This Day in Liberal Judicial Activism—July 7

by Ed Whelan

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

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

Posner’s ‘Common Sense’

by Ed Whelan

It’s quite an achievement to make federal district judge Jed Rakoff seem reasonable by comparison, but that’s exactly what Seventh Circuit judge Richard Posner manages to do in this Slate dialogue on whether federal judges should be subject to age limits.

Here’s how Posner supports his position that non-lawyers should be appointed to the Supreme Court:

A brilliant businessman, a brilliant politician, a brilliant teacher might make an excellent judge or justice and greatly improve a court, relying on brilliant law clerks for the legal technicalities, which anyway receive far more attention from judges than they should, because most of the technicalities are antiquated crap. [Emphasis added.]

Quoting Rakoff, Posner states:

I strongly disagree with the following: “that there is something to be said for each side of most issues; that careful distinctions therefore matter; that a decision that cannot be supported by reason is essentially lawless; that in the long run the fairness of procedures is as important as the substantive results; that being a good judge is not a popularity contest; and that protecting the rule of law requires eternal vigilance. . . .” I think most of what I’ve just quoted is flatly wrong. It’s not true that there’s something to be said for each side of most issues; that a decision must be supported by “reason,” whatever that means exactly, to avoid lawlessness; personally, I prefer common sense to “reason.” [Emphasis added.]

In case you’re wondering what Posner’s “common sense” generates, I’ll point you to some passages from the newest of his series of streams-of-consciousness-of-rambling-thoughts-masquerading-as-books, grandiosely titled The Federal Judiciary: Strengths and Weaknesses, to be published in August. (I have a galley version and hope to blog more extensively about the mess soon.)

Posner argues that Plessy v. Ferguson (1896), which held that racial segregation of public facilities did not violate the Constitution, “was ‘right’ for its time” because “[i]t is unlikely that the Southern states would have obeyed [a contrary] ruling, and beyond unlikely that the federal government would have attempted to use force to enforce the ruling.”

Ditto for Korematsu v. United States (1944), which upheld an executive order by FDR that forced Japanese-Americans into internment camps. Yeah, the executive order proved “to have been mistaken” about the risk of Japanese-American support for a Japanese invasion of the West Coast, and indeed “seems never to have had a convincing basis.” “But I imagine,” writes Posner, “that the motive behind the order was not fear of a Japanese invasion but a desire to demonstrate to the American people that the government would stop at nothing to defeat the enemy.” So if you’re “demonstrating . . . an absolute commitment to war and victory,” then common sense says you get a pass on forcing your fellow citizens into internment camps.

Posner also invokes common sense in defense of Justice Oliver Wendell Holmes’s notorious opinion in Buck v. Bell (1927), upholding a Virginia law authorizing the involuntary sterilization of supposedly “feeble-minded” individuals. Posner’s speaks approvingly of this most controversial passage of Holmes’s opinion, “in which Holmes combined enthusiasm for the Virginia law with a note of levity”:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U.S. 11. Three generations of imbeciles are enough.  

Posner evidently regards the last sentence as the “note of levity.” So what, as he points out, that neither Carrie Buck nor her mother nor her child “were mental defectives,” for “this could not have been known by Holmes.” Posner admires Holmes as someone who “acknowledges and accepts the role of emotion in judicial decision making,” and he praises Holmes’s opinion in Buck v. Bell as “a striking illustration of a persistent judicial tendency to base decisions on personal experiences and values, as well as—or in place of—conventional legal reasoning.” (He does note that the eugenics movement for which Holmes had enthusiasm “was later discredited.”)

So there you have it: on how judges should decide cases, a stark choice between Posner’s purported “common sense” and the “antiquated crap” of “conventional legal reasoning.” (By the way, I’m open to serious arguments in support of these and other unpopular decisions, but any such arguments should rest on law, not on a judge’s own perception of common sense.)

