Law & the Courts

This Day in Liberal Judicial Activism—April 13

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Judge Rosemary Barkett.

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

Law & the Courts

This Day in Liberal Judicial Activism—April 12

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Rosemary Barkett and President Bill Clinton.

1990—In Cross v. State, Florida chief justice Rosemary Barkett dissents from the Florida supreme court’s ruling that probable cause existed for an arrest. After Cross consented to a search of her tote bag, police found a hard baseball-shaped object wrapped in brown tape inside a woman’s slip. Having seen cocaine packaged in this manner on “hundreds of occasions” in their combined 20 years of law-enforcement experience, they then arrested Cross. Barkett’s dissent incorporates the analysis of a lower court that did not even acknowledge, much less credit, the experience of the police officers.

2005—Sitting on the Eleventh Circuit (to which she was appointed by President Clinton in 1994), Rosemary Barkett issues a solo dissent from the Eleventh Circuit’s en banc ruling (in Johnson v. Governor of Florida)that Florida’s felon-disenfranchisement law does not violate the Equal Protection Clause. Barkett and another Clinton appointee also dissent from the ruling that the law does not violate the Voting Rights Act.

Law & the Courts

Aborting Judgment?

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The abortion clinics that sought a wholesale exemption from the Texas governor’s executive order, GA-09, postponing non-essential medical procedures through April 21 did not ask the Supreme Court to review the strong decision that the Fifth Circuit issued against them on Tuesday, April 7. But they now appear poised to ask the Court to intervene to override a temporary and partial administrative stay that the Fifth Circuit entered yesterday (Friday, April 10) to allow it to consider a mandamus petition and emergency stay motion that Texas filed regarding a new TRO (temporary restraining order) that the district court entered on remand on Thursday, April 9. This strikes me as a very odd occasion to expect the Court to intrude on the process below.

The Fifth Circuit in its opinion on Tuesday had contemplated that the abortion clinics might seek limited relief on the ground that certain applications of the executive order might constitute an undue burden under Supreme Court precedent. It emphasized that a hearing would allow the district court to make “targeted findings, based on competent evidence, about the effects of GA-09 on abortion access,” and it spelled out how the emergency framework of the Court’s decision in Jacobson v. Commonwealth of Massachusetts (1905) would apply to the undue-burden analysis.

But when the abortion clinics on Wednesday filed their new request for a TRO—“supported,” as the Fifth Circuit notes, “only by one additional declaration”—the district court did not even allow Texas to file a brief or to submit evidence in opposition to the TRO request. Instead, it granted the abortion clinics the TRO they requested, with no evident effort to abide by the Fifth Circuit’s analysis.

In its order yesterday, the Fifth Circuit set a highly accelerated schedule for briefing on Texas’s filings: response from abortion clinics by this evening on the emergency stay motion, reply by Texas by Monday afternoon, response from abortion clinics by Tuesday afternoon on the mandamus petition, and reply by Texas by Wednesday afternoon. Further, the Fifth Circuit excluded from its administrative stay the portion of the TRO that applied to “any patient who, based on the treating physician’s medical judgment, would be past the legal limit for an abortion in Texas—22 weeks LMP—on April 22, 2020. In other words, the district court’s TRO currently prevents Texas from enforcing GA-09 against an abortion clinic with respect to any such patient.

Rather than have parallel accelerated briefing going on in the Fifth Circuit and in the Supreme Court, it would seem far more sensible to let the Fifth Circuit, after hearing from both sides, rule on the merits, with any possible review by the Supreme Court taking place thereafter.

Law & the Courts

This Day in Liberal Judicial Activism—April 11

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Judicial Nominee Wendy Vitter (Screengrab via Politico Watch)

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

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

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

Law & the Courts

This Day in Liberal Judicial Activism—April 9

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(Kuzma/Dreamstime)

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

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

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

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

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

Law & the Courts

Re: Fifth Circuit Ruling that Abortion Is Not Exempt from Pandemic Order

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From some media accounts of yesterday’s Fifth Circuit ruling, you might be misled into thinking that Texas governor Greg Abbott’s executive order, GA-09, targets abortion. But as the Fifth Circuit majority explains (my underlining):

