Law & the Courts

North Carolina Supreme Court’s Gerrymandered Reasoning


In an extraordinary ruling last Friday (in North Carolina NAACP v. Moore), the North Carolina supreme court ruled by a 4-to-3 vote that two state constitutional amendments adopted by North Carolina voters in 2018 can be invalidated because the two houses of the state legislature that proposed them included districts that were racially gerrymandered. The majority’s ruling itself strikes me as a blatant gerrymander, as it reconfigures established doctrine in seeming pursuit of a desired result.

The case arises from the state legislative redistricting plan that North Carolina adopted in 2011. That plan increased the number of majority African-American districts in the house chamber from nine to thirty-two and increased the number of majority African-American districts in the state senate from zero to nine. (I assume that doing so was part of a broader effort to improve the electoral battlefield for Republican candidates.)

To make a very long story short:

In earlier litigation known as Covington v. North Carolina, a federal district court ruled that this redistricting plan violated the federal Equal Protection Clause by creating twenty-eight racially gerrymandered districts. After the Supreme Court vacated its initial remedial order, the district court reluctantly determined in 2017 that it could not order a special election for seats in those districts but instead had to allow those seats to be up, as usual, in the general election in November 2018.

In mid-2018, the state legislature proposed six constitutional amendments for the voters to adopt or reject. The two amendments at issue in this case are the Voter ID Amendment and the Tax Cap Amendment. Both were approved by voters at the general election in November 2018. The Voter ID Amendment generally requires voters who vote in person to provide photo identification. The Tax Cap Amendment reduces the highest state income tax rate from 10% to 7%.

At this same general election in November 2018, Anita Earls, who represented the plaintiffs in the Covington litigation, was elected an associate justice of the state supreme court. Earls, as it happens, was the author of last Friday’s majority ruling (and provided the decisive fourth vote).

At issue in Friday’s ruling was whether the supreme court has authority to void the Voter ID Amendment and the Tax Cap Amendment on the ground that the two houses of the state legislature that jointly proposed them to the voters had legislators elected from unconstitutionally racially gerrymandered districts. To be clear: It is not contested in this case that the houses had legislators elected from unconstitutionally racially gerrymandered districts. (The Covington litigation established that they did.) What is at issue is whether North Carolina’s courts can determine that the legislative authority to propose state constitutional amendments for the people to vote on is thereby impaired and that amendments that the people voted to adopt are invalid.

Justice Earls’s majority opinion sensibly presents three categories of individuals who purport to hold elected offices. One category consists of de jure officers, those who in fact have a legal right to the office. A second consists of de facto officers, those who occupy an office under some color of right but whose title is not in fact good in law. As Earls acknowledges, under established doctrine such individuals “may exercise the power attendant to that office in ways that bind third parties and the public.” The third category consists of usurpers, those who take possession of an office without any authority.

Earls rejects the NAACP’s argument that a de facto officer becomes a usurper once it is finally determined that the person lacks a valid claim to the office. She also concludes that the legislators elected to racially gerrymandered seats “remained de facto officers” after the seats had been finally determined to have been unlawfully gerrymandered. But after presenting the three established categories of legislators who purport to hold elected seats, she concocts a fourth hybrid category: de facto officers who can exercise some but not all of the power of legislators.

Under Earls’s gerrymandered reasoning, legislators elected to unconstitutionally gerrymandered seats have their full power as legislators as to “ordinary legislation” but not as to legislation proposing constitutional amendments to the people for a vote. As to the latter, a court can and must first determine “whether the votes of legislators who were elected as a result of unconstitutional gerrymandering were potentially decisive.” That threshold inquiry is easily satisfied for the Voter ID Amendment and the Tax Cap Amendment.

Earls invents three further standards that must then be applied: (1) “whether there is a substantial risk that a challenged constitutional amendment will immunize legislators from democratic accountability going forward”; (2) “whether there is a substantial risk that a challenged constitutional amendment will … perpetuate the ongoing exclusion of a category of voters from the political process”; and (3) whether a challenged constitutional amendment embodies “policy choices that intentionally discriminate against a particular category of citizens who were also discriminated against in the drawing of the districts from which the legislators who initiated the amendment process were elected.” Her majority opinion then remands application of these vague and malleable standards to the trial court, which, having previously ruled in favor of the NAACP’s challenge, will surely have no difficulty doing so again.

The dissent explains—compellingly, in my view—that precedent and sound legal reasoning dictate that the legal question is not justiciable in the courts in the first place and that, if it is, that the legislators had authority to act. As Justice Phil Berger Jr. writes for the three dissenters, “A government official either has the authority to act, or he does not.” None of the “recognized legal distinctions … have ever limited or hybridized legislative power.” Berger argues that the legislators from gerrymandered districts are best understood as de jure officers, but that if they are instead (as Earls finds) de facto officers, they necessarily possessed full de facto authority. He further points out that “no court, federal or state, [had ever before] concluded that a legislative body which has de facto authority at a minimum should undergo individual ex post evaluations of constitutionally prescribed actions.” Indeed, even the arch-liberal Justice William Douglas acknowledged in Baker v. Carr (1962) that a “legislature, though elected under an unfair apportionment scheme, is nonetheless a legislature empowered to act.”

By her ruling, Justice Earls effectively assures the plaintiff in this case part of the relief that attorney Earls was unable to win for her clients in the Covington litigation. By remanding the matter to the trial court, she also ensures that the final ruling in this litigation against the Voter ID Amendment and the Tax Cap Amendment won’t come until after this November’s election, when voters will no longer be paying much attention.

Having highlighted Earls’s apparent conflict of interest, I will also note that Justice Berger is the son of Philip Berger, who as president pro tem in the state senate is one of two named defendants in the litigation. In addition, Justice Tamara Barringer (also one of the dissenters) served in the state senate when it voted to propose the Voter ID Amendment and the Tax Cap Amendment. (I assume that she voted yes on both proposals, but in a few quick searches I haven’t been able to confirm that.) The participation of each of these three justices was apparently a matter of controversy.

Law & the Courts

This Day in Liberal Judicial Activism—August 22


2014Justice Ruth Bader Ginsburg is becoming quite a Chatty Cathy. In a wide-ranging interview, Ginsburg somehow sees fit to offer her views on all sorts of matters. She reveals, for example, that she assigned the dissent in Schuette v. Coalition to Defend Affirmation Action to Justice Sotomayor in order to accommodate Sotomayor’s desire to “quell” the “doubts” that some folks on the Left were having about Sotomayor’s “views on affirmative action.” And at the very time that pending certiorari briefs in cases challenging state marriage laws are debating what the Court’s ruling in United States v. Windsor signifies for those cases, Ginsburg volunteers her view that the “main theme” in Justice Kennedy’s previous rulings involving gay rights is “equal dignity,” not federalism. 

Law & the Courts

This Day in Liberal Judicial Activism—August 20


1985—Extending an error it made two years earlier, the Sixth Circuit (in Policy v. Powell Pressed Steel Co.) distorts ordinary contract principles as it construes a collective bargaining agreement to confer lifetime health-insurance benefits on retirees. Never mind that the agreement contained a provision providing for the continuation of pension benefits, but not of health-insurance benefits, after the expiration of the agreement.  

Thirty years later, the Supreme Court will finally put an end to the Sixth Circuit’s presumption (unique among the federal courts of appeals) that collective bargaining agreements confer on retirees a vested right to lifetime benefits. In M&G Polymers v. Tackett, the Court will rule unanimously that such a presumption is incompatible with ordinary principles of contract law. 

Law & the Courts

Gun-Shy Ninth Circuit Defers Vindication of Second Amendment Rights?


In 2011, Hawaii resident George Young applied for a license to carry a handgun, but his application was denied. In 2018, a divided panel of the Ninth Circuit ruled in Young v. Hawaii that the state of Hawaii’s discretionary (“may-issue”) permitting scheme for public carrying of handguns violated the Second Amendment. Three years later, an en banc panel of the Ninth Circuit, reversing the panel, ruled against Young by a 7-to-4 vote.

This past June, the Supreme Court ruled in New York State Rifle & Pistol Ass’n v. Bruen that New York’s may-issue permitting scheme violated the Second Amendment. The Court specifically identified Hawaii as one of six jurisdictions (five states and the District of Columbia) that have “analogues” to New York’s “proper cause” standard, and it cited the Ninth Circuit’s en banc ruling in Young as one of the rulings upholding such a standard. In the aftermath of Bruen, the Court, acting on a certiorari petition in Young, vacated the Ninth Circuit’s ruling and remanded the case “for further consideration.”

In an order today, the Ninth Circuit en banc panel, by the same 7-to-4 vote, declined to apply Bruen to the Young case and instead remanded the case to the district court for it to do so. Writing for the dissenters, Judge Diarmuid O’Scannlain (author of the 2018 panel ruling) objected  that, “after Bruen, the question before us is simple”:

We are bound, now, by Bruen, so there is no good reason why we could not issue a narrow, unanimous opinion in this case. The traditional justifications for remand are absent here. The issue before us is purely legal, and not one that requires further factual development. The majority does not explain, nor can it justify, its decision to remand this case to the district court without any guidance. Yet in its terse order and unwritten opinion, the majority seems to reveal a hidden rule in our Circuit: Second Amendment claims are not to be taken seriously. I would prefer to apply the binding decisions of the Supreme Court to the case at hand….