This Day in Liberal Judicial Activism—July 6

by Ed Whelan

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

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

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

This Day in Liberal Judicial Activism—July 5

by Ed Whelan

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


This Day in Liberal Judicial Activism—July 4

by Ed Whelan

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

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

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

Unhinged Attack on Justice Gorsuch

by Ed Whelan

No one will ever accuse Slate’s Mark Joseph Stern of measured and dispassionate legal analysis. Last Wednesday, just two days after labeling Justice Gorsuch “an uncompromising reactionary and an unmitigated disaster for [euphemism alert!] the progressive constitutional project,” Stern posted a short essay that condemned Gorsuch’s dissent in Pavan v. Smith as “an amateurish effort to justify anti-gay discrimination through deeply dishonest analysis and an outright untruth.” As it happens, Stern’s pejorative labels apply much more aptly to his own piece.

First, some brief background:

An Arkansas statute (§ 20-18-401(f)(1)) sets forth the general rule that if a mother is married at the time she gives birth to a child, “the name of the husband shall be entered on the [birth] certificate as the father of the child.” In their certiorari petition, “two married same-sex couples” who “conceived their children through anonymous sperm donation” argued that the statute’s failure to entitle them to have the names of both members of the couple on the birth certificate violated their constitutional rights. The Arkansas supreme court had ruled against them on this claim.

In Pavan, a per curiam majority summarily reversed the ruling below by the Arkansas supreme court. That is, the majority not only granted the petition for certiorari; it also simultaneously reversed the ruling below without allowing the usual briefing and oral argument before the Court.

The actual divide between the majority and the three-justice dissent in Pavan was over whether the ruling below by the Arkansas supreme court was a proper candidate for summary reversal. Gorsuch’s dissent (joined by Justices Thomas and Alito) is framed entirely around the standard for summary reversal and never actually expresses a conclusion on the constitutional question the case presents. Here’s how the dissent begins:

Summary reversal is usually reserved for cases where “the law is settled and stable, the facts are not in dispute, and the decision below is clearly in error.” Schweiker v. Hansen, 450 U. S. 785, 791 (1981) (Marshall, J., dissenting). Respectfully, I don’t believe this case meets that standard.

And in his last full paragraph, Gorsuch concludes that “it seems far from clear what here warrants the strong medicine of summary reversal.”

Some observations on Stern’s attack:

1. Stern doesn’t even mention that Pavan involved a summary reversal, much less that the question whether summary reversal was proper was at the core of the dissent’s argument or that the dissent didn’t actually express a bottom-line judgment on the constitutional question. How much easier it is just to fling the “anti-gay” epithet.

2. Here’s Stern’s charge of the “outright untruth” (or, in the words of the piece’s title, the “huge factual error”) that Gorsuch supposedly committed:

[Gorsuch] wrote that the court should have dismissed the appeal because “in this particular case and all others of its kind, the state agrees, the female spouse of the birth mother must be listed on birth certificates too.” What? That issue lay at the heart of this case—but Gorsuch has it exactly backward: Arkansas explicitly refused to list “the female spouse of the birth mother” on birth certificates. That’s how the case wound up at the Supreme Court in the first place. [Emphasis in original.]

Stern’s account is badly confused and confusing, largely because he hides from his readers the actual course of developments in the case. Before the Arkansas supreme court, the solicitor general of Arkansas specifically conceded that another statute that provides that a “child born by means of artificial insemination to a woman who is married at the time of the birth of the child shall be presumed to be the child of the woman giving birth and the woman’s husband” (emphasis added) “fails equal protection under the plain old rational basis standard” and that the court, as a remedy, should “either read or revise the word husband in the statute to mean spouse.” (Appendix to certiorari petition at 82a-83a; see also Arkansas brief in opposition to certiorari petition at 1-2 (repeating concession).) As Gorsuch notes, the state also reads this statute to “control[] how birth certificates are completed in cases of artificial insemination.”

Further, the couples in the case had—pursuant to an order of a lower court—already received birth certificates listing both members of the couple. As the Arkansas supreme court pointed out (p. 13), the state was not challenging on appeal the issuance of those birth certificates. (See also Arkansas brief in opposition to certiorari petition at I, 1, 7, 13, 25 (repeatedly describing such birth certificates as “valid”).)

3. As for Gorsuch’s purportedly “deeply dishonest analysis,” Stern writes:

[Gorsuch] insisted [petitioners] should have challenged the “artificial insemination statute,” not the state policy refusing to list same-sex parents on birth certificates. This reasoning makes no sense. The plaintiffs cited the artificial insemination statute only to prove that Arkansas already listed non-biological parents on birth certificates. They had no desire to overturn it; they merely used it as evidence that Arkansas was not extending a key marital benefit to same-sex couples. Did Gorsuch simply not understand this extremely basic aspect of the case? [Emphasis in original.]

It’s Stern who misunderstands Gorsuch’s argument. Gorsuch did not “insist” that petitioners should have challenged the other statute. He instead presented the state’s position that it should have done so, in support of his broader position that summary reversal wasn’t proper given the complexities of the case. In other words, the petitioners and the state had a fundamental disagreement about the meaning and import of this other statute. Stern simply takes the petitioners’ side without even informing his readers of the state’s contrary position.

Perhaps the petitioners’ position on this matter is correct. (Gorsuch never says otherwise.) Perhaps not. At the very least, this dispute over the meaning—not the constitutionality—of a provision of state law is one that the Court is ill-positioned to resolve. (The Court’s usual practice is to recognize a state’s highest court as the authoritative expositor of what state law means. The Arkansas supreme court hasn’t yet spoken to this question. What weight, if any, it would give to the executive branch’s reading is unclear.)

In sum, Stern badly fails to engage the actual bases of Justice Gorsuch’s dissent.

This Day in Liberal Judicial Activism—July 1

by Ed Whelan

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

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

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

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


This Day in Liberal Judicial Activism—June 30

by Ed Whelan

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

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


This Day in Liberal Judicial Activism—June 29

by Ed Whelan

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

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:

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

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

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

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

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

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

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

This Day in Liberal Judicial Activism—June 28

by Ed Whelan

2000—In sharp defiance of precedent governing facial challenges, the Supreme Court, by a vote of 5 to 4, rules in Stenberg v. Carhart that Nebraska’s ban on partial-birth abortion is unconstitutional. (As discussed here, the Court’s 2007 ruling on the federal partial-birth abortion ban in Gonzales v. Carhart corrects Stenberg’s error on the standard for facial challenges.)

2000—When does a criminal law setting forth a content-based prohibition on speech not violate the Supreme Court’s First Amendment precedents? When it suppresses speech by opponents of abortion. As Justice Scalia states in dissent from the Court’s ruling in Hill v. Colorado, “like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts.”

2004—In Rasul v. Bush, a majority of the Supreme Court rules that the federal habeas statute—which authorizes federal district courts, “within their respective jurisdictions,” to entertain habeas applications by persons claiming to be held in custody in violation of the laws of the United States—may properly be invoked by aliens detained by the United States military overseas, outside the sovereign borders of the United States and beyond the territorial jurisdictions of all its courts. This “judicial adventurism of the worst sort” contradicts a longstanding precedent and, as Justice Scalia points out in dissent, has “breathtaking” consequences, as it permits aliens captured in foreign theaters of active combat to bring habeas petitions against the Secretary of Defense and thus enables those aliens to “forc[e] the courts to oversee one aspect of the Executive’s conduct of a foreign war.”

University of Texas Sued — Again

by Roger Clegg

The University of Texas has been sued, again, for its racially discriminatory undergraduate-admissions policy. This time, the claim has been brought in state court, and the allegation is that the policy violates the state constitution’s ban on such discrimination. It’s asserted that the “diversity” exception that have been carved out of federal antidiscrimination law in student admissions doesn’t exist in Texas law.

The lawsuit has been brought by Students for Fair Admissions (SFFA) — a nonprofit membership organization made up of over 21,000 students, parents, and others. SFFA has members who were recently rejected from UT; its president is Edward Blum, who was the principal force behind Fisher v. University of Texas, which twice went to the U.S. Supreme Court. SFFA also has pending lawsuits against Harvard and the University of North Carolina–Chapel Hill.

This is great news, and kudos to Mr. Blum, his lawyers, and of course most of all to the SFFA. It’s important for universities that insist on engaging in this sort of discrimination to know that the political and legal pressure on them to stop will be unremitting and resourceful, and that message is being sent, loud and clear. As the press release notes: “According to a Gallup Poll conducted days after Fisher was decided last year, ’seven in 10 American say merit should be the only basis for college admissions’ and ‘65% disagree with the Supreme Court decision allowing race to be a factor.’”

This Week in Judicial Supremacist Arrogance (Continued): Planned Parenthood v. Casey

by Michael Stokes Paulsen

This Thursday marks the twenty-fifth anniversary of the worst Supreme Court decision of all time.   Planned Parenthood v. Casey is worse than Roe, which itself ranks among the worst decisions of all time.  Casey reaffirmed Roe’s creation of a right to abortion – a constitutional right of some human beings to kill other distinct, living human beings.  Roe was textually, historically, and morally indefensible. Casey is even worse, and what makes it worse was the Court’s full awareness of the wrongness of Roe in all these respects, the deliberate attempted entrenchment of Roe notwithstanding this awareness, and the base motivation for doing so. 

The justices in Casey knew Roe was indefensible.  They reaffirmed it anyway, not because a majority thought Roe was right – it is plain that they did not – but because a controlling bloc thought that public perceptions of the justices, and the justices’ own self-image required them to adhere to Roe “whether or not mistaken.”  The justices’ power depended (or so they seemed to feel) on sticking to errors on which the Court had staked its authority, so that all those “tested by following” would continue to trust the Court and accede to its proclamation of authority to “speak before all others” on constitutional questions. 

Casey is the supreme example of judicial supremacist arrogance.  The decision is wrong, legally.  (The reliance on stare decisis was an obviously contrived pretext.)  The decision was wrong, morally, upholding one of the worst ongoing moral atrocities in the history of humankind.  And the decision was wrong, knowingly, deliberately and intentionally.  It was done for the most craven and reprehensible of reasons: vanity, self-importance, and a desire to further personal power and image. 

There’s much more that could be said, but I said most of it fifteen years ago, in a tenth-anniversary article for the Notre Dame Law Review (linked above, in the first line of this post) and five years ago in two short essays for the web magazine The Public Discourse, on the occasion of the twentieth anniversary of Casey.  (See here and here.) 

June 29, 1992 is a day that shall live in constitutional infamy.       

This Day in Liberal Judicial Activism—June 27

by Ed Whelan

1979—Justice Brennan’s majority opinion in United Steelworkers v. Weber holds that the provisions of Title VII that make it unlawful to “discriminate … because … of race” in hiring do not in fact make it unlawful to discriminate because of race in hiring—not, that is, when the victims are white. Specifically, Brennan, scorning the “literal interpretation” of Title VII, opines that private employers may adopt racial hiring quotas that disfavor whites in order to “eliminate manifest racial imbalances in traditionally segregated job categories.”

2005—By 5-4 votes, the Supreme Court rules that Ten Commandments displays in Kentucky courthouses violate the Establishment Clause (McCreary County v. ACLU) but that a Ten Commandments display on the Texas State Capitol grounds does not (Van Orden v. Perry). In the Kentucky case, Justice Souter’s majority opinion (joined by Stevens, O’Connor, Ginsburg, and Breyer) darkly observes, “We are centuries away from the St. Bartholomew’s Day massacre and the treatment of heretics in early Massachusetts, but the divisiveness of religion in current public life is inescapable.” But it is rulings like Souter’s that are the primary cause of any divisiveness.

Justice Breyer, who provides the decisive fifth vote in each case, explains that for “difficult borderline cases” that are “fact-intensive,” there is “no [Establishment Clause] test-related substitute for the exercise of legal judgment.” That judgment, be assured, “is not a personal judgment” but “must reflect and remain faithful to the underlying purposes” of the Religion Clauses and “must take account of context and consequences.” The particular factor that Breyer finds “determinative” in the Texas case—but don’t jump to the foolish conclusion that anything similar might be determinative in any other case—is that “40 years passed in which the presence of this monument, legally speaking, went unchallenged.” By contrast, the Kentucky displays had a “short (and stormy) history.” And “a more contemporary state effort to focus attention upon a religious text is certainly likely to prove divisive in a way that this longstanding, pre-existing monument has not.”

Thus, under Breyer’s view (as well as that of the other members of the Kentucky majority), American citizens today lack the power that their parents and grandparents had to have our governments affirm, acknowledge, and encourage respect for our religious heritage.