GA-09 applies to a whole host of medical procedures and regulates abortions evenhandedly with those other procedures. The order itself does not even mention abortion—or any other particular procedure—at all. Instead, it refers broadly to “all surgeries or procedures” that meet its criteria. Respondents point to no evidence that GA-09 applies any differently to abortions than to any other procedure. Nor do they cite any comparable procedures that are exempt from GA-09’s requirements. On the other hand, Petitioners produce evidence that myriad other procedures are affected just as abortions are. For example, Petitioners offer a declaration from Dr. Timothy Harstad, M.D., who testified that some cosmetic, bariatric, orthopedic, and gynecologic procedures “are being suspended” alongside abortions. Petitioners also point to the fact that the Centers for Medicare & Medicaid Services have recommended postponing several other critical procedures, including endoscopies and colonoscopies, and even some oncological and cardiovascular procedures for low-risk patients. This evidence undermines Respondents’ contention that GA-09 exploits the present crisis to ban abortion.

As the majority points out, GA-09 “only delays certain non-essential abortions,” and it “includes an emergency exception for the mother’s life and health, based on the determination of the administering physician.” In short, far from targeting abortion, it treats abortion just like any other medical procedure.

Might delay present some additional risk, short of the emergency exception, to women who seek abortion? Sure—just as postponement of “critical procedures, including endoscopies and colonoscopies, and even some oncological and cardiovascular procedures” entails some additional risk to the patients seeking them. And just as Henning Jacobson, the plaintiff in Jacobson v. Massachusetts, faced some additional risk from the smallpox vaccination he objected to. But what possible reason is there to believe that abortion must be elevated above all other medical procedures? As the panel majority explains, Roe and Casey don’t compel that result.

Law & the Courts

This Day in Liberal Judicial Activism—April 8

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Judge Stephen Reinhardt

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

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

2015—Shirley, you can’t be serious!

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

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

Law & the Courts

Fifth Circuit: Abortion Is Not Exempt from Texas Emergency Pandemic Order Postponing Non-Essential Medical Procedures

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In an important ruling today, a divided panel of the Fifth Circuit held that a district court wrongly exempted all abortion procedures from the Texas governor’s order postponing non-essential medical procedures until April 21. Judge Stuart Kyle Duncan authored the majority opinion, which Judge Jennifer Elrod joined. Judge James Dennis dissented.

Here is the majority’s opening summary of its ruling:

To preserve critical medical resources during the escalating COVID-19 pandemic, on March 22, 2020, the Governor of Texas issued executive order GA-09, which postpones non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. Reading GA-09 as an “outright ban” on pre-viability abortions, on March 30 the district court issued a temporary restraining order against GA-09 as applied to abortion procedures. At the request of Texas officials, we temporarily stayed the TRO while considering their petition for a writ of mandamus directing vacatur of the TRO. We now grant the writ.

The “drastic and extraordinary” remedy of mandamus is warranted for several reasons.

First, the district court ignored the framework governing emergency public health measures like GA-09. See Jacobson v. Commonwealth of Massachusetts (1905). “[U]nder the pressure of great dangers,” constitutional rights may be reasonably restricted “as the safety of the general public may demand. That settled rule allows the state to restrict, for example, one’s right to peaceably assemble, to publicly worship, to travel, and even to leave one’s home. The right to abortion is no exception. See Roe v. Wade (1973) (citing Jacobson); Planned Parenthood v. Casey (1992) (same); Gonzales v. Carhart (2007) (same).

Second, the district court’s result was patently wrong. Instead of applying Jacobson, the court wrongly declared GA-09 an “outright ban” on pre-viability abortions and exempted all abortion procedures from its scope. The court also failed to apply Casey’s undue-burden analysis and thus failed to balance GA-09’s temporary burdens on abortion against its benefits in thwarting a public health crisis.

Third, the district court usurped the state’s authority to craft emergency health measures. Instead, the court substituted its own view of the efficacy of applying GA-09 to abortion. But “[i]t is no part of the function of a court” to decide which measures are “likely to be the most effective for the protection of the public against disease.” Jacobson.

In sum, given the extraordinary nature of these errors, the escalating spread of COVID-19, and the state’s critical interest in protecting the public health, we find the requirements for issuing the writ satisfied. See Cheney v. U.S. Dist. Court for Dist. of Columbia (2004).

Here is an extended excerpt from the majority’s discussion of Jacobson (my boldfacing):

In Jacobson, the Supreme Court considered a claim that the state’s  compulsory vaccination law—enacted amidst a growing smallpox epidemic in  Cambridge, Massachusetts—violated the defendant’s Fourteenth Amendment  right “to care for his own body and health in such way as to him seems best.”  The Court rejected this claim. Famously, it explained that the “liberty secured by the Constitution . . . does not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from restraint.” Rather, “a community has the right to protect itself against an epidemic of disease which threatens the safety of its members.” In describing a state’s police power to combat an epidemic, the Court explained:

“[I]n every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.” …

To be sure, individual rights secured by the Constitution do not disappear during a public health crisis, but the Court plainly stated that rights could be reasonably restricted during those times. Importantly, the Court narrowly described the scope of judicial authority to review rights-claims under these circumstances: review is “only” available if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law. Elsewhere, the Court similarly described this review as asking whether power had been exercised in an “arbitrary, unreasonable manner” or through “arbitrary and oppressive” regulations.

Jacobson did emphasize, however, that even an emergency mandate must include a medical exception for “[e]xtreme cases.” Thus, the vaccination mandate could not have applied to an adult where vaccination would exacerbate a “particular condition of his health or body.” In such a case, the judiciary would be “competent to interfere and protect the health and life of the individual concerned.” At the same time, Jacobson disclaimed any judicial power to second-guess the state’s policy choices in crafting emergency public health measures: “Smallpox being prevalent and increasing at Cambridge, the court would usurp the functions of another branch of government if it adjudged, as matter of law, that the mode adopted under the sanction of the state, to protect the people at large was arbitrary, and not justified by the necessities of the case.”

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive. At the same time, however, courts may not second-guess the wisdom or efficacy of the measures.

Jacobson remains good law. See, e.g., Kansas v. Hendricks (1997) (recognizing Fourteenth Amendment liberties may be restrained even in civil contexts, relying on Jacobson). And, most importantly for the present case, nothing in the Supreme Court’s abortion cases suggests that abortion rights are somehow exempt from the Jacobson framework. Quite the contrary, the Court has consistently cited Jacobson in its abortion decisions.…

By all accounts, then, the effect on abortion arising from a state’s emergency response to a public health crisis must be analyzed under the standards in Jacobson. Respondents all but concede this point, offering no discernible argument that Jacobson has been superseded or is otherwise inapplicable during a public health crisis such as the COVID-19 pandemic. The district court, however, failed to recognize Jacobson’s long- established framework. While acknowledging that “Texas faces it[s] worst public health emergency in over a century,” the court treated that fact as entirely irrelevant. Indeed, the court explicitly refused to consider how the Supreme Court’s abortion cases apply to generally-applicable emergency health measures, saying it would “not speculate on whether the Supreme Court included a silent ‘except-in-a-national-emergency clause’ in its previous writings on the issue.”

That analysis is backwards: Jacobson instructs that all constitutional rights may be reasonably restricted to combat a public health emergency. We could avoid applying Jacobson here only if the Supreme Court had specifically exempted abortion rights from its general rule. It has never done so. To the contrary, the Court has repeatedly cited Jacobson in abortion cases without once suggesting that abortion is the only right exempt from limitation during a public health emergency. In sum, by refusing even to consider Jacobson—the controlling Supreme Court precedent that squarely governs judicial review of rights-challenges to emergency public health measures—the district court “clearly and indisputably erred.”

Moreover, the district court’s refusal to acknowledge or apply Jacobson’s legal framework produced a “patently erroneous” result. Under Jacobson, the district court was empowered to decide only whether GA-09 lacks a “real or substantial relation” to the public health crisis or whether it is “beyond all question, a plain, palpable invasion” of the right to abortion. On the record before us, the answer to both questions is no, but the district court did not even ask them. Instead, the court bluntly declared GA-09 an “outright ban” on pre-viability abortions and exempted all abortion procedures, in whatever circumstances, from the scope of this emergency public health measure. That was a patently erroneous result.

The first Jacobson inquiry asks whether GA-09 lacks a “real or substantial relation” to the crisis Texas faces. The answer is obvious: the district court itself conceded that GA-09 is a valid emergency response to the COVID-19 pandemic. The court recognized, as does everyone involved, that Texas faces a public health crisis of unprecedented magnitude and that GA-09 “does not exceed the governor’s power to deal with the emergency.”

