Statutory Interpretation à la Sotomayor

by Ed Whelan

In Advocate Health Care Network v. Stapleton, issued today, Justice Kagan wrote a unanimous opinion for the Court on an ERISA issue. But Justice Sotomayor somehow saw fit to write a brief concurring opinion, the heart of which is this badly confused series of observations (citations—none to precedents—omitted; emphasis added):

I join the Court’s opinion because I am persuaded that it correctly interprets the relevant statutory text. But I am nonetheless troubled by the outcome of these cases. As the majority acknowledges, the available legislative history does not clearly endorse this result. That silence gives me pause: The decision to exempt plans neither established nor maintained by a church could have the kind of broad effect that is usually thoroughly debated during the legislative process and thus recorded in the legislative record. And to the extent that Congress acted to exempt plans established by orders of Catholic Sisters, it is not at all clear that Congress would take the same action today with respect to some of the largest health-care providers in the country.

If Sotomayor is “persuaded” that Kagan’s opinion “correctly interprets the relevant statutory text,” why is she “nonetheless troubled”? For two reasons, apparently.

First, because the legislative history is silent on the question. Sotomayor has zero legislative experience, yet she imagines herself competent to assess what sort of decisions are “usually thoroughly debated during the legislative process.” And even if she were competent to make such an assessment, how could it matter that the “silence” of legislative history “does not clearly endorse” the statutory reading? Is she suggesting a rule under which the best statutory reading must also be supported by the legislative history, at least where she would expect the matter to have been “thoroughly debated”? So where the legislative history is silent, would she then sometimes pick an inferior statutory reading?

Second, Sotomayor muses that “it is not at all clear that Congress would take the same action today”?!? But what possible bearing does that have on interpreting an existing statute?

Former Minnesota Supreme Court Justices Support Stras Nomination

by Jonathan H. Adler

On Friday, the Minneapolis Star-Tribune published a letter by three former Minnesota Supreme Court justices sent to Senate leadership and Minnesota’s Senate delegation supporting President Trump’s nomination of Justice David Stras to the U.S. Court of Appeals for the Eighth Circuit. It reads in part:

We write to urge that the Senate Judiciary Committee and the U.S. Senate act expeditiously to confirm the nomination of Minnesota Associate Supreme Court Justice David R. Stras to the Eighth Circuit Court of Appeals. Justice Stras has all the attributes and qualifications necessary to make an excellent circuit court judge. We have firsthand knowledge that this is true given that we served with him as justices on the Minnesota Supreme Court. . . .

As his colleagues on the court, we have gained firsthand insights into his abilities and qualifications. He is a hard worker and was always prepared for the cases that came before us. He was a valued voice during court conferences. While he looks at issues from a definite and well-defined perspective, he evaluates legal issues with objectivity and an open mind, traits that are not universal. We found him to be independent and impartial in his approach to the law.

As noted in an accompanying op-ed, the three authors of the letter — Alan Page, Helen Meyer and Paul Anderson – are not generally viewed as conservative themselves. Yet they support confirmation of Justice Stras because his qualifications, intellect and temperament make him well suited for the federal courts.

This Day in Liberal Judicial Activism—June 5

by Ed Whelan

1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime is voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it mis-imagines contemporary standards to be. (See This Day for February 18, 1972.)

This Day in Liberal Judicial Activism—June 3

by Ed Whelan

1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim.

In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.”

This Day in Liberal Judicial Activism—June 1

by Ed Whelan

1992—In Davis v. Davis, the Tennessee supreme court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail…” Daughtrey extrapolates 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. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton appoints Daughtrey to the Sixth Circuit.)

Seventh Circuit’s Confusion on Stereotyping

by Ed Whelan

In a ruling yesterday, a panel of the Seventh Circuit affirmed the grant of a preliminary injunction requiring a school district to allow a girl who identifies as male to use the boys’ restrooms at her high school. The panel holds that Title IX and the Equal Protection Clause of the Constitution both prohibit discrimination against an individual based on that individual’s failure to conform to sex stereotypes. But they somehow completely miss the larger point that the transgender ideology is built on sex stereotypes.