This Week in Judicial Supremacist Arrogance: City of Boerne v. Flores at Twenty

by Michael Stokes Paulsen

I’m stealing a page from Ed Whelan’s playbook and launching a series of (occasional) commemorations of acts of unbridled judicial chutzpah.  Ed’s series focuses on judicial activism – judicial interpretations that flout governing law.  Mine will highlight assertions of judicial supremacy – the Supreme Court’s arrogant claim that its interpretations of the Constitution, right or wrong, are binding on all other actors in our constitutional system.

The claim of judicial supremacy of course cannot be squared with constitutional text, structure, or evidence of original understanding. (This is a recurrent theme in my academic writing.  Two years ago, for Bench Memos, I wrote a series of five posts dedicated to this theme: here, here, here, here, and here.)   Nonetheless, predictably enough, the claim of judicial supremacy is affirmed by a wealth of self-serving judicial precedent. 

The immediate occasion for starting this series is the twentieth anniversary, this past Sunday, of City of Boerne v. Flores.  (Planned Parenthood v. Casey, winner of the Grand Prize for judicial arrogance, suffers its twenty-fifth anniversary later this week.) 

In City of Boerne, the Court held that the requirements of the Religious Freedom Restoration Act of 1993 (“RFRA”) were unconstitutional insofar as they applied to state governments. The Court held – contrary to text, structure, history, and precedent – that Congress’s power to “enforce” the provisions of the Fourteenth Amendment against states, pursuant to section five of the amendment, is limited to enforcing the Court’s understanding of those provisions. 

RFRA took as its starting point a broad understanding of the religious liberty protected by the Free Exercise Clause of the First Amendment. The Court had, just three years earlier, in Employment Division v. Smith (1990), adopted a narrow reading of the Free Exercise Clause – departing from its earlier precedents, which had adopted a broader view of the clause.  Congress sought to restore that earlier, broader protection of religious liberty by means of a statute.  The Court in City of Boerne held that Congress was constitutionally forbidden from enforcing against state governments any broader understanding of religious liberty than set forth in the Court’s current judicial doctrine – even though that broader understanding had been the Court’s own doctrine for nearly thirty years. 

The Court in City of Boerne seemed to take umbrage at the impudence of Congress in not going along with the Court’s new understanding in Smith.  The Court’s framing of the case fairly drips with contempt for Congress’s act of constitutional disagreement.   Congress’s rather direct disagreement with Smith appeared to be a significant factor in the Court’s decision. “Legislation which alters the meaning of the Free Exercise Clause cannot be said to be enforcing the Clause,” the Court explained.  (Didn’t they know?  Only the judiciary can alter the meaning of the Free Exercise Clause!)

How many different ways is City of Boerne wrong?  Put to one side for a moment the fact that Employment Division v. Smith was a deeply questionable decision on the merits of its interpretation of the Free Exercise Clause in the first place. (The broad understanding of Free Exercise is the better view.  But that is not my primary point here.)  The core problem with City of Boerne is the judicial supremacist conceit that the Court is the only truly authoritative constitutional interpreter. The Constitution’s meaning, under the approach of the Boerne opinion, actually goes up (and down) with the Supreme Court’s decisions.  Congress’s power “to enforce” generally-stated limitations on state governments “by appropriate legislation” is limited to implementing the Court’s diktats.  Congress’s enforcement power is hitched to the Court’s activist wagon, wherever it goes at any particular point in time.  Congress has no independent interpretive power in enforcing the Fourteenth Amendment.  The Supreme Court is the boss.  Congress is the assistant or adjunct. 

There are at least four related reasons why this is conception is way off the mark. 

Keep reading this post . . .

Today’s Big Victory for Religious Liberty

by Ed Whelan

In Trinity Lutheran Church v. Comer, the Supreme Court ruled today that the state of Missouri violated the Free Exercise rights of a church when it excluded religious organizations from taking part in a program of grants for playground resurfacing. As Chief Justice Roberts summed things up near the end of his majority opinion for six justices, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.”

Contradicting early predictions of a ruling sharply divided on ideological grounds, Justice Kagan joined the Chief’s opinion in full, and Justice Breyer wrote an opinion concurring in the judgment. Breyer “agree[s] with much of what the Court says” but (consistent with his general approach) is reluctant to sign on to any broad principle.

Only Justices Sotomayor and Ginsburg dissented. Remarkably, they opined that the Establishment Clause is violated by allowing Trinity Lutheran to take part in the grant program (an argument that the state itself rejected). They also would have held that the Free Exercise Clause allowed Missouri’s exclusion of churches from the grant program.


(Justices Thomas and Gorsuch declined to join one footnote in the Chief’s opinion that they said was “entirely correct” but that they feared “some might mistakenly read” to refuse to apply the “legal rules recounted in and faithfully applied by the Court’s opinion.”)

This Day in Liberal Judicial Activism—June 26

by Ed Whelan

1996—By a vote of 7 to 1 (with Justice Thomas recused), the Supreme Court rules that Virginia’s maintenance of the Virginia Military Institute as an all-male institution violates the Equal Protection Clause. Justice Ginsburg’s majority opinion (for six justices) invents a new standard for assessing the constitutionality of sex-based classifications: Only classifications that have an “exceedingly persuasive justification”—whatever that might mean—will survive.

But not even Ginsburg, the supposed champion of gender equality, can remain entirely faithful to her feminist ideology. Although she rejects VMI’s position that its “adversative” training is “inherently unsuitable” to women, she concedes in a footnote that admitting women to VMI would “undoubtedly” require that VMI “adjust aspects of the physical training programs.”

2002—A Ninth Circuit panel (in Newdow v. US Congress) rules that the recitation in public schools of the words “under God” in the Pledge of Allegiance violates the Establishment Clause.

2003—“Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific”—and spelled out a constitutional right to homosexual sodomy. Such is the quality of insight and analysis offered by Justice Kennedy’s majority opinion in Lawrence v. Texas. Further, in overturning the Court’s 17-year-old precedent in Bowers v. Hardwick, Justice Kennedy blithely abandons the stare decisis principles that he helped cook up in Planned Parenthood v. Casey as a pretense for not overturning the then 19-year-old precedent of Roe v. Wade.

2013—The federal Defense of Marriage Act, enacted in 1996, merely reaffirmed and made crystal clear what Congress had always meant by the term “marriage” in provisions of federal law: a male-female union. It respected and implemented federalism by exercising the federal government’s authority in the realm of federal law.

Unable to muster any coherent attack on DOMA, Justice Kennedy baselessly charges, in his majority opinion in United States v. Windsor, that DOMA was motivated by a bare desire to harm same-sex couples. Never mind that the 342 members of the House of Representatives and the 85 senators who voted for DOMA included lots of strong supporters of gay rights and that President Clinton signed it into law. As Chief Justice Roberts puts it in his dissent, by “tar[ring] the political branches with the brush of bigotry,” Kennedy gives short shrift to the “[i]nterests in uniformity and stability [that] amply justified” DOMA.

2015—“Just who do we think we are?” That is Chief Justice Roberts’s plaintive query in dissent in Obergefell v. Hodges, as five of his colleagues—Justice Kennedy, joined by the Court’s four liberals—impose on the American people a radical redefinition of marriage that, as Roberts observes, “has no basis in the Constitution or this Court’s precedent.”

It’s farfetched to believe that Justices Ginsburg, Breyer, Sotomayor and Kagan actually agree with Kennedy’s rambling reasoning (which will earn substantial criticism from the Left), but they demonstrate once again that they will happily sign their names to anything that delivers the bottom-line result they want. Embarrassed for his colleagues, Justice Scalia states that he “would hide his head in a bag” before he ever joined an opinion with such “silly extravagances” and “profoundly incoherent” “showy profundities.”

This Day in Liberal Judicial Activism—June 25

by Ed Whelan

1990—In Hodgson v. Minnesota, the Court addresses the constitutionality of a Minnesota statute governing notice to parents when their daughters seek to undergo abortion, and the resulting mess yields this summary by the Court of the justices’ votes:

STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O’CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O’CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O’CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.

Justice Scalia’s one-paragraph opinion (citations omitted) succinctly captures the situation:

As I understand the various opinions today: One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional. One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions, and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.

2008— By a vote of 5 to 4, the Supreme Court in Kennedy v. Louisiana invents a rule that the Eighth Amendment prohibits the death penalty for the crime of raping a child if the rape does not cause the child’s death. Justices Stevens, Souter, Ginsburg, and Breyer join Justice Kennedy’s majority opinion. The majority’s rule applies “no matter,” as Justice Alito puts it in his dissent, “how young the child, no matter how many times the child is raped, no matter how many children the perpetrator rapes, no matter how sadistic the crime, no matter how much physical or psychological trauma is inflicted, and no matter how heinous the perpetrator’s prior criminal record may be.” (The particular case before the Court involved an eight-year-old victim who suffered a gruesome internal laceration.)

While running for president, Barack Obama purports to oppose the ruling even as he commits to appoint the sort of justices who will disguise their own left-wing policy preferences as constitutional law.

This Day in Liberal Judicial Activism—June 24

by Ed Whelan

1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court!

This Day in Liberal Judicial Activism—June 23

by Ed Whelan

2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn.

It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.

Fact-Checking the Fact Checker

by Ed Whelan

In today’s “Fact Checker” column in the Washington Post, Michelle Ye Hee Lee tries to take issue with this passage from Justice Alito’s recent concurring opinion in Packingham v. North Carolina:

Repeat sex offenders pose an especially grave risk to children. “When convicted sex offenders reenter society, they are much more likely than any other type of offender to be rearrested for a new rape or sexual assault.” McKune, supra, at 33 (plurality opinion); see United States v. Kebodeaux, 570 U. S. ___, ___–___ (2013) (slip op., at 8–9).

Alito’s second sentence quotes from Justice Kennedy’s 2002 opinion in McKune v. Lile. As Lee notes, Kennedy’s McKune opinion in turn cites a 1997 Bureau of Justice Statistics report that states:

Released rapists were 10.5 times more likely than nonrapists to have a subsequent arrest for rape. Prisoners who had served time for other sexual assaults were 7.5 times more likely than those who had not served time for sexual assault to be arrested for a new sexual assault.

Alito’s second citation is to Kebodeaux, which, as Lee puts it, “cites an updated version of the 1997 [BLJ] report,” a report that “is considered one the most comprehensive studies on sex offender recidivism.” Kebodeaux (again, still quoting Lee) “cites the report’s finding that released sex offenders were four times more likely to be rearrested for a sex crime than non-sex offenders, and 5.3 percent of sex offenders were rearrested for a sex crime within three years after release.” (Emphasis added.)

You’d think that all of this would be enough to demonstrate to Lee that Alito’s passage has things right. But then we get this strange paragraph from her:

On the surface, comparing 1.3 percent to 5.3 percent makes it seem like sex offenders are four times more likely to commit a sex crime after release. But the 1.3 percent represents 3,328 of 262,420 released non-sex offenders. So out of the total of 3,845 people arrested post-release on sex crimes, 13 percent were prior sex offenders.

Lee contends that the comparison in her first sentence somehow only “seem[s]” sound “[o]n the surface. But her next two sentences—the heart of her supposed refutation of Alito—don’t in fact refute it and instead commit the very “apples-and-oranges comparison” that she wrongly accuses Alito of.*

Lee’s supposed “gotcha” is that, because sex offenders are only a small portion of the overall population of criminal convicts, prior sex offenders account for only 13% of the people “arrested post-release on sex crimes.” But Alito never said the contrary. So Lee is fact-checking, and purporting to correct him on, a proposition of her own invention.

Lee proceeds to argue that the “rate of getting arrested for the same crime is lowest among sex offenders compared to non-sex offenders, with the exception of people convicted of homicide.” (Emphasis added.) I’ll take her word for it. But, again, she’s not disputing anything that Alito actually wrote.

Lee concludes that Alito “makes it seem like recidivism among sex offenders to be [sic] a uniquely bad problem.” (Emphasis added.) But Alito’s far narrower point, as his first sentence puts it, is simply that repeat sex offenders “pose an especially grave risk to children.” How does Lee imagine that the higher recidivism rates that she presents for fraud or motor-vehicle theft undermine that point?

* I tweaked this sentence about an hour after initial posting.