics accuse him of engaging in. I agree with Ilya Shapiro, who noted on Twitter that the opinion was “disingenuous” and that as a D.C. Circuit judge, Kavanaugh had done the opposite, holding that “movants can’t obtain [a] stay if they fail to show likelihood of success on the merits.” Yet here with the eviction moratorium, Shapiro pointed out that Kavanaugh wrote that the government was “entitled to a stay even though CDC went beyond statutory authority.”

So it’s a good outcome that the eviction moratorium was declared unlawful and that it will end in July. But the justices aren’t on the Court to reach outcomes that they like. They are there to be faithful agents of the rule of law, and to write clear, persuasive opinions that adhere to the law and the Constitution. Justice Kavanaugh has demonstrated time and time again that he is more than capable of doing that, so it is disappointing that in this case he decided to split the baby rather than let the law and the Constitution carry the day.

Law & the Courts

This Day in Liberal Judicial Activism—June 30

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(Caiaimage/Robert Daly/Getty Images)

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

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

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

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

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

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

Law & the Courts

Law Professor Michael Paulsen on Dobbs Abortion Case

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On Public Discourse, law professor (and occasional Bench Memos contributor) Michael Stokes Paulsen has published the first part in a two-part series on Dobbs v. Jackson Women’s Health Organization. Dobbs, you will recall, is the big abortion case on the Supreme Court’s docket for next Term—the case that ought to bring a decisive end to the illegitimate Roe/Casey regime that the Court has inflicted on the American people for nearly fifty years now.

Some excerpts from Paulsen’s piece:

Dobbs poses the enormously important question whether Roe and Casey, two of the worst constitutional decisions of all time, were wrongly decided and should now, finally, be overruled. On the merits, I submit, the answer must be yes….

In simplest terms, Roe created a constitutional right to abortion of the life of a living human fetus. That result, and Roe’s reasoning in support of it, are indefensible from a legal standpoint. No plausible argument from the constitutional text, no rule or principle fairly derived from its structure or internal logic or deducible from other propositions contained therein, and no credible argument from historical understanding or intention remotely supports the abortion right created in Roe. Roe v. Wade is simply a lawless decision. I know of no serious constitutional scholar who defends Roe’s result as a faithful interpretation of the Constitution’s language, understood according to its natural and original meaning, as understood at the time of its adoption, or as consistent with the original intent of its adopters in 1868….

In Casey, the Court, while nominally reaffirming Roe’s substantive due process holding, could not bring itself actually to embrace Roe’s reasoning as correct. Indeed, a majority of justices seemed to indicate they believed that the case was wrongly decided. Casey left Roe in place almost purely on the basis of the doctrine of stare decisis. In other words, the justices concluded the Court should stick to Roe “whether or not mistaken,” simply because it was a precedent on which the Court had staked its authority, and it might look bad if it were to reverse itself. In tomorrow’s essay, I will attack this craven, unprincipled reasoning. For now, my point is simpler: Roe is a relic of abandoned reasoning that almost no one—including the Court itself—any longer thinks correct on its own terms. If Roe retains any legitimacy at all, it is only because it is a precedent and for no reason moored to the text of the Constitution….

It is worth pausing briefly to reflect on just how radical the RoeCasey abortion-rights legal construct is. It is no cautious “balance” of interests. It is almost unreservedly pro-abortion. It adopts one of the most extremely lenient pro-abortion legal regimes anywhere in the world. It fails to recognize any legal rights of the unborn human fetal children, in any respect, at any stage of pregnancy. It does not recognize them as legal persons in their own right, entitled to the equal protection of the laws from private violence (a debatable but infinitely more plausible legal understanding of the common law and of the Constitution’s guarantees than is Roe’s creation of a constitutional right to abortion). Nor, short of that, does it recognize the unborn as members of the human species meriting protection by the state, whether or not they possess a constitutionally recognized legal “right to life” of their own. The living human fetus is treated, absurdly, as “potential life.”

Read the whole essay, and tomorrow’s installment on stare decisis as well.

Law & the Courts

Grimm Tidings on Certiorari in Bathroom Case

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(Jonathan Drake/Reuters)

Yesterday, the Supreme Court denied certiorari in Gloucester County School Board v. Grimm, a long-running case that questions whether Title IX of the Civil Rights Act requires schools to allow transgender students to use bathrooms of the opposite sex rather than accommodating them with alternative gender-neutral restrooms. Justices Thomas and Alito noted their dissent and, while they didn’t explain their reasoning, I agree with them that the Court should have taken this case.

If this case sounds familiar to you, that’s because the Court already granted cert once before to consider whether an Obama-era guidance letter could authoritatively interpret Title IX to require schools to allow bathroom use by transgender students of the opposite biological sex. The case was mooted when the Trump administration rescinded that letter, but in the process it returned the case to the Fourth Circuit which, in the absence of the guidance letter, compounded its legal error and based its conclusion forcing schools’ hands not only on a faulty interpretation of Title IX but on a sweeping and erroneous interpretation of the Equal Protection Clause of the 14th Amendment to the Constitution.

As with so many questions of certiorari, we are left with little more than speculation on what happened inside the black box of the justices’ conference room. All we know for sure is there were not four votes to take up the case (it’s even possible a third justice besides Thomas and Alito voted in favor and simply chose not to publicly note his or her dissent). A refusal to take up this case isn’t an endorsement of the Fourth Circuit’s ruling, either as a matter of legal precedent, or as a practical matter. After all, it may be that other justices felt the ruling was incorrect but that this simply wasn’t the right case to address the issue. Perhaps some justices thought a different topic would have been a preferable foray into the world of transgender law, such as locker room and shower usage or the problems created for women’s athletics by an influx of biological males.

Some justices may have been hoping that delay would allow the creation of a circuit split, often considered to be a prerequisite for Supreme Court review. Lack of adequate “percolation” is something even Justice Thomas pointed to recently as a reason not to take up a case striking down Indiana’s law prohibiting eugenic abortions. There is such a split in the offing, as the Eleventh Circuit is currently deciding whether to grant en banc review of a similar case coming out of Florida. Given the current makeup of that circuit, it’s likely a majority of the judges would agree with Judge Bill Pryor’s excellent dissent from the panel decision in that case, which ruled against a school board that barred a biological girl from using the boys’ restroom. Such an en banc ruling would both create a circuit split and would likely provide a compelling analysis of the issue from a textualist and originalist perspective that could provide a template for the high Court’s own consideration.

For my part, I don’t think the lack of a circuit split should dissuade the justices from hearing this case. The Court’s docket is at historically low levels. It heard only 58 oral arguments this year, while in the 1980s it regularly heard nearly 200 cases per term, hovered near 100 cases per term throughout the 1990s, and has been slipping ever since. The Court is at no risk of being overworked.

Furthermore, this isn’t an issue that is likely to fade away. On the contrary, demands for cross-sex bathroom use are only on the rise, and will escalate as many public schools finally return to in-person learning this fall. Even if the Court were to consider a case this term, it would barely settle the question in time for schools to apply its guidance for the fall of 2022. Additional delay leaves schools in limbo. Businesses, similarly, are left without clear guidance after last term’s textually bankrupt Bostock decision. Justice Alito’s prediction that that decision would be used to support rulings on bathroom usage and Title IX has been proven correct, despite Justice Gorsuch’s majority opinion insisting he was merely deciding a narrow statutory question.

It’s interesting that the justices who dissented from cert are the senior members of the conservative bloc. Their experience of decades on the Court may have taught them the difficulty in waiting for the elusive perfect case to decide an issue and the pitfalls of a “strategic” approach to grants of cert rather than taking the significant cases that arise, when they arise, and letting the chips fall where they may.

We may never know what happened in the justices’ black box. But I hope the Court will be willing to address this important issue expeditiously when it next has the opportunity rather than leaving national law in a state of confusion.

Law & the Courts

This Day in Liberal Judicial Activism—June 29

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(Timothy Epple/Getty Images)

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

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade.

The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation.

But it gets far worse. Consider, for example, these passages on stare decisis considerations:

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

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

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

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

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

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

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

2018—By a 5-2 vote, the Iowa supreme court rules (in Planned Parenthood v. Reynolds) that the state constitution requires that regulations of abortion be subject to strict judicial scrutiny and, applying such scrutiny, bars a state law that requires a 72-hour waiting period between the time a woman seeking abortion provides informed consent to the abortion and the time the abortion takes place.

2020—Presented an opportunity to begin making headway against the Supreme Court’s illegitimate Roe/Casey abortion regime, Chief Justice Roberts instead adopts a wooden view of stare decisis in June Medical Services v. Russo. While reiterating his belief that the Court’s 2016 ruling in Whole Woman’s Health v. Hellerstedt was “wrongly decided,” Roberts casts the decisive fifth vote against Louisiana’s admitting-privileges law for doctors.

From this and other recent votes by Roberts, the Left draws the lesson that bullying him pays big dividends.

Law & the Courts

Fodder for Ninth Circuit En Banc Call?

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Today’s unanimous Ninth Circuit panel ruling in Jones v. Ryan has plenty of ingredients that make me suspicious: (1) an opinion by Chief Judge Sidney Thomas, joined by two of his liberal colleagues; (2) granting habeas relief in a death penalty case on grounds of ineffective assistance of counsel; (3) overturning a denial of habeas relief by the district judge (Susan R. Bolton), a Clinton appointee; (4) finding that the prejudice prong of the habeas inquiry was met, based on counsel’s failure to obtain a defense mental-health expert for the penalty phase; (5) involving murders nearly three decades ago (in 1992); and (6) in a case in which the Supreme Court a decade ago vacated a previous ruling by Thomas granting habeas relief on grounds of ineffective assistance of counsel.

On the fourth point: The panel opines that if defense counsel had secured a mental-health expert, that expert “could have provided substantial evidence … that [Danny Lee] Jones suffered from mental illness,” including “(1) cognitive dysfunction …; (2) poly-substance abuse; (3) post-traumatic stress disorder; (4) attention deficit/hyperactivity disorder; (5) mood disorder; (6) bipolar depressive disorder; and (7) a learning disorder.” But, by the panel’s own account, the sentencing judge in fact found as mitigating factors that Jones “suffered from long-term substance abuse”; that he “was under the influence of drugs and alcohol at the time of the offense”; that he “had a chaotic and abusive childhood”; and that “his longstanding substance abuse problem may have been caused by genetic factors and aggravated by head trauma.”

Is there really a “reasonable probability” that the additional mental-health testing that the panel thinks trial counsel should have done in order to meet the threshold of competent representation would have changed the judge’s sentencing?