As a result, the panel has things exactly backwards. It is sex stereotyping to say that a girl who looks like a boy should use the boys’ restroom. But that is exactly the relief that the student seeks and that the panel has ordered. It is patently not sex stereotyping to say that a girl who behaves, walks, talks, and dresses in a manner that doesn’t conform to sex stereotypes should nonetheless be treated as a girl and should use the girls’ restroom.

I’ll add just a couple of additional observations:

1. According to the panel, Seventh Circuit precedent establishes a “low threshold” on the likelihood-of-success inquiry for preliminary injunctive relief. Specifically, a plaintiff seeking such relief need “only show that his chances to succeed on his claims are ‘better than negligible.’” So even the panel’s mistaken ruling should be understood as saying no more than that the student’s legal claims are “better than negligible.”

2. The panel’s embrace of the transgender ideology—namely, that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective conception of gender identity is the genuine reality that demands recognition and respect—is evident from the outset of its opinion. We are told at the outset that the student’s request to use the boys’ restroom “is not so simple because Ash is a transgender boy.” (Emphasis added.) I wonder how many readers keep clearly in mind that that means that Ash is a girl who identifies as male. Why not instead say that the request “is not so simple because Ash is a biological female who identifies as male”? Relatedly, the opinion uses male pronouns for Ash.

This Day in Liberal Judicial Activism—May 31

by Ed Whelan

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

 

This Day in Liberal Judicial Activism—May 29

by Ed Whelan

1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.” The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge. One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role. (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk? Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf. An excerpt from Justice Scalia’s classic dissent:

“If one assumes…that the PGA TOUR has some legal obligation to play classic, Platonic golf…then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

 

This Day in Liberal Judicial Activism—May 28

by Ed Whelan

1963— Retired justice Felix Frankfurter, having witnessed the appointment of his replacement, Arthur Goldberg, create a majority bloc of liberal activists on the Supreme Court, writes to Justice Harlan to lament “the atmosphere of disregard for law and to a large extent of the legal profession that now dominates the present Court and the Court on which I sat.” (Source: Seth Stern & Stephen Wermiel, Justice Brennan.) Decades later, the situation will be transformed—but, alas, for the worse—as “a large extent of the legal profession,” having been indoctrinated by the disciples of the Warren Court, will display a similar “disregard for law.”

2013—In two 5-4 rulings (with Justice Kennedy joining the four liberals), the Supreme Court creates more confusion over federal habeas procedures.

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, creates an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996. Never mind, as Justice Scalia points out in dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.”

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadens a purportedly “narrow exception” that it had created just the previous year. As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in that earlier ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.”

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his dissent in the earlier case that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year.

The broader lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings, as those limitations will disappear at the first convenient opportunity.

This Day in Liberal Judicial Activism—May 27

by Ed Whelan

2009—Odd bedfellows, indeed! Supposed constitutional conservative Theodore B. Olson, solicitor general under President George W. Bush, betrays the legal principles that he has purported to stand for over the course of his public career as he joins forces with liberal David Boies, his adversary in Bush v. Gore, to file a lawsuit asking a federal district court in California to invent a federal constitutional right to same-sex marriage.

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

Trump’s First Appellate Nominee Confirmed Over Partisan Opposition

by Jonathan H. Adler

Yesterday, the Senate voted to confirm President Trump’s first nominee to a federal appellate court. On a party-line vote of 52-44, the Senate approved Judge Amul Thapar to an open seat on the U.S. Court of Appeals for the Sixth Circuit.

The partisan vote on Thapar’s nomination suggests that there is no point in Senate Republicans (or the White House) attempting to work with or seeking consultation from Senate Democrats on appellate nominations. There is no question about Judge Thapar’s qualifications, and he was actively supported by both of his home state senators. He currently serves as a federal district-court judge and previously worked as a federal prosecutor. He was also the first individual of Sourth Asian descent confirmed to an Article III court, and will now become the first such individual on the U.S. Court of Appeals for the Sixth Circuit.