Today we shy away from our obligations to answer the straightforward legal questions presented on appeal and to provide guidance to the lower courts in our Circuit. And in doing so, we waste judicial resources by sending the parties back to square one at the district court. The parties have waited a decade to resolve this litigation, and Young has waited over ten years to exercise his constitutional right to carry a handgun in public for self-defense. Because we opt not to decide this simple case, we force Young to wait even longer.

Law & the Courts

Conservative Attorneys General on the Verge of a Major Victory at NAAG


Last year I wrote in praise of Steve Marshall, the attorney general of Alabama, when he officially cut ties with the National Association of Attorneys General (NAAG). That organization purports to be a nonpartisan forum for state attorneys general, but it in fact thrives on lucrative ties to plaintiffs’ firms. The firms collect enormous attorneys’ fees from the litigation they land from this relationship, and NAAG itself financially benefits, with payouts including a $15 million consent judgment in in multistate litigation against McKinsey & Co. last year. After years of substantial payouts from such other deals as the tobacco master settlement, the national mortgage settlement, and the Volkswagon diesel emission cheating settlement, NAAG finds itself with a sum of $250 million across its nonprofit arms. It is not an exaggeration to say that the organization acts more like a plaintiffs’ firm than a neutral non-profit.

In recent years, NAAG has increasingly been used as a platform to advance initiatives favored by Democrats, including expanded regulation for a wider expanse of the economy and consumer-protection initiatives. The organization can accurately be described as a left-wing laundry, where progressive ideas are brought to be cleaned up and made to look bipartisan.

Attorney General Marshall explained that he could not “justify spending taxpayer dollars to fund an organization that seems to be going further and further left.” In May of this year, four state attorneys general followed Marshall’s example. A letter jointly signed by three of them—in Texas, Missouri, and Montana—called NAAG’s “leftward shift over the past half decade . . . intolerable.” In the fourth state, Arizona, Attorney General Mark Brnovich noted NAAG’s “partisan permeation” and blasted it for focusing more on getting its cut of multimillion-dollar settlements than on the state’s priority to “get as much restitution back to consumers” as it could. These states’ attorneys general are stalwarts who were at the vanguard of legal battles with the Biden administration.

A May 24 letter written on behalf of eight states by Attorney General Daniel Cameron of Kentucky confronted NAAG on its partisanship and demanded accountability concerning its receipt and use of funds, which potentially violates state law restricting its use to “public purposes only.” States typically have laws designed to prevent outside groups from stashing away public money for their own use. Cameron was joined by the attorneys general of Alaska, Florida, Louisiana, Oklahoma, South Carolina, Utah, and Virginia. In July, the Wall Street Journal called out NAAG as being the “Attorneys General Racket.”

And now advocacy groups like the Alliance for Consumers are demanding that NAAG send the money in its slush funds back to consumers. Do not be surprised if several of the attorneys general demanding accountability explicitly make the same demands. NAAG just announced a new executive director after the last one’s acrimonious departure. This is a good time for the organization to change its underhanded ways and return the money it is holding to those intended to benefit from it.

If NAAG does not reform itself, the states may well compel it to do so. Either way, the organization’s days of staging faux bipartisanship while operating massive slush funds that feed left-wing lawyers is most likely about to end.

Law & the Courts

This Day in Liberal Judicial Activism—August 19


2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth. 

2020—In a divided Ninth Circuit panel ruling in Kipp v. Davis, the majority (opinion by Judge Richard A. Paez, joined by Judge Mary H. Murguia) grants federal habeas relief that reverses Martin Kipp’s conviction and death sentence in state court 33 years ago for first-degree murder and attempted rape. In dissent, Judge Jacqueline Nguyen objects that the majority circumvents the deference to state-court decisions required by the Antiterrorism and Effective Death Penalty Act.  

Months later, the Ninth Circuit will deny en banc rehearing by a vote of 15 to 14. Nguyen and her fellow Obama appointee John B. Owens will join twelve Republican appointees in voting for en banc review.  

2021—In Camelot Banquet Rooms v. U.S. Small Business Administration, federal district judge Lynn Adelman enjoins the SBA from excluding live adult-entertainment businesses from eligibility for a loan program. The statutory exclusion that the SBA applies, Adelman concludes, is an “attempt to suppress a dangerous idea” and not rationally related to a legitimate government purpose. 

A unanimous Seventh Circuit panel, in an opinion by Obama appointee David Hamilton, will reverse Adelman. Under established First Amendment doctrine, prurience is not a viewpoint that the government may not discriminate against, but a category of expressive conduct that may be subject to some regulation. And Adelman “applied an erroneous and unduly rigorous form of judicial review, second-guessing legislative decisions and compromises on policy grounds.” 

Law & the Courts

This Day in Liberal Judicial Activism—August 18


2010—In American Atheists, Inc., v. Duncan, a Tenth Circuit panel holds that the state of Utah violated the Establishment Clause by allowing the private Utah Highway Patrol Association to memorialize troopers killed in the line of duty by erecting large white crosses on public property near the locations of their deaths. 

In dissent from his court’s denial of en banc review, Judge Neil Gorsuch will decry that the Tenth Circuit applies its dubious “reasonable observer” test by using an observer who “continues to be biased, replete with foibles, and prone to mistake.”  

In a lengthy dissent from the Supreme Court’s failure to grant certioriari, Justice Thomas will lament that the Court “rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles.”

2021—In an extraordinary order (in United States v. Carrillo-Lopez), federal district judge Miranda Du rules that a core provision of federal immigration law is unconstitutional. Judge Du concludes that section 1326 of Title 8, which imposes criminal penalties on aliens who have been removed and who thereafter re-enter the United States, “violates the equal protection guarantee of the Fifth Amendment.” Specifically, she contends that section 1326 “was enacted with a discriminatory purpose” and “has a disparate impact on Latinx persons” (she uses the term  Latinx  21 times) and that the government “fail[ed] to show that Section 1326 would have been enacted absent racial animus.” 

Du acknowledges that section 1326 was amended five times in the 1980s and 1990s, and she does not contend that those actions reflected racial animus. But in her view those amendments by later Congresses weren’t “substantive” but instead merely “served to increase financial and carceral penalties” and thus can’t cure section 1326 of its tainted origins in enactments in 1929 and 1952. How strange to think that Congress could increase the penalties for unlawful conduct without ratifying that the conduct is unlawful. 

Du also rejects the government’s position that geography explains the “disparate impact” that section 1326 has had on “Latinx persons.” But her contention that the border with Mexico is “over-polic[ed]” compared to the border with Canada makes no effort to address the vast differences in numbers of illegal re-entries across the two borders. 

Law & the Courts

Fourth Circuit’s Transgender Dysphoria


The Americans with Disabilities Act prohibits public entities from discriminating against any individual with a “disability.” The ADA generally defines “disability,” with respect to an individual, as “a physical or mental impairment that substantially limits one or more major life activities of such individual.” But it explicitly excludes from that definition “gender identity disorders not resulting from physical impairments.”

In a divided Fourth Circuit panel ruling yesterday in Williams v. Kincaid, Judge Diana Gribbon Motz’s majority opinion eviscerated that exclusion. The case involves a complaint brought by Kesha Williams, a man who identifies as female and who suffers from gender dysphoria. Williams complains that Fairfax County moved him from the women’s side of its prison to the men’s side when it discovered that he is male and that he experienced delays in medical treatment for his gender dysphoria and was harassed by prison deputies and other inmates.

Motz (joined by Judge Pamela Harris) rules that the ADA’s exclusion of “gender identity disorders not resulting from physical impairments” does not apply for two reasons. First, she concludes that gender dysphoria is categorically not a “gender identity disorder” at all. (Slip op. at 9-15.) She claims that when the ADA was enacted in 1990, the concept of “gender identity disorders” did not include gender dysphoria. By Motz’s illogic, the fact that the American Psychiatric Association removed “gender identity disorders” from its revised diagnostic manual in 2013 and substituted a narrower diagnosis of “gender dysphoria” somehow means that gender dysphoria is not a “gender identity disorder” under the ADA.

But as Judge Marvin Quattlebaum explains in dissent (slip op. at 38-47), the gender dysphoria that Williams alleges—“discomfort or distress that is caused by a discrepancy between a person’s gender identity and that person’s sex assigned at birth (and the associated gender role and/or primary and secondary sex characteristics)”—“falls precisely under the [American Psychiatric Association’s] description of, and diagnostic criteria for, gender identity disorders” in its diagnostic manual in effect in 1990. Indeed, Quattlebaum shows more broadly that “[f]rom 1990 to today, gender identity disorder has been understood to include distress and discomfort from identifying as a gender different from the gender assigned at birth.”

What’s more, a gender identity disorder wouldn’t even fall within the general definition of an ADA “disability” in the first place unless it resulted in an “impairment that substantially limits one or more major life activities of [an] individual.” So it’s precisely because the subcategory of gender dysphoria involves “clinically significant stress” that the exclusion comes into play

Second, Motz maintains that even if gender dysphoria is a gender identity disorder under the ADA, Williams’s complaint can plausibly be read to support the inference that his gender disorder “result[ed] from physical impairments.” (Slip op. at 15-20.) But as Quattlebaum objects, the complaint does not identify any part of Williams’s body that is impaired or even allege any physical impairment. (Slip op. at 50-53.)

Law & the Courts

This Day in Liberal Judicial Activism—August 17


2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional. Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.” 

Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.” (How’s that for “careful” and “thoroughly grounded”?) 

Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.” But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit will overturn Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.  

2009—Purporting to be carrying out its duty to defend the Defense of Marriage Act, the Obama administration’s Department of Justice instead sabotages that law. Abandoning strong arguments that had been successful in previous litigation, DOJ asserts in a brief that it “does not believe that DOMA is rationally related to any legitimate government interests in procreation and child-rearing.” As one supporter of same-sex marriage puts it (emphasis added): 

This new position is a gift to the gay-marriage movement, since it was not necessary to support the government’s position. It will be cited by litigants in state and federal litigation, and will no doubt make its way into judicial opinions. Indeed, some state court decisions have relied very heavily on procreation and child-rearing rationales to reject SSM [same-sex marriage] claims. The DOJ is helping knock out a leg from under the opposition to gay marriage. 

2020—Federal district judge David C. Nye issues a preliminary injunction (in Hecox v. Little) that prevents Idaho from enforcing its Fairness in Women’s Sports Act. The Act bars “students  of the male sex” from athletic teams or sports designated for females. Nye (a Trump appointee) asserts that the Act likely violates the Equal Protection Clause. Among his many confusions, Nye maintains that the Act “discriminates on the basis of transgender status” when it in fact plainly distinguishes on the basis of sex. He thus evades a longstanding circuit precedent holding that barring boys from playing on girls’ high-school volleyball teams does not violate the Equal Protection Clause. 

Law & the Courts

This Day in Liberal Judicial Activism—August 16


1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.   

Law & the Courts

This Day in Liberal Judicial Activism—August 15


1938—Stephen Gerald Breyer is born in San Francisco. An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee. His reward: On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit. His nomination is promptly confirmed. In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court. (See This Day for July 29, 1994.) Breyer will serve in that position until for 28 years. His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”   

2000—The New Jersey supreme court rules by a vote of 4-2 (in Planned Parenthood v. Farmer) that a state statute providing for parental notification for abortion violates the state constitution because it treats minors seeking abortion differently from minors who decide to carry their child to term.  

Law & the Courts

This Day in Liberal Judicial Activism—August 13


2015—In State v. Santiago, the Connecticut supreme court rules by a 4-3 vote that the death penalty “as currently applied” violates the state constitution. (Under some quirk of Connecticut procedure, the “official release” date of the ruling is August 25.) 

The majority relies heavily on the fact that the Connecticut legislature prospectively repealed the death penalty in 2012. It thus effectively expands the legislature’s prospective-only repeal into a retroactive repeal of the death penalty for the twelve convicts who were sentenced to death for crimes committed before the 2012 enactment. 

The court’s ruling ought to make it more difficult for other legislatures to repeal the death penalty prospectively. Any such purported prospective-only repeal will now be known to present a huge risk that a state court will determine that the death penalty cannot be applied at all. And the specific heinous criminals who will benefit from that abolition will be easy for legislators and their constituents to identify, as the last several pages of associate justice Carmen Espinosa’s powerfuldissent make clear. 

Law & the Courts

This Day in Liberal Judicial Activism—August 12


2010In his final act of extraordinary malfeasance in Perry v. Schwarzenegger, Judge Vaughn Walker refuses to stay his judgment against California’s Proposition 8 while the appeal process unfolds. Days later, a Ninth Circuit panel will overturn Walker—the remarkable third major smackdown that Walker will have earned from a reviewing court (twice from the Ninth Circuit, once from the Supreme Court) in this case before his ruling on the merits is even reviewed on appeal. 

Law & the Courts

The People Want Attorney General Garland to Enforce the Law


On March 4, 2020, Senator Chuck Schumer stood in front of the Supreme Court declaring to Justices Brett Kavanaugh and Neil Gorsuch that they “have released the whirlwind, and you will pay the price! You won’t know what hit you if you go forward with these awful decisions.”

On June 8, 2022, a man was arrested for attempting to assassinate Justice Kavanaugh. And now, in August 2022, one hundred days since the draft opinion in Dobbs v. Jackson Women’s Health Organization was leaked, the country is witnessing a dangerous intimidation campaign against the Supreme Court, with protesters converging on the homes of Supreme Court justices, harassing them at restaurants, and calling for their death on social media platforms like Twitter.

Many of the initial protests on homes were driven by a dark-money group called “Ruth Sent Us” that offered stipends to demonstrators. Other groups, including ShutDown DC and Downright Impolite, jumped into the fray. The protests have not ceased since early May—they did not even pause the evening of the Kavanaugh assassination attempt.

A group called “Jane’s Revenge”—which is more of a radical militant network akin to the Weather Underground—has inflicted threats and violence against pro-life pregnancy centers and churches. Democrats did not bat an eye.

Shortly after the Dobbs leak, Virginia Governor Glenn Youngkin and Maryland Governor Larry Hogan wrote Attorney General Merrick Garland requesting that the Justice Department “provide appropriate resources to safeguard the Justices and enforce the law as it is written.” It is clear from the law they referenced, 18 U.S.C. § 1507, that it is illegal to picket at the justices’ residences in an attempt to influence them.

A month later, shortly after the attempt on Kavanaugh’s life, the Justice Department finally responded. The Attorney General of the United States declined to enforce the law. This inaction came from a colleague and friend of Kavanaugh who worked with him on the D.C. Circuit for 12 years.

After the Court released its decision in Dobbs, the violence continued, as did the menacing of the justices who were part of the majority. This time it extended outside their private residences. When protesters showed up at a restaurant where Kavanaugh was dining, demanding the manager kick him out, ShutDownDC offered bounties for spotting and reporting any of the Republican-appointed justices.

There is no denying that Garland is cowering before the woke mob. He won’t protect Supreme Court justices but was quick to go after parents who complained at school board meetings as if they were potential terrorists. Last week, FBI Director Christopher Wray testified in response to questioning from Senator Tom Cotton on why § 1507 was not being enforced that “[o]ur agents are . . . up to their necks enforcing all sorts of laws.” Well.

The bigger picture is that the attorney general is operating according to a partisan compass rather than an objective commitment to the law. And the faction he is appeasing is not a broad constituency of Democrats, but the far Left. JCN recently released the results of a poll in which 58% of respondents agreed that Garland should enforce the law that prohibits protests at the justices’ homes. That included 56% of independents and 50% of Democrats.

The same poll found 61%, including 60% of independents and 52% of Democrats, agreeing that these types of protests undermine our democracy. Some 71%, including 69% of independents and 61% of Democrats, agree that activist groups paying “bounties” for tips about where justices are dining goes too far.

Most Democratic voters want the law to be enforced and judges not to be harassed. But the dark money Left is very invested in this intimidation campaign and has the deep pockets to pursue it. Remember that this is the faction that wants to pack the Supreme Court. They could not muster the votes to support that, but they have found plenty of Democratic politicians who would rather carry water for them than ensure the justices’ safety.

Motivated in part by abortion but also by other causes that are subjects of ongoing litigation, the protests continue at the justices’ homes for the indefinite future because Attorney General Merrick Garland refused to do his job. As long as this inaction continues, the justices’ safety is endangered.

The price is to be paid not only by the justices threatened by the likes of Senator Schumer and radical protesters, but by all of us who depend upon the rule of law. That is why Attorney General Garland must stop cowering before the woke mob and enforce the law.

Editor’s note: This article has been emended since original publication. 

Law & the Courts

This Day in Liberal Judicial Activism—August 11


2006—In a separate opinion in Henyard v. McDonough, Eleventh Circuit judge Rosemary Barkett, reaching out to address an issue that she concedes (with considerable understatement) “may not be directly before us,” opines that the Eighth Amendment should be construed to bar the death penalty for murderers “with a mental age of less than eighteen years.” 

What exactly Barkett means by “mental age” is confused. At one point, she quotes, with seeming approval, a definition of “mental age” as the “chronological age equivalent of the person’s highest level of mental capacity.” But she inconsistently equates it with “emotional level” and says that “even high IQ in an adult defendant” is compatible with “a mental age of a child.” Her test appears to be whether a murderer shares a “child’s inability to understand why the rules exist, to appreciate the consequences of breaking them for herself and for society, and to consistently make judgments based on the foregoing.”

Barkett’s test virtually ensures that most heinous murderers will be deemed to have a mental age below 18. Indeed, she states that there is “no dispute” that Richard Henyard—who carjacked a mother and her two daughters (ages 7 and 3), raped and shot the mother, and shot and killed the daughters—has a mental age below 18.

Barkett’s test would seem to establish that she has the mental age of a child. Does This Day perennial Barkett “understand why the rules exist”? Does she “appreciate the consequences of breaking them”—through her lawless judicial activism? Does she “consistently make judgments based” on those understandings? From the evidence that pervades This Day entries, the answers are no, no, and no.  

Law & the Courts

This Day in Liberal Judicial Activism—August 9


1969—“Now is the time for Helter Skelter,” declares Charles Manson, triggering two nights of vicious killing by the “Manson Family” in Los Angeles. Some 2½ years later, in its own rampage (see This Day for Feb. 18, 1972), the California supreme court will void the death sentences that had been imposed on Manson and four other Family members.  

2019—Federal district judge Arenda L. Wright Allen rules (in Grimm v. Gloucester County School Board) that a school board’s policy of assigning students to restrooms based on their biological sex violated the rights of a female student who identified as male under both the Equal Protection Clause of the Fourteenth Amendment and the federal statute known as Title IX. 

(One year later, a divided Fourth Circuit panel will affirm Judge Allen’s ruling, and in June 2021 the Supreme Court will deny the school board’s petition for certiorari.) 

Law & the Courts

This Day in Liberal Judicial Activism—August 8


2005—NARAL unleashes a mendacious television ad against confirmation of John Roberts’s nomination to the Supreme Court. The ad features a woman injured in the 1998 bombing of an abortion clinic, attempts to link her injury to an amicus brief that Roberts filed on behalf of the United States in 1991, and says that Americans should oppose a nominee “whose ideology leads him to excuse violence against other Americans.” 

Never mind that Roberts’s amicus brief, which argued that an 1871 law did not provide a federal cause of action against persons obstructing access to abortion clinics, did not take issue with the many laws that criminalize violence outside abortion clinics and did not in any way “excuse violence against other Americans.” Never mind that it was ludicrous to suggest that Roberts’s amicus brief was somehow responsible for the 1998 bombing (all the more so as the intervening enactment in 1994 of the so-called FACE Act imposed severe penalties against those obstructing access to abortion clinics yet failed to deter the bombing). And never mind that Roberts in fact had denounced abortion-clinic bombers as “criminals.”

Days later, under harsh criticism from its usual allies, NARAL will pull the ad.

2006—In an act of collective idiocy, the ABA’s House of Delegates approves the ABA task force’s insipid report against presidential signing statements, a report that earned scathing criticism from leading academics across the political spectrum.   

Law & the Courts

This Day in Liberal Judicial Activism—August 7

(Andrew Kelly/Reuters)

2006—Outgoing American Bar Association president Michael Greco, a zealous liberal who stacked an ABA task force on presidential signing statements with fervent opponents of the Bush administration and who did his utmost to load the ABA’s judicial-evaluations committee with hard-core partisans, delivers a ridiculously pompous farewell address. For example: “Our fellow Americans, as never before, are looking to our Association with hope, with trust, and with respect for our leadership.” And: “In our generation, it is the lawyers of America who by destiny and by choice are the guardians of the walls of freedom. It is the American Bar Association that is protecting the separation of powers and the balance of powers by checking the excesses of any branch of government that would overreach.”

2019Sometimes the repeat offender is the judge, not the criminal defendant.

Federal district judge Sheryl Lipman evidently wasn’t happy when the Sixth Circuit reversed her for imposing a sentence of a mere 12 months of home confinement on Dane Schrank, who pled guilty to possession of child pornography for downloading “nearly 1,000 images of babies and toddlers being forcibly, violently, and sadistically penetrated.” So on remand (in U.S. v. Schrank) Lipman imposes the same soft sentence. Never mind that the Sentencing Guidelines advise a sentence of 97 to 120 months in prison.

A year later, the Sixth Circuit will again vacate Lipman’s sentence as “fundamentally unjust” and will remove her from the case.

2020Mr. Adams began a birth control regimen to end his menstrual cycle.” Such is the denial of biological reality that pervades the Eleventh Circuit panel majority’s ruling in Adams v. School Board of St. Johns County. On the premise that Drew Adams, a girl who identifies as male, is really a boy, Judge Beverly Martin rules that a school board violated the Equal Protection Clause and Title IX by barring Adams from using the boys’ restroom.

As Judge William Pryor explains in dissent, there is nothing unlawful, under either the Constitution or federal law, about a policy that separates bathrooms for schoolchildren on the basis of sex.

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This Day in Liberal Judicial Activism—August 6


1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense. 

But, as the Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”  

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law. 

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Ron DeSantis Transforms Florida Supreme Court


When Ron DeSantis became Florida’s governor in January 2019, I highlighted the prospect that he could undo the dominance that liberal justices have had on the state supreme court for decades. As I pointed out, that dominance persisted despite the fact that Florida hadn’t elected a Democratic governor since 1994.

There is ample reason to believe that DeSantis has succeeded in transforming that court.

Today DeSantis appointed circuit judge Renatha Francis to the supreme court. An attorney very knowledgeable about Francis and her record assures me that she is a strong originalist and textualist and an excellent pick. You can watch her beautiful acceptance remarks here (beginning around the 12:00 mark). The fact that she is also an immigrant from Jamaica whose life is (in her words) the “epitome of the American dream” will feed the fury of the Left.

When Francis takes her seat, DeSantis will have appointed four of the seven members of the Florida supreme court. (He’s actually appointed six justices, but two of his early picks—Barbara Lagoa and Robert Luck—were in turn appointed by Donald Trump to the U.S. Court of Appeals for the Eleventh Circuit.) DeSantis has transformed what was long a 5-to-2 liberal majority into a 6-to-1 textualist majority.

Francis will be replacing another textualist justice, so her appointment won’t alter the court’s ideological alignment. But it might well help to entrench it for another two decades or more. The Florida supreme court has a mandatory retirement age of 75, but the oldest of DeSantis’s four appointees won’t hit that mark until 2044. So DeSantis’s appointees could constitute a majority of the court until then.

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This Day in Liberal Judicial Activism—August 5


1997—By a vote of 4-3, the California supreme court rules (in American Academy of Pediatrics v. Lungren) that a state law that requires a pregnant minor to obtain parental consent or judicial authorization before she obtains an abortion violates the state constitution.  

In one dissent, longtime liberal justice Stanley Mosk charges that the justices in the majority, while purporting to apply the principle governing claims under the state constitutional right to privacy, in fact “reverse the principle, sub silentio.” In another, Justice Marvin Baxter argues that the majority “departs radically from any defensible view of the voters’ intent when they added a right of privacy to the [state constitution] in 1972 and undermines the fundamental and constitutionally protected right of parents to guide and control the upbringing of their children.” In the third, Justice Janice Rogers Brown concludes that the case “is an excellent example of the folly of courts in the role of philosopher kings.” 


Law & the Courts

The Best Attorney General Pick for Tennessee


As his eight-year term is set to expire shortly, Tennessee Attorney General Herbert Slatery III, the first Republican to occupy that position since Reconstruction, recently notified the state supreme court, which is responsible for appointing the state’s chief legal officer, that he would not seek an additional term. Next week, the court will be interviewing six applicants for the position. None in this or any other state is better qualified than Jonathan T. Skrmetti.

Jonathan’s experience speaks for itself. It spans from federal positions to private practice to the office he may be selected to run. He began his legal career as a law clerk to Judge Steven Colloton of the Eighth Circuit and then went on to the Justice Department, where he served both in the Civil Rights Division and as an assistant U.S. attorney in Memphis. His work included prosecutions of sex trafficking, white supremacist violence, and public corruption. He then went on to private practice—at Butler Snow LLP in Memphis—before joining the attorney general’s office in 2018. He served as the second highest ranking official in that office, chief deputy attorney general, before becoming general counsel to Governor Bill Lee in December. On top of everything else, he has taught cyberlaw at the University of Memphis Cecil C. Humphreys School of Law.

There are several talented applicants for attorney general in the mix, but none has anything approaching Jonathan’s range of relevant experience. And far beyond resume items, I can attest to his brilliance and his integrity as a law school classmate and friend. It was my privilege to know him during his days as editor-in-chief of the Harvard Journal of Law & Public Policy. A long-time member of the Federalist Society and former Memphis chapter president, he has brought to his work an unwavering commitment to originalism and textualism. Clearly, he is the best candidate for attorney general, and I hope the Tennessee Supreme Court agrees.

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This Day in Liberal Judicial Activism—August 4


1973—On vacation in Yakima, Washington, Justice William O. Douglas issues an opinion in support of his single-justice order the previous day that purported to bar U.S. military operations in or over Cambodia. (Specifically, his order vacated the stay that a federal court of appeals had entered of a district-court order to such effect.)  

Never mind that Justice Thurgood Marshall had, on August 1, denied the same application, or that the Court’s usual practice, as Douglas noted, “is to refer [a] second application to the entire Court.” Such practice, Douglas asserts, “cannot be followed” when the Court is in recess, “for the Justices are scattered,” making “[g]roup action by all Members … impossible.”  

Claiming to “pay the greatest deference” to Justice Marshall’s denial, Douglas instead analogizes the legal issue to the “classic capital [i.e., death-penalty] case,” and blithely bulldozes past issues of justiciability, standing, and the political-question doctrine. 

The Court promptly proceeds to disprove Douglas’s assessment that collective action by the justices is impossible during the recess. In an order written by Justice Marshall and agreed to by the seven other justices, it overturns Douglas’s action that same day. Douglas, in dissent, contends that the statutory quorum rule governing the Court (which provides merely that six justices “shall constitute a quorum”) means that the Court can act only when at least six justices are physically present in the same place and does not allow the “telephonic disposition of this grave and crucial constitutional issue.” 

2010—The Senate, by a 63-37 vote (with Democrat Ben Nelson of Nebraska among those voting no), confirms President Obama’s nomination of Elena Kagan to the Supreme Court. 

2010—In a ruling that even a prominent proponent of same-sex marriage condemns as “radical,” Judge Vaughn Walker continues his wild course of misconduct in Perry v. Schwarzenegger by declaring that California’s Proposition 8 violates the federal Due Process and Equal Protection clauses. 

Among other things, Walker denies that the male-female union has ever been one of the “characteristics” of marriage in the United States. In absurd “findings of fact,” Walker claims that the “evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes” and that the “evidence shows beyond debate that allowing same-sex couples to marry has at least a neutral, if not a positive effect on the institution of marriage.” Never mind that plaintiffs’ own experts had rejected this latter proposition. 

Ramona Ripston, executive director of the ACLU Foundation of Southern California (which filed pre-trial and post-trial amicus briefs in support of plaintiffs), publicly celebrates Walker’s ruling: “We rejoice at today’s decision but there’s a long road ahead toward establishing true marriage equality for same-sex couples.” 

The next stop in that “long road ahead” is the Ninth Circuit, where—surprise!—Ripston’s husband, arch-activist Stephen Reinhardt will be assigned to the panel reviewing Walker’s ruling. Notwithstanding his wife’s personal involvement in the same case, Reinhardt will decline to recuse himself. 

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Abortion Advocates Launch New Strategies to Keep Abortions Going

Supporters of abortion demonstrate outside of the U.S. Supreme Court in Washington, D.C., June 13, 2022. (Evelyn Hockstein/Reuters)

The Supreme Court may have acknowledged that the U.S. Constitution does not stand in the way of legislatures protecting babies before birth, but abortion advocates are launching new strategies to keep those babies at risk. The latest is a lawsuit, filed on August 2 by the U.S. Department of Justice, alleging that Idaho’s pro-life law conflicts with a federal law guaranteeing access to emergency medical care. Similar suits targeting other pro-life states are sure to follow.

In 2020, the Idaho legislature enacted a law banning all abortions except those “necessary to prevent the death of the pregnant woman” that would become effective 30 days after the Supreme Court “restores to the states their authority to prohibit abortion.” The Court did so on June 24, overruling Roe v. Wade and Planned Parenthood v. Casey. The law is scheduled to take effect on August 25.

The Emergency Medical Treatment and Labor Act (EMTALA), enacted in 1986, requires that anyone coming to the emergency department of a Medicare-receiving hospital with an “emergency medical condition” must receive necessary stabilizing treatment, regardless of their ability to pay. It provides that state laws are preempted “to the extent that a [state law] requirement directly conflicts with a requirement” of EMTALA. The Justice Department’s complaint claims that Idaho’s new law “would make it a criminal offense for doctors to comply with EMTALA’s requirement . . . where a doctor determines that abortion is the medical treatment necessary to prevent a patient from suffering severe health risks or even death.”

The fact that the Idaho law allows abortion in order to prevent the mother’s death makes DOJ’s claim that, by banning abortion, it “will likely result in death for the pregnant patient” confusing, to say the least. The suit asks a federal judge to rule that the Idaho law “is preempted by federal law” and to permanently block it “to the extent that it conflicts with EMTALA.”

Ed Whelan has outlined several problems with DOJ’s legal theory, which will not stop DOJ from using it to target other states that prohibit abortion. As he demonstrates, this isn’t really a proper preemption case at all. “If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding,” Whelan writes, “then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law.”

Abortion advocates in Congress are trying to make taxpayers foot as much of the abortion bill as possible. On July 28, Senator Patty Murray (D., Wash.) announced that the appropriations bill for the fiscal year that begins on October 1, 2022, will include a long list of provisions to facilitate abortion. It would eliminate the Hyde amendment, a legislative provision that has barred the use of federal funds for most abortions since it was enacted in 1976. Most Americans support this restriction, and the Supreme Court repeatedly held, even while Roe v. Wade was on the books, that the Constitution does not require the government to facilitate abortion.

The Murray bill would not only lift the Hyde amendment’s protection for taxpayers, it would create new ways to force taxpayers to foot the abortion bill. These include a $350 million fund to pay for travel and other costs for women in pro-life states to obtain abortions elsewhere and to subsidize the construction and renovation of abortion clinics in pro-abortion states. The bill would increase funding for the Department of Health and Human Services’ Office of Civil Rights to fight pro-life states’ ability to protect unborn life. And it would create a new position at HHS, the “reproductive health ombudsman,” to “disseminate information to help individuals connect with . . . abortion funds; and provide information on safety related to self-managed abortions.”

Roe v. Wade itself demonstrated the commitment of those who claim that killing children in the womb is acceptable. Roe made virtually impossible even minor limits on abortion that had been in state statutes and the common law literally for centuries. The Supreme Court imposed upon the country an abortion regime more permissive than anything any legislature had adopted, that the American people had never supported, and that only a few countries in the world had embraced. Acknowledging that, as Americans can read for themselves, the Constitution does not protect any right to abortion will let the American people and their elected legislators choose how to handle abortion. But as these new federal efforts show, abortion advocates will be as aggressive as ever.

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Biden Administration’s Misdirected EMTALA Lawsuit Against Idaho Abortion Law

Attorney General Merrick Garland speaks during a press conference at the Department of Justice in Washington, D.C., June 13, 2022. (Evelyn Hockstein/Reuters)

Yesterday the Biden administration sued the state of Idaho over its abortion law that will take effect on August 25. The Department of Justice’s complaint contends that Idaho’s law will conflict in some circumstances with the federal Emergency Medical Treatment and Labor Act (EMTALA). It asks that the federal district court rule that the Idaho law “is preempted and therefore invalid to the extent that it conflicts with EMTALA.”

In this post, I offer some observations on DOJ’s lawsuit. As I will explain, rather than purporting to displace state law, EMTALA imposes requirements on hospitals that choose to take part in Medicare. It’s a funding restriction. It would seem, therefore, that the Biden administration’s only proper legal recourse is to take enforcement action against any Medicare-participating hospital in Idaho that actually fails to comply with EMTALA or to undertake to terminate its Medicare agreements with Idaho hospitals.

1. Let’s start with EMTALA. As the Department of Health and Human Services explains, Congress enacted EMTALA to ensure public access to emergency services regardless of ability to pay. EMTALA “imposes specific obligations on Medicare-participating hospitals that offer emergency services to provide … treatment for an emergency medical condition, including active labor, regardless of an individual’s ability to pay. Hospitals are then required to provide stabilizing treatment for patients with [emergency medical conditions].”

EMTALA defines the term “emergency medical condition” to mean:

(A) a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in—

(i) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy,

(ii) serious impairment to bodily functions, or

(iii) serious dysfunction of any bodily organ or part; or

(B) with respect to a pregnant woman who is having contractions—

(i) that there is inadequate time to effect a safe transfer to another hospital before delivery, or

(ii) that transfer may pose a threat to the health or safety of the woman or the unborn child.

2. Idaho’s abortion law provides life-of-the-mother and rape/incest exceptions. It’s the scope and nature of the life-of-the-mother exception that DOJ is challenging, so let’s spell it out.

Under Idaho’s law, it is an “affirmative defense to prosecution” that “a physician determined, in his good faith medical judgment and based on the facts known to the physician at the time, that the abortion was necessary to prevent the death of the pregnant woman” and that he “performed or attempted to perform the abortion in the manner that, in his good faith medical judgment and based on the facts known to the physician at the time, provided the best opportunity for the unborn child to survive, unless, in his good faith medical judgment, termination of the pregnancy in that manner would have posed a greater risk of the death of the pregnant woman.”

3. DOJ, as I understand it, objects to this exception on two grounds. First, the life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” As DOJ states in the opening paragraph of its complaint:

Crucially, “emergency medical conditions” under the statute include not just conditions that present risks to life but also those that place a patient’s “health” in “serious jeopardy” or risk “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.”

Second, DOJ complains that by “put[ting] the burden on the physician to prove an ‘affirmative defense’ at trial” (rather than requiring the prosecution to show that the abortion was not done to save the life of the mother), the Idaho law could lead a physician to “withhold care based on a well-founded fear of criminal prosecution” even when he in good faith determines that the life of the mother is at stake.

4. Let’s accept DOJ’s position that the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition.” (I’m skeptical of its objection to the fact that the exception is cast as an affirmative defense, but we can pass over that for now, as my same points apply if DOJ is correct.) What follows from that?

If the Idaho law’s life-of-the-mother exception is narrower than EMTALA’s definition of “emergency medical condition,” a Medicare-participating hospital in Idaho might theoretically encounter a situation in which it cannot comply with EMTALA’s funding restriction without violating the Idaho law. But that doesn’t mean that the Idaho law conflicts with EMTALA, as the straightforward (though, to be sure, costly) way for the hospital to prevent any conflict is to decline to participate in Medicare.

EMTALA itself provides (in subsection (f)) that it does “not preempt any State or local law requirement, except to the extent that the requirement directly conflicts with a requirement of this section.” No such direct conflict exists.

How strange it would be to think that a private party’s decision to accept federal funds subject to a funding restriction preempts a state law that makes it difficult or impossible for that party to comply with the funding restriction. If an Idaho hospital believes that it can’t comply with both Idaho law and the EMTALA condition on Medicare funding, then it should decline the Medicare funding. It can’t accept the funding and then contend that it is somehow exempt from state law. Yet that’s the very position that DOJ is asserting.

In other words, the Biden administration’s proper recourse, if it believes that a Medicare-participating hospital in Idaho won’t comply with EMTALA’s funding restriction, is to terminate its Medicare agreement with that hospital or to take enforcement action against the hospital if and when it fails to comply.

5. The Social Security Act, which includes Medicare and EMTALA, also makes clear that the federal government has no say in determining what proper medical treatment is for an “emergency medical condition” and that the scope of proper medical treatment is instead a matter for state regulators:

Nothing in this subchapter shall be construed to authorize any Federal officer or employee to exercise any supervision or control over the practice of medicine or the manner in which medical services are provided … or to exercise any supervision or control over the administration or operation of any such institution, agency, or person.

So even if EMTALA purported to directly regulate hospitals (rather than to impose conditions on hospitals receiving Medicare funding), it wouldn’t preempt Idaho’s judgment that abortion is a medically unsound treatment except to save the life of the mother.

6. Even on DOJ’s theory, is there in fact any realistic prospect that the potential conflict between EMTALA’s funding restriction and Idaho’s law would actually arise? Is it impossible for an Idaho hospital to continue to take part in good faith in Medicare? Or is DOJ hypothesizing a farfetched scenario in a misdirected attack on Idaho’s law?

I will leave it to medical professionals to answer those questions. But I will note that far from being any sort of abortion mandate, EMTALA’s definition of “emergency medical condition” would generally require stabilizing treatment for both a pregnant woman and “her unborn child.”

DOJ contends that it can’t wait “to initiate federal enforcement actions directly against physicians or hospitals” because waiting “would likely have significant negative consequences on public health.” But it’s reasonable to suspect that DOJ’s real concern about waiting is that no occasion for a federal enforcement action would ever arise.

Law & the Courts

This Day in Liberal Judicial Activism—August 3


1993By a vote of 96 to 3, the Senate confirms President Clinton’s nomination of D.C. Circuit judge Ruth Bader Ginsburg to the Supreme Court seat vacated by Justice Byron White. Confirmation comes a mere seven weeks after Clinton announced his decision to nominate Ginsburg.  
And how, after all, could there have been any controversy over a former ACLU activist who, among other things, had stridently criticized the Supreme Court’s 1977 ruling that the Constitution does not require taxpayers to fund abortions … who had stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy … who had proposed abolishing Mother’s Day and Father’s Day and replacing them with an androgynous Parent’s Day … who had criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles … and who had urged that prisons be co-ed rather than single sex? (See here for documentation of the last several points.) That’s what the media call a “mainstream” and “moderate” nominee. 

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Addled Ruling that Tax-Exempt Status Subjects Private School to Title IX


According to this list compiled a few years ago, there are 18 colleges—including Hillsdale and Grove City—that do not accept federal grants or participate in any federal student-loan programs. These colleges have decided to make these huge financial sacrifices in order to avoid being entangled in the strings that accompany federal aid. These strings include elaborate regulations that implement the nondiscrimination requirements of Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments Act of 1972, as well as the intrusive government oversight in enforcing these regulations.

A district-court opinion two weeks ago will come as a huge surprise to these colleges—and, I would think, to everyone else. In that opinion, federal district judge Richard D. Bennett (a Bush 43 appointee) held that a school’s federal 501(c)(3) tax-exempt status qualifies as federal financial assistance under Title IX. In other words, under Judge Bennett’s ruling, it does not matter that Hillsdale and Grove City do not accept federal grants or participate in any federal student-loan programs. The fact that they have 501(c)(3) status suffices to subject them to Title IX and (as his reasoning makes clear) to Title VI.

Fortunately for Hillsdale and Grove City, Judge Bennett’s reasoning is feeble.

Bennett correctly observes that the Supreme Court held in Grove City College v. Bell (1984) that “Title IX coverage is not foreclosed because federal funds are granted to Grove City’s students [via federal student loans] rather than directly to one of the College’s educational programs.” But he badly misreads Justice Ginsburg’s unanimous opinion in the follow-on case of NCAA v. Smith (1999). That case held that “[d]ues payments from recipients of federal funds … do not suffice to render the dues recipient subject to Title IX.” Ginsburg explains that the NCAA’s dues-paying members did not pay their dues “with federal funds earmarked for that purpose”:

At most, the Association’s receipt of dues demonstrates that it indirectly benefits from the federal assistance afforded its members. This showing, without more, is insufficient to trigger Title IX coverage.

What Bennett completely misses is that the NCAA ruling would call for him to determine whether a school’s tax-exempt status is more like the dues payments from recipients of federal funds at issue in that case or more like the receipt of “earmarked” federal funds from student borrowers in the Grove City case. The answer to that question would seem clear: Those who make charitable contributions to tax-exempt schools are not providing “federal funds earmarked for that purpose.” They are not providing federal funds at all. There is no reason, indeed, to presume that any contributors are even “recipients of federal funds.” Thus, the “indirect benefits” that a school receives from its tax-exempt status are even more remote than the benefits that the Court in the NCAA case found “insufficient to trigger Title IX coverage.”

Bennett’s reliance on a couple of long-ago Title VI rulings by district courts is likewise unsound for the simple reason that those rulings preceded NCAA v. Smith.

What’s more, a threshold problem with Bennett’s analysis is that the Department of Education’s regulations implementing Title IX (see 102.6(g)) define “Federal financial assistance” as “any of the following [types of assistance], when authorized or extended under a law administered by the Department.” (Emphasis added.) The Department of Education does not administer tax-exempt status, so the definition clearly does not apply. Bennett dismisses the first problem on the ground that the school did not raise it. But surely it falls within the school’s broader argument that Title IX does not apply.

Nor (as one district-court ruling Bennett cites correctly observes) is tax-exempt status included in the definition’s list of types of assistance. Bennett tries to escape this problem by invoking his misreading of NCAA v. Smith.

Law & the Courts

Re: Wild Ruling Against Kentucky Abortion Laws


A quick follow-up to my post yesterday: I’m pleased to pass along that yesterday evening the state court of appeals granted Kentucky attorney general Daniel Cameron’s motion for an emergency stay of the lower court’s ill-founded temporary injunction against Kentucky’s abortion laws. That means that Kentucky’s Human Life Protection Act and its Heartbeat Law are both immediately enforceable.

Law & the Courts

Wild Ruling Against Kentucky Abortion Laws

A pregnant woman receives an ultrasound. (Carlos Barria/Reuters)

Inconveniently for me, Kentucky trial judge Mitch Perry issued a wild ruling against two Kentucky abortion laws on the first day of my just-completed vacation to Maine, so I’ve been delayed in highlighting the ruling’s many defects. Fortunately, Kentucky attorney general Daniel Cameron has in the meantime filed an excellent motion for interlocutory relief in the state court of appeals (as well as a motion to transfer the matter to the state supreme court). I draw on that motion’s analysis at various points throughout this post.

In his order, Judge Perry enjoined state officials from enforcing two laws, the Human Life Protection Act (which Perry denominates the “Trigger Ban”) and the Heartbeat Law (which Perry labels the “Six Week Ban”).

The Human Life Protection Act generally bars a person from committing an abortion from conception. (It provides an exception for “a licensed physician to perform a medical procedure necessary in reasonable medical judgment to prevent the death or substantial risk of death due to a physical condition, or to prevent the serious, permanent impairment of a life-sustaining organ of a pregnant woman.”) Enacted in 2019, it states that its provisions “shall become effective immediately upon … [a]ny decision of the United States Supreme Court which reverses, in whole or in part, Roe v. Wade, 410 U.S. 113 (1973), thereby restoring to the Commonwealth of Kentucky the authority to prohibit abortion.”

The Heartbeat Law, also enacted in 2019, bars a person (except in a medical emergency) from committing an abortion after a fetal heartbeat has been detected.

I will focus my comments here on Judge Perry’s section on “Constitutional Analysis” (pp. 10-19). I will address his larger errors in the order in which they occur.

Perry perceives two particular problems with the Human Life Protection Act. First, he argues in a single paragraph that the Kentucky legislature, by tying the law’s effective date to the overruling of Roe, “impermissibly delegated its legislative authority” to the U.S. Supreme Court. But as AG Cameron explains more fully (pp. 41-45), the state legislature did not delegate any legislative authority to the Court but instead “simply provided a triggering event for when the Human Life Protection Act took effect.”

Second, Perry claims that the Human Life Protection Act is “unconstitutionally vague” as to whether it became effective when the Court announced the Dobbs decision on June 24 or when the Court later issued its formal mandate (or judgment) to the lower court in Dobbs. But the Act itself states clearly that its provisions “become effective immediately upon [a]ny decision” reversing Roe. Perry himself states (on p. 2) that that occurred on June 24. Perry cites two state attorneys general who have construed their states’ trigger laws to be tied to issuance of the mandate. But those laws, unlike Kentucky’s, are tied to “issuance” of the “judgment.” In any event, it is difficult to see how any possible confusion between these two effective dates could justify enjoining enforcement of the Act after both of those dates have passed.

Perry finds multiple flaws with the Heartbeat Law (all of which, I gather, also supposedly infect the Human Life Protection Act, although Perry doesn’t make that clear). First, he contends that it violates a state constitutional right to privacy. But as AG Cameron spells out at length (pp. 14-32), text, precedent, and tradition defeat the notion that any state constitutional privacy right extends to abortion.

Raising arguments that even the ACLU (plaintiffs’ counsel) thought too kooky to bother with, Perry concludes that the Heartbeat Law violates state equal-protection and religious-freedom principles. AG Cameron points out Kentucky case law incorporates federal standards on equal protection, so Dobbs’s rejection of the equal-protection argument for abortion defeats the state claim as well.

Perry’s religious-freedom discussion (pp. 15-16, 19) might be the nuttiest part of his ruling. Perry contends that the two laws “adopt the view embraced by some, but not all, religious traditions that life begins at the moment of conception.” In his view, they thus “impermissibly establish[] a distinctly Christian doctrine of the beginning of life” and amount to “theocratic based policymaking.” But as AG Cameron observes:

The view that life begins at fertilization [i.e., conception] is “the leading biological view on when a human’s life begins.” … That some religious views align with the predominant view of biologists does not turn the policy judgment of the General Assembly into a forbidden establishment of religion.” [Emphasis added; quoting biologists’ amicus brief in Dobbs.]

It’s yet a further sign of Perry’s sloppiness that he thinks that the Heartbeat Law makes conception a decisive point.

Law & the Courts

Tomorrow’s Kansas Referendum on Abortion


The New York Times would have you believe that Kansans will be voting tomorrow “whether to remove abortion rights protections from their State Constitution.” But the Kansas constitution does not set forth any actual “abortion rights protections.” Rather, in a wild ruling in 2019, the Kansas supreme court held that the declaration in section 1 of the Kansas Constitution Bill of Rights, dating from 1859, that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness” somehow means that any restriction on abortion must be subjected to strict scrutiny. In his impressive dissent, Justice Caleb Stegall castigated the majority for “abandon[ing] the original public meaning of section 1” and for “paint[ing] the interest in unborn life championed by millions of Kansans as rooted in an ugly prejudice.”

Tomorrow’s referendum gives the people of Kansas the opportunity to override the state supreme court’s ruling. The referendum would not adopt any policies on abortion but would instead reclaim for the people and their elected representatives the power to set abortion policy in the state. That is a step that all Kansans faithful to the state constitution ought to support, but it appears that many Kansans who oppose the abortion laws that they expect the legislature to adopt would prefer to surrender to the supreme court’s usurpation.

Law & the Courts

This Day in Liberal Judicial Activism—August 1


1996—One generation of liberal judicial activists is more than enough. But President Clinton obviously doesn’t agree, as he appoints Dean D. Pregerson, son of arch-activist Ninth Circuit judge Harry Pregerson, to a federal district judgeship in California.  

A year earlier, Clinton had already nominated Berkeley law professor William A. Fletcher to join his mother Betty Binns Fletcher on the Ninth Circuit. But Fletcher fils won’t get confirmed and appointed until October 1998.  

Law & the Courts

This Day in Liberal Judicial Activism—July 31


1996—The annals of This Day in Liberal Judicial Activism suffer a severe blow, as arch-activist H. Lee Sarokin resigns from the Third Circuit after less than two years of service (on top of his 15 years as a district judge). Imagine what he could have accomplished with more time!  

Even Sarokin’s reason—or, more precisely, his stated reason (see This Day for April 25, 1996)—for resigning is intensely political: he informs President Clinton by letter of his fear that “my decisions will continue to be used against you and others in the upcoming campaign.” In other words, Sarokin resigned in order to minimize the adverse impact that his ongoing rulings would have on the political fortunes of his favored candidates. 

2007—Federal district judge David Hamilton’s reckless invocation of substantive due process to suppress evidence of marijuana and crack cocaine found in the apartment of a criminal defendant ends poorly, as the Seventh Circuit (in United States v. Hollingsworth) unanimously reverses his ruling.  

But Hamilton’s lawless sense of empathy—also manifested in his extraordinary seven-year-long series of rulings obstructing Indiana’s implementation of its law providing for informed consent on abortion—evidently captures the attention of President Obama, who in March 2009 makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.” 

2012—By a vote of 5 to 3, the Missouri supreme court rules (in Watts v. Lester E. Cox Medical Centers) that a statutory cap on non-economic damages in medical malpractice cases violates the right to jury trial set forth in the state constitution. The court overrules its own better-reasoned precedent to the contrary. 

Law & the Courts

This Day in Liberal Judicial Activism—July 29


1994By a vote of 87 to 9, the Senate confirms President Clinton’s nomination of First Circuit chief judge (and Teddy Kennedy’s former chief counsel to the Senate Judiciary Committee) Stephen G. Breyer to the Supreme Court. Breyer replaces retiring Justice Harry A. Blackmun. 
Breyer’s path to the Supreme Court began when President Jimmy Carter nominated him to a newly created seat on the First Circuit on November 13, 1980—after Carter had lost his bid for re-election and after Republicans had won control of the Senate to be formed in January 1981. Less than one month later, on December 9, 1980, the Senate confirmed Breyer to the First Circuit.  
2003Senate Democrats force a third cloture vote on their filibuster of President Bush’s nomination of Texas supreme court justice Priscilla Owen to the Fifth Circuit. With only two Senate Democrats voting yes, the cloture vote fails. Owen, first nominated in May 2001, is ultimately confirmed in May 2005.

Law & the Courts

This Day in Liberal Judicial Activism—July 28


2004—In dissent in Williams v. Attorney General of Alabama, Eleventh Circuit judge Rosemary Barkett opines that an Alabama statute that prohibits the sale of sexual devices (which Barkett also refers to colloquially as “sex toys”) violates substantive due process.  

You might think that a case involving a challenge to the constitutionality of a statute prohibiting the sale of sexual devices would be about sexual devices. But, Barkett tells us, “This case is not, as the majority’s demeaning and dismissive analysis suggests, about sex or sexual devices.” Rather, “[i]t is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships.” 

Law & the Courts

This Day in Liberal Judicial Activism—July 27


2018In a challenge to the Trump Administration’s policies on transgender individuals serving in the military, federal district judge Marsha Pechman orders President Trump to provide plaintiffs information and documents bearing on his deliberations and communications in connection with adoption of the policies. Nearly a year later, a unanimous Ninth Circuit panel (in Karnoski v. Trump) will vacate Pechman’s discovery order and fault her for failing to give proper consideration to the president’s executive privileges. 

Law & the Courts

This Day in Liberal Judicial Activism—July 26


1983—Barely four months after reiterating that abrogation of the state’s common-law sovereign immunity is a matter for the legislature, not for the courts, the Oklahoma supreme court (in Vanderpool v. State) abolishes Oklahoma’s sovereign immunity. The majority explains that it is imposing “what we perceive to be the more just and equitable view.”  

2018—Federal district judge Timothy J. Corrigan rules in Adams v. School Board of St. Johns County that a Florida school board’s policy of assigning bathrooms by sex violates the statutory (Title IX) and constitutional (Equal Protection Clause) rights of a transgender student who identifies as male. 

2021—In a stunningly stupid analysis of economic competition (in 303 Creative LLC v. Elenis), Tenth Circuit judge Mary Beck Briscoe opines that a company, 303 Creative, that proposes to offer “custom” wedding websites somehow must have something “similar to a monopoly” in its product market: No matter how intense the competition is in the market for “custom-made wedding websites,” 303 Creative is by definition (as Briscoe misunderstands things) the only participant in the market defined as “custom-made wedding websites of the same quality and nature as those made by [303 Creative].”  

Briscoe’s bonkers analysis comes not in an antitrust case but in a case addressing the question whether Colorado may compel a company to offer wedding websites that “celebrate same-sex marriages” if it is going to offer wedding websites that celebrate male-female marriages. Briscoe acknowledges that the creation of wedding websites is “pure speech” and that Colorado is seeking to impose a “content-based restriction” that would compel 303 Creative to utter speech celebrating same-sex marriage. But because “LGBT consumers will never be able to obtain wedding-related services of the same quality and nature as those that [303 Creative] offer[s],” Briscoe concludes that the state of Colorado has a compelling interest in coercing 303 Creative to engage in such speech. 

As Chief Judge Timothy Tymkovich observes in dissent, Briscoe’s ruling, “[t]aken to its logical end, [would mean that] the government could regulate the messages communicated by all artists, forcing them to promote messages approved by the government in the name of ‘ensuring access to the commercial marketplace.’” (Emphasis in original.) 

In February 2022, the Supreme Court will grant 303 Creative’s petition for certiorari. The case will be heard in the Court’s October 2022 Term.  

Law & the Courts

Biden Nominates an Activist to the Ninth Circuit

Roopali Desai testifies before the Senate Judiciary Committee on Capitol Hill in Washington, D.C., July 13, 2022. (Sarah Silbiger/Reuters)

In June, President Joe Biden nominated Phoenix-based attorney Roopali Desai to the U.S. Court of Appeals for the Ninth Circuit.

The announcement was met with sparse local fanfare and a supportive statement from Arizona’s two Democratic senators, for one of whom Desai has been both a campaign donor and an attorney dating back at least a decade.

It should have received more attention, and a lot more scrutiny.

Because last Wednesday, when Desai appeared before the Senate Judiciary Committee and painted herself as an attorney who has represented “both sides” and who would, as a judge, “apply the rule of law objectively,” Arizonans raised our eyebrows. This self-portrait is not one that we are familiar with.

In reality, Desai has made a name for herself in Democratic circles as a partisan bulldog-for-hire akin to Marc Elias, and her clients now “have . . . the ear of the White House,” according to one of her colleagues.

The boutique law firm where she works as partner has counted Senator Bernie Sanders’s 2016 presidential campaign among its political clients, with the nominee herself representing a host of left-wing entities ranging from the Democratic Party to the Green Party, with many more to boot.

It would be unfair to tie a public defender to an unseemly criminal he’s asked to defend or an assistant U.S. attorney to the unpopular case she’s asked to prosecute. That is not the case with this nominee. To the contrary, there is no daylight between Desai, her clients, and the liberal public policies they push.

Her work in the field of education tells part of that story.

In 2017, despite a fierce opposition campaign by the Arizona Education Association, Governor Doug Ducey expanded eligibility for the state’s Empowerment Scholarship Account program. Barely four weeks later, Desai signed on to represent a newly formed group called Save Our Schools Arizona with one express goal: to stop the school-choice expansion. Soon after, she joined its board of directors, where she remains today.

The following election cycle, Desai was named attorney for a multimillion-dollar ballot initiative campaign known as Invest in Ed. The initiative, backed by the teachers’ union, aimed to hike Arizona’s income tax so dramatically that the state would have had the tenth-highest tax rate in the country.

Her conduct would have been questionable for an activist, let alone a measured litigator.

During one deposition, Desai attempted to force a local businessman involved in the anti-tax effort to publicly disclose his and his wife’s personal income level. Later, when a ruling on another matter didn’t go her way, she called the judge “gratuitous and insulting” and said that his order “could be part of a press release written by the Chamber itself.” She then filed a baseless complaint against the governor for urging a “no” vote.

Less than one year later, the nominee filed yet another lawsuit in an attempt to nullify bills approved by the state legislature banning school mask mandates and the instruction of critical race theory, among other priorities. Referring to the mask provision, Desai told the court that, if things did not go her way, children “will be hospitalized and they will die. . . . That is not hyperbole.”

As the case ended, the teachers’ union sent out a press release expressing its “special appreciation” for her by name.

This pattern can be found in other areas of Desai’s activism.

She represented a ballot initiative to legalize recreational marijuana and then joined the National Cannabis Roundtable’s advisory board. She filed a lawsuit to challenge Arizona’s ban on ballot harvesting; then identified elections officials for the transition team of the incoming Democratic secretary of state, Katie Hobbs, who voted against the ban in the state legislature; and then submitted an amicus brief when the ban reached the U.S. Supreme Court.

Such has been Desai’s legal career: leveraging the court system to alter public policy — and then leaning in further.

There is no doubt that she has been successful at the job she chose in courtroom activism. But the job she chose — and the inability thereafter to be a neutral and impartial arbiter of justice that came with it — is precisely what disqualifies her from a lifetime judgeship. Put simply, it is difficult to imagine a single scenario in which it would be appropriate for Desai to rule on issues facing our state.

The Ninth Circuit has enough problems. It does not need a partisan activist filling its ranks.

To protect the integrity of our appeals court, members of the Judiciary Committee would be wise to reject Desai’s nomination out of hand and work with President Biden in the next session of Congress on a nominee better suited for this important position.

Law & the Courts

This Day in Liberal Judicial Activism—July 25


1990—Less than three months after appointing New Hampshire supreme court justice David Hackett Souter to the First Circuit, President George H.W. Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement.

Displaying his usual perspicacity and deploying his full arsenal of clichés, Teddy Kennedy, one of nine Democrats to vote against Souter’s confirmation, rails against Souter: Souter had not demonstrated “a sufficient commitment to the core constitutional values at the heart of our democracy.” His record “raised troubling questions about the depth of his commitment to the role of the Supreme Court and Congress in protecting individual rights and liberties under the Constitution.” His record on civil rights was “particularly troubling” and “reactionary.” On voting rights, he “was willing to defend the indefensible.” He was not “genuinely concerned about the rights of women” and had “alarming” views on Roe v. Wade. He would “turn back the clock on the historic progress of recent decades.”

Alas, as a justice, Souter was far more left-wing on hot-button issues than even Kennedy could have hoped. Contrary to media depictions of him as a “moderate,” Souter read into the Constitution the Left’s agenda on a broad range of issues: for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), imposition of secularism as the national creed, and reliance on foreign law to determine the meaning of the Constitution. 

2018—An Eleventh Circuit panel rules (in  Lewis v. Governor of Alabama) that plaintiffs challenging Alabama’s Minimum Wage Act, which displaced a higher minimum wage adopted by the city of Birmingham, “have stated a plausible claim” that the law “had the purpose and effect of depriving Birmingham’s black citizens equal economic opportunities on the basis of race, in violation of the Equal Protection Clause.”  

The panel’s reasoning has radical implications for further judicial intrusion on the legislative processes. The panel concludes that the allegation that the state law denied 37% of Birmingham’s black wage earners a higher wage, compared to only 27% of white wage earners, would suffice to show “discriminatory impact.” The panel doesn’t say what disparity would be too small. (It would be surprising if lots of routine legislative actions didn’t have a much larger disparate impact.) Nor does it confront the reality that a higher minimum wage could have a disproportionate impact on job loss and on loss of entry-level job opportunities for black workers.  

The panel further cites the 10% disparity as evidence of discriminatory purpose and adds in what it sees as the “rushed, reactionary, and racially polarized nature of the legislative process.” Are we really going to have judges deciding how long a legislative process ought to take? And while the panel finds of special interest the race of the legislators and of the members of the Birmingham city council, it never stops to consider whether they divide along the same lines on economic policy. If these considerations “plausibly imply discriminatory motivations were at play,” then lots of ordinary legislative decisions will be subject to judicial second-guessing. 

In January 2019, the full Eleventh Circuit will vacate the panel’s opinion and grant rehearing en banc, and in December 2019 it will rule that the plaintiffs lacked standing to sue. 

2018—In Freedom from Religion Foundation, Inc. v. Chino Valley Unified School District, a Ninth Circuit panel rules that a school board’s practice of allowing an invocation to be offered at its meetings violates the Establishment Clause. The panel evades the Supreme Court’s rulings approving legislative prayer by contending, implausibly, that the school-board meetings are not legislative in nature. 

Law & the Courts

This Day in Liberal Judicial Activism—July 24


2013—Senate Democrats expedite a confirmation hearing for President Obama’s controversial D.C. Circuit nominee, left-wing Georgetown law professor Cornelia Pillard, whom one former colleague describes as “Reinhardt in a skirt, but less moderate.” (The reference is to Ninth Circuit judge Stephen Reinhardt, who has a strong claim to being the most aggressive leftist ever to sit on a federal court of appeals.)  

At her hearing, Pillard delivers false and deceptive testimony about her own writings—and, despite her usual hostility to sex stereotypes, happily offers one of her own to hide behind: “I am a mother” is part of how she deflects criticism of her equal-protection argument against abstinence-only sex education. 

Some months later, Senate Democrats will abolish the supermajority cloture rule for judicial nominees in order to confirm Pillard and two other D.C. Circuit nominees and thus render the D.C. Circuit a rubber stamp for President Obama’s ideological agenda. 

2018—“Judge [Stephen] Reinhardt fully participated in this case and formally concurred in the majority opinion prior to his death,” asserts Ninth Circuit chief judge Sidney Thomas in an opinion in a case (Altera Corp. v. Commissioner of Internal Revenue) in which the decisive vote on the divided panel is said to have been cast by Reinhardt. (Emphasis added to quote.) 

But Reinhardt died nearly four months earlier, probably before the dissenting judge ever circulated her draft dissent. Further, a judge is free to change his position at any time before an opinion issues, so it is difficult to discern what Thomas’s claim that Reinhardt “formally concurred” might actually mean. 

In a change of course two weeks later, the Ninth Circuit will withdraw the ruling so that a reconstituted panel can decide how to proceed.  

In February 2019, in vacating the judgment in another case in which Reinhardt was said to have posthumously cast the deciding vote (and indeed to have been the author of the majority opinion), the unanimous Supreme Court in Yovino v. Rizo will repudiate chief judge Thomas’s misunderstanding: 

“We are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release. And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”  

Law & the Courts

This Day in Liberal Judicial Activism—July 23


1971—In Calvert Cliffs’ Coordinating Committee v. Atomic Energy Comm’n, D.C. Circuit judge J. Skelly Wright enthusiastically welcomes “what promises to become a flood of new litigation—litigation seeking judicial assistance in protecting our natural environment”: 

Several recently enacted statutes attest to the commitment of the government to control, at long last, the destructive engine of material “progress.” But it remains to be seen whether the promise of this legislation will become a reality. Therein lies the judicial role. In these cases, we must for the first time interpret the broadest and perhaps most important of the recent statutes: the National Environmental Policy Act of 1969. We must assess claims that one of the agencies charged with its administration has failed to live up to the congressional mandate. Our duty, in short, is to see that important legislative purposes, heralded in the halls of Congress, are not lost or misdirected in the vast hallways of the federal bureaucracy. [Emphasis added.] 

In a 1983 law-review article, then-D.C. Circuit judge Antonin Scalia will identify Calvert Cliffs as having “beg[u]n the judiciary’s long love affair with environmental litigation” and will contrast Wright’s nearly boundless conception of the judicial role with the much more modest understanding set forth in Marbury v. Madison. Further, as Scalia observes, Wright doesn’t even bother to explain what the Calvert Cliffs’ Coordinating Committee is and how it has standing to challenge the agency’s action: 

From reading the opinion, one is unable to discern whether the Calvert Cliffs’ Coordinating Committee, which brought construction of the Calvert Cliffs nuclear generating plant to a halt, was composed of environmentalists, or owners of land adjacent to the proposed plant, or competing coal-generating power companies, or was even, perish the thought, a front for the Army Corps of Engineers, which is reputed to prefer dams to atoms.