Our own review of the record easily confirms that conclusion. GA-09 is supported by findings that (1) “a shortage of hospital capacity or personal protective equipment would hinder efforts to cope with the COVID-19 disaster,” and (2) “hospital capacity and personal protective equipment are being depleted by surgeries and procedures that are not medically necessary to correct a serious medical condition or to preserve the life of a patient.” The order also references, and reinforces, the Governor’s prior executive order, GA-08, “aimed at slowing the spread of COVID-19.” Accordingly, GA-09 instructs licensed health care professionals and facilities to postpone non-essential surgeries and procedures until 11:59 p.m. on April 21, 2020. For their part, Respondents appear to concede the validity of GA-09 as a general matter: they recognize that Texas faces an “unprecedented public health crisis” and that “[g]overnment officials and medical professionals expect a surge of infections that will test the limits of a health care system already facing a shortage of PPE.”

To be sure, GA-09 is a drastic measure, but that aligns it with the numerous drastic measures Petitioners and other states have been forced to take in response to the coronavirus pandemic. Faced with exponential growth of COVID-19 cases, states have closed schools, sealed off nursing homes, banned social gatherings, quarantined travelers, prohibited churches from holding public worship services, and locked down entire cities. These measures would be constitutionally intolerable in ordinary times, but are recognized as appropriate and even necessary responses to the present crisis. So, too, GA-09.

As the state’s infectious disease expert points out, “[g]iven the risk of transmission in health care settings” there is “a sound basis for limiting all surgeries except those that are immediately medically necessary so as to prevent the spread of COVID 19.” In sum, it cannot be maintained on the record before us that GA-09 bears “no real or substantial relation” to the state’s goal of protecting public health in the face of the COVID-19 pandemic.

The second Jacobson inquiry asks whether GA-09 is “beyond question, in palpable conflict with the Constitution.” The district court, while not framing the question in those terms, evidently thought the answer was yes. But the court reached that conclusion only by grossly misreading GA-09 as an “outright ban” on all pre-viability abortions. Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis. As we explain below, however, Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.

To begin with, the district court’s central (and only) premise—that GA-09 is an “outright ban” on all pre-viability abortions—is plainly wrong. The court reasoned that GA-09 was by definition invalid in light of our decisions in Jackson II and Jackson III, which recognize states cannot ban pre-viability abortions. But GA-09 only delays certain non-essential abortions. GA-09 thus differs from the regulations in Jackson II and III in three key respects. First, GA-09 expires on April 21, 2020, three weeks after its effective date. Second, GA-09 includes an emergency exception for the mother’s life and health, based on the determination of the administering physician. Third, GA-09 contains a separate exception for “any procedure” that, if performed under normal clinical standards, “would not deplete the hospital capacity or the personal protective equipment needed to cope with the COVID-19 disaster.”

In sum, based on this record we conclude that GA-09—an emergency measure that postpones certain non-essential abortions during an epidemic— does not “beyond question” violate the constitutional right to abortion.

The majority also explained that the “broad sweep” of the district court’s TRO distinguished this case from other recent rulings.

(For ease of reading, I have simplified some citations and omitted others, and I have also broken up some paragraphs.)

 

 

Law & the Courts

This Day in Liberal Judicial Activism—April 7

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1967: Thurgood Marshall is sworn in as the first black justice of the United States Supreme Court. The great-grandson of a slave, Marshall had argued before the court as chief counsel for the NAACP in the pivotal Brown v. Board of Education case in 1954, a major catalyst for the civil rights movement. Marshall would make civil rights the focus of his tenure before retiring in 1991.

    1969—Justice Thurgood Marshall’s majority opinion in Stanley v. Georgia declares that the First Amendment forbids criminalizing the possession of concededly obscene material. Marshall blithely distinguishes away the Court’s previous categorical statements that obscenity is not protected by the First Amendment. Stanley, Marshall grandiosely proclaims, is asserting “the right to satisfy his intellectual and emotional needs in the privacy of his own home.” Yep, that carefully captures what viewing obscenity is all about. (Three justices, including Brennan, decline to join Marshall’s opinion and instead separately find a Fourth Amendment basis for vacating Stanley’s conviction.)

1969—In majority opinions by Justice Brennan in Kirkpatrick v. Preisler and Wells v. Rockefeller, the Supreme Court, building on its 1964 ruling in Wesberry v. Sanders (see This Day for February 17), rules that the states, in crafting their congressional redistricting plans, must aim to “achieve precise mathematical equality” in the populations of congressional districts. It rejects the argument that there is any “fixed numerical or percentage population variance small enough to be considered de minimis.”

In dissent, Justice Harlan laments that the Court “transforms a political slogan [‘one man, one vote’] into a constitutional absolute”:

Strait indeed is the path of the righteous legislator. Slide rule in hand, he must avoid all thought of county lines, local traditions, politics, history, and economics, so as to achieve the magic formula: one man, one vote….

[I]nsistence on mathematical perfection does not make sense even on its own terms. Census figures themselves are inexact; our mobile population rapidly renders them obsolete; large groups of ineligible voters are unevenly distributed throughout the State.

Harlan also presciently observes that “the Court’s exclusive concentration upon arithmetic blinds it to the realities of the political process…. The fact of the matter is that the rule of absolute equality is perfectly compatible with ‘gerrymandering’ of the worst sort.”

Law & the Courts

This Day in Liberal Judicial Activism—April 6

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Justice Harry Blackmun.

1994—Justice Harry Blackmun announces his impending retirement after 24 years on the Court. His majority opinion in Roe v. Wade (1973) is rivaled only by Dred Scott as the worst opinion in Supreme Court history.

As one of Blackmun’s former clerks, Edward Lazarus (who described himself as “someone utterly committed to the right to choose [abortion]” and as “someone who loved Roe’s author like a grandfather”), aptly put it, “As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible.” Also from Lazarus: “Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the [decades] since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms.” (My June 2005 Senate testimony (in parts 1 and 2) presents additional criticisms, including from other supporters of legal abortion, and explains why abortion policy needs to be restored to its rightful place in the democratic political processes.)

2016—In an Atlantic essay, lefty law professor Erwin Chemerinsky salivates over the prospect that President Obama’s hoped-for appointment of Merrick Garland to the Supreme Court would create a liberal majority that “likely would overrule” the Court’s landmark Second Amendment ruling in D.C. v. Heller and that would move the Court’s decisions dramatically leftward on a broad range of issues, including preventing any regulation of abortion, entrenching racial quotas, eliminating First Amendment protections against campaign-finance restrictions, abolishing the death penalty, and extravagantly overreading the Establishment Clause (farewell, school choice, and goodbye, In God We Trust).

And all of that is before Chemerinsky even begins briefly sketching his “dream” agenda.

Alas for Chemerinsky’s dreams, Senate Republicans will succeed in blocking action on Garland’s nomination, and Donald Trump will defeat Hillary Clinton in the presidential election seven months later.

Law & the Courts

This Day in Liberal Judicial Activism—April 5

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An aerial view of the Amazon river, January 18, 2018. (Jaime Saldarriaga/Reuters)

2018—If the transnationalists have their way, look for a ruling like this to come our way soon: The Colombia Supreme Court rules that the Amazon river is a rights-bearing entity and that environmental activists can sue on its behalf to enforce its rights. The court orders Colombian governmental authorities to formulate a series of action plans to combat deforestation and climate change.

Law & the Courts

This Day in Liberal Judicial Activism—April 4

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Justice William O. Douglas

1939—Two weeks after President Roosevelt nominates SEC chairman (and former Yale law professor) William O. Douglas to the Supreme Court, the Senate confirms the nomination by a 62-4 vote. On the Court from 1939 until 1975, Douglas will become the longest-misserving justice in history.

2017—“The goalposts have been moving over the years,” asserts the en banc Seventh Circuit majority in Hively v. Ivy Tech Community College. Overriding its own precedent and contradicting nine other circuits, the majority holds that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII.

In a separate concurring opinion, Judge Richard A. Posner, advocating a “form of [statutory] interpretation” that he labels “judicial interpretive updating,” states that he “would prefer to see us acknowledge openly that today we, who are judges rather than members of Congress, are imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.”

In her dissent, Judge Diane S. Sykes, joined by two colleagues, explains that “we do not sit as a common-law court free to engage in ‘judicial interpretive updating,’ as Judge Posner calls it, or to do the same thing by pressing hard on tenuously related Supreme Court opinions, as the majority does.”

Law & the Courts

Who is Judge Justin Walker?

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(Pixabay)

Judge Justin Walker is President Trump’s nominee to the U.S. Court of Appeals for the D.C. Circuit. Walker is currently a federal district judge in the Western District of Kentucky. President Trump also nominated Walker to his current post, and he was confirmed by the Senate in October 2019.

If confirmed to the D.C. Circuit, Walker would follow in the footsteps of other judges nominated to the prestigious court from outside Washington, D.C., including David Sentelle from North Carolina (appointed by president Ronald Reagan), Karen Henderson from North Carolina (appointed by president George H.W. Bush), and Janice Rogers Brown from California (appointed by president George W. Bush).

Walker was raised in Louisville, Kentucky by his single mother who owned and ran a stationery store. Neither Walker’s mother nor his grandparents attended college. Growing up, Walker attended Catholic school for 13 years, graduating from Louisville St. Xavier High School. He went on to attend Duke University, where he majored in political science and was a member of Phi Beta Kappa, graduating summa cum laude. Walker similarly excelled at Harvard Law School, where he earned magna cum laude honors and served as the notes editor of the Harvard Law Review. Walker was also a member of the editorial board for the Journal of Law & Public Policy, a leading journal for conservative and libertarian scholarship. He also served on the executive board of the Harvard chapter of The Federalist Society.

After law school, Walker clerked for Judge Brett Kavanaugh on the D.C. Circuit (2010-2011) and Justice Anthony Kennedy on the Supreme Court (2011-2012). Both before and after his clerkships, Walker worked as an associate at Gibson Dunn LLP in Washington, D.C. His practice focused on complex commercial litigation and appeals, and Walker assisted in the drafting of five briefs in cases before the U.S. Supreme Court.

In 2013, Walker moved home to Kentucky, where he maintained a solo law practice before joining the faculty of the University of Louisville Brandeis School of Law in 2015. At Brandeis Law School, Walker focused his research on separation of powers issues, federal courts, administrative law, and national-security law. Walker was a co-founder of the Ordered Liberty Program at Brandeis Law School — a fellowship devoted to the study of “federalism, separation of powers, originalism, natural rights, and the common good.”

Walker’s scholarship has been published in academic journals such as the George Washington Law Review, the University of Cincinnati Law Review, and the West Virginia Law Review. In 2018, in the wake of the firing of James Comey, Walker argued against making the FBI an independent agency because such unchecked power could pose a threat to civil liberties. Walker’s most recent academic article examines the problems with the administrative state from an originalist perspective, particularly with respect to the lack of democratic accountability.

Walker was a staunch supporter of Brett Kavanaugh during his nomination to the Supreme Court. Walker wrote in National Review that Kavanaugh was a “a steadfast and fearless supporter of religious liberty.” Likewise, in The Federalist, Walker described Kavanaugh as having “the strongest, most consistent, most fearless record of constitutional conservatism of any federal court of appeals judge in the country.”

Before he became a district court judge, Walker served for six years as the volunteer executive director and legal counsel for the Global Game Changers Student Empowerment Program, a non-profit for underserved elementary school children. Walker also supervised a program that taught writing skills to underserved high school juniors at a public high school in Louisville.

In 2011, Walker was named to Forbes’ “30 Under 30” list for law and public policy. He has also been an active member of the Federalist Society, serving on the executive board of the Louisville chapter before his confirmation to the district court.

Judge Walker is married and has a daughter.

Law & the Courts

Rejecting Originalism from Either Side of the Aisle Does Not Serve the Common Good

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A gavel sits on the chairman’s dais in the U.S. House Judiciary Committee hearing room on Capitol Hill in Washington, U.S., June 14, 2019 (Jonathan Ernst/Reuters)

Harvard Law professor Adrian Vermeule has written an essay in The Atlantic that argues for doing away with originalism in favor of “a robust, substantively conservative approach to constitutional law and interpretation.” He calls this alternative approach “common-good constitutionalism,” the controlling principle of which is “that government helps direct persons, associations, and society generally toward the common good, and that strong rule in the interest of attaining the common good is entirely legitimate.”

More specifically, “Unions, guilds and crafts, cities and localities, and other solidaristic associations” and the traditional family “will benefit from the presumptive favor of the law.” Vermeule’s approach would do away with what he calls “the libertarian assumptions central to free-speech law and free-speech ideology” and to “property rights and economic rights.” It would “favor a powerful presidency ruling over a powerful bureaucracy, the latter acting through principles of administrative law’s inner morality.”

Where to begin? Well, part of Vermeule’s problem is the premise with which he begins — that originalism “has now outlived its utility.” During the 1970s and 1980s, he argues, that approach to constitutional interpretation “enabled conservatives to oppose constitutional innovations by the Warren and Burger Courts” in a “hostile environment.” But “[t]he hostile environment that made originalism a useful rhetorical and political expedient is now gone.”

There are two problems with this, without even getting into the question of how much hostility toward conservatives endures today. First, no argument about constitutional interpretation should rest on its utility and political expediency. That is the stuff of results-oriented judging. Originalism is not about expediency, and expediency is no excuse for conjuring up alternative theories of interpretation.

Second, while Vermeule is correct that much of what crystallized under the label “originalism” in recent times was a reaction to the excesses of the Warren and Burger Courts, he is wrong to dismiss this approach to the Constitution as mere reaction to a particular era. Originalism did not begin with Robert Bork and Antonin Scalia. In his Commentaries on the Constitution of the United States, Justice Joseph Story asserted, “The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms and the intention of the parties.” Further, “the intention of a law is to be gathered from the words, the context, the subject-matter, the effects and consequence, or the reason and spirit of the law.” A century later, Solicitor General (and future justice) Robert Jackson looked at “the terms of the Constitution” and “the historic experience of the Framers” in criticizing a line of cases that used the Due Process Clause to strike down state laws regulating business.

Originalism respects the straightforward command that federal courts adhere to the text of the very instrument that created them. That is common sense. Yet Vermeule admits the theory he advances under the “common-good” label “is not tethered to particular written instruments of civil law or the will of the legislators who created them.” It draws from tradition that includes “the law of nations” and “principles of objective natural morality.” This calls to mind some of the Supreme Court’s activist decisions selectively employing international law (e.g., Roper v. Simmons (2005)) and, as Vermeule admits, the argument of liberals like Ronald Dworkin that judges should read a set of moral commitments into the Constitution. But in this case, the use of these extraconstitutional sources would be conservative rather than liberal.

Vermeule also seems to come full circle with liberals who believe that the federal government should be permitted to do anything it wants in the amorphously defined public interest, except here with less protection of individual liberty. (Though unions, local governments, and “other solidaristic associations” would enjoy some level of protection, perhaps supplanting the individual.)

This paradigm disregards both federalism and the separation of powers, which is easy to do when the text of law and the will of elected legislators are not controlling. It would permit the spectacle of judges and an enlarged bureaucracy performing roles the Constitution assigns to other branches of the federal government or leaves to the states. The reality is that the structural Constitution, having proven to be essential to the preservation of liberty, prevents the oppression that comes with unchecked power, however much its agents preach the “common good” as their intention.

Instead of expecting courts to be instruments of policy preferences, those preferences should be pursued through the elected branches of government, with the courts applying the Constitution as a necessary backstop. That is how judges truly serve the common good.

Thirty years ago, Judge Bork wrote The Tempting of America, which championed originalism and illustrated the unfortunate politicization of the courts. That politicization occurred most brazenly in the service of left-liberalism. All these years later, the temptation remains. The pitfalls of straying from originalism are real, and they are not limited to liberals.

Law & the Courts

This Day in Liberal Judicial Activism—April 3

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The U.S. Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

2008—Some nine months after his nomination to the Fourth Circuit, federal district judge Robert J. Conrad has still not been afforded a confirmation hearing, even though he received the ABA judicial-evaluations committee’s unanimous highest rating of “well qualified” and enjoys the strong support of both home-state senators. Trying to defend his obstruction of Conrad, Senate Judiciary Committee chairman Patrick Leahy accuses Conrad of having made “anti-Catholic comments about a nun.” In fact, Conrad, himself a Catholic, had in 1999 criticized a nun for “the near total contempt [she] displayed for the Roman Catholic Church.” Conrad’s nomination will expire months later without his ever receiving a hearing.

2009—The lawless judicial attack on traditional marriage and on representative government continues, as the Iowa supreme court rules unanimously (in Varnum v. Brien) that a “state statute limiting civil marriage to a union between a man and a woman violates the equal protection clause of the Iowa Constitution.”

Central to the court’s ruling is its assertion that “equal protection can only be defined by the standards of each generation.” An intelligent citizen not attuned to the deceptive rhetoric of living-constitutionalist judges would sensibly imagine that that proposition would mean that the court would defer to the standard of the current generation of Iowans reflected in the statute that Iowa adopted in 1998. But what the court really means is that each generation of judges is free to expand the meaning of equal protection according to its own subjective standards—and to shrink the realm of representative government. Or, as the court puts it in activist gobbledygook:

“The point in time when the standard of equal protection finally takes a new form is a product of the conviction of one, or many, individuals that a particular grouping results in inequality and the ability of the judicial system to perform its constitutional role free from the influences that tend to make society’s understanding of equal protection resistant to change.”

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