If Senate Democrats will oppose someone of Judge Thapar’s background and experience, despite strong home-state support, they will oppose any and all Trump nominees. Faced with such partisan, lockstep opposition, there is simply no reason for the administration to seek input or counsel from Senate Democrats, or for the Senate leadership to respect traditional courtesies, such as the “blue slip.” Not surprisingly, the Washington Post reports “blue slip” based obstruction may go away. (For more on the use of the blue slip, here are VC posts from 2013 and 2005 on the blue slip and how it compares to other forms of obstruction.)

It would be one thing if Senate Democrats sought to play hardball and force compromise picks for seats in states with one or two Democratic senators, but that is not what Senate Democrats have opted to do. If they are going to oppose Trump nominees across the board, they cannot complain when Senate Republicans refuse to acquiesce to their obstruction.

This Day in Liberal Judicial Activism—May 26

by Ed Whelan

2009—Implementing his threat to select a justice who will make decisions based on empathy, President Obama nominates Second Circuit judge Sonia Sotomayor to fill the seat of retiring justice David Souter. During the confirmation process, the “wise Latina” (at least in her own self-conception) will demoralize and disgust her supporters on the Left, as she implausibly masquerades as a caricature of a judicial conservative and even emphatically repudiates Obama’s empathy standard.

Kevin Newsom’s Insightful Take on The Slaughter-House Cases

by Michael Stokes Paulsen

The Supreme Court’s decision in The Slaughter-House Cases (1873) remains, at least in academic circles, a hotly contested battleground of competing legal theories concerning the meaning of the Fourteenth Amendment’s Privileges or Immunities Clause.  In a recent post at the Reason.com website’s “Hit and Run” Blog, Damon Root picked up on this debate with mild criticism of an article by Kevin Newsom, who was recently nominated to the Eleventh Circuit.  Newsom’s article appeared in the Yale Law Journal seventeen years ago, in 2000, and is entitled Setting Incorporationism Straight: A Reinterpretation of the Slaughter-House Cases. (A little quick subtraction reveals that the article was published when Newsom, now 44, was just 27 years old – right after his clerkships for Diarmud O’Scannlain on the Ninth Circuit and David Souter on the Supreme Court.)

As it happens, I’ve read Newsom’s article – albeit some time ago – and found it remarkably good.  (I have quickly re-read it to refresh my understanding.)  Although I am not sure I agree with Newsom’s analysis on all points, it is extremely instructive – in addition to being carefully and engagingly written.  It is a tour de force of legal scholarship.  If I were to assign students just one law-review article on Slaughter-House as supplemental reading, I believe it would be Newsom’s.  It carefully and fairly sets forth the debate over the case; it treats with precision the standard criticisms of the majority opinion; it provides valuable historical and legal context; and it articulates a clear thesis carefully critiquing the “standard” criticisms of the decision.

Keep reading this post . . .

This Day in Liberal Judicial Activism—May 24

by Ed Whelan

2016—Federal district judge Michael H. Watson rules (in Ohio Organizing Collaborative v. Husted) that an Ohio law that altered the period for early in-person voting from 35 days before Election Day to 29 days before Election Day violates the Equal Protection Clause and the Voting Rights Act.

Three months later, a divided panel of the Sixth Circuit (with Obama appointee Jane Branstetter Stranch in dissent) will reverse Watson’s ruling. In his majority opinion, Judge David McKeague explains that the Ohio law “applies even-handedly to all voters” and “continues to provide generous, reasonable, and accessible voting options to Ohioans.” Indeed, Ohio “is a national leader when it comes to early voting opportunities,” and “a third of the states offer no early voting.” McKeague labels “astonishing” the proposition that Ohio’s previous law “established a federal floor that Ohio may add to but never subtract from.” Such a proposition “would discourage states from ever increasing early voting opportunities, lest they be prohibited from later modifying their election procedures in response to changing circumstances.”

This Day in Liberal Judicial Activism—May 23

by Ed Whelan

1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

This Day in Liberal Judicial Activism—May 22

by Ed Whelan

1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

2015—First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”

This Day in Liberal Judicial Activism—May 20

by Ed Whelan

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

This Day in Liberal Judicial Activism—May 19

by Ed Whelan

2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other…and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunks rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex.