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Ed Whelan

@EdWhelanEPPC

Jul 25

This Day in Liberal Judicial Activism—July 25
1973—In the midst of the Vietnam War, federal district judge Orrin Grimmell Judd issues an injunction (in Holtzman v. Schlesinger) ordering the military to refrain “from participating in any way in military activities in or over Cambodia or releasing any bombs which may fall into Cambodia.” The Second Circuit will block Judd’s injunction from taking effect, and the Supreme Court in early August will thwart Justice William O. Douglas’s effort to revive it. 1/

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. 2/

This Day in Liberal Judicial Activism—July 25
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. 3/

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Ed Whelan

@EdWhelanEPPC

Jul 24

Two big Ninth Circuit rulings today:
1. Court rules that Oregon requirement that parents seeking to adopt a kid from foster care agree to "respect, accept, and support" kid's sexual orientation and gender identity violates the First Amendment. Opinion by (excellent Trump appointee) Judge Bress, joined (to my surprise) by Clinton appointee Hawkins. Bush appointee Clifton dissents.
Congrats, @ADFLegal, on yet another victory!

Here's the opinion: cdn.ca9.uscourts.gov/datastore/opin…

2. In Rhode v. Bonta, divided CA9 panel holds that "California’s first-of-its-kind ammunition background check regime, which requires firearm owners to complete background checks before each ammunition purchase, violates the Second Amendment." Majority opinion by Judge Ikuta, joined by Bade. Bybee dissents. (GWBush appointed Ikuta and Bybee; Trump appointed Bade.)

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Ed Whelan

@EdWhelanEPPC

Jul 14

This Day in Liberal Judicial Activism—July 14
2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to **misquote** Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences **would reach wise decisions**.’”

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

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

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively **misquotes** Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.
1/

This Day in Liberal Judicial Activism—July 14
2021—In an apparent effort to evade en banc review, an Eleventh Circuit panel majority (in Adams v. School Board of St. Johns County) substitutes a new and very different opinion in place of its ruling eleven months earlier, but it continues to hold that a school board violated the Equal Protection rights of a transgender student when it barred her from using the boys’ restroom.

In her majority opinion, Judge Beverly Martin purports to apply intermediate scrutiny to a bathroom policy that “categorizes on the basis of sex.” But in what Chief Judge William Pryor in dissent calls “linguistic sleight of hand,” she uses sex as a synonym for gender identity and actually objects to the disparate impact that the bathroom policy has on the plaintiff student, who, unlike other students, can’t use a multi-stall bathroom that comports with her gender identity. Martin is really insisting that the Constitution requires that transgender students be given the unique right to use whatever bathroom they prefer.

The Eleventh Circuit will vote to rehear the case en banc and in December 2022 will rule that the Constitution and federal statutory law allow public schools to have separate bathrooms for students of each of the two sexes.
2/

This Day in Liberal Judicial Activism—July 14
2022—In dissent (in In re Nonhuman Rights Project v. Breheny), two judges on New York’s highest court reject the majority’s holding that the common-law writ of habeas corpus is a remedy available only to human beings. They would instead allow the writ to be granted on behalf of an elephant at the Bronx Zoo. For Judge Rowan D. Wilson, the critical inquiry is whether the detention of an elephant is “so antithetical to the essence of an elephant” that relief is warranted. Judge Jenny Rivera decries the “human/nonhuman binary relied upon by the majority.”
3/

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Ed Whelan

@EdWhelanEPPC

Jul 12

This Day in Liberal Judicial Activism—July 12
2009—In an interview in the New York Times Magazine, Justice Ginsburg offers this, er, interesting comment why she was “surprised” by the Court’s 1980 decision in Harris v. McRae, which ruled that the Hyde Amendment’s exclusion of nontherapeutic abortions from Medicaid reimbursement was constitutionally permissible:

Frankly I had thought that at the time Roe was decided, **there was concern about population growth and particularly growth in populations that we don’t want to have too many of.** So that Roe was going to be then set up for Medicaid funding for abortion. Which some people felt would risk coercing women into having abortions when they didn’t really want them. But when the court decided McRae, the case came out the other way. And then I realized that my perception of it had been altogether wrong.
1/

This Day in Liberal Judicial Activism—July 12
2016—Reversing the district court, a divided panel of the Tenth Circuit rules (in Planned Parenthood Association of Utah v. Herbert) that the Planned Parenthood Association of Utah is entitled to a preliminary injunction preventing Utah state agencies from implementing the governor’s directive that they stop channeling federal funds to PPAU. The “Factual background” in Judge Mary Beck Briscoe’s majority opinion reads in places like a Planned Parenthood press release. It even obscurely cites a Huffington Post article as authority for her dubious contentions. Worse, in determining that the governor acted in retaliation for PPAU’s exercise of its constitutional rights, Briscoe overrides the district court’s factual findings and draws highly speculative inferences that ignore the obvious reality that the governor was acting in response to concerns that PPAU was complicit in harvesting the body parts of aborted babies.

Three months later, Judge Neil Gorsuch, joined by three colleagues, will dissent from the Tenth Circuit’s denial of en banc review of Briscoe’s ruling.
2/

This Day in Liberal Judicial Activism—July 12
2019—Taking a remarkably crabbed view of the Department of Health and Human Services’ authority under the Affordable Care Act, a Third Circuit panel rules (in Commonwealth of Pennsylvania v. President) that HHS lacks statutory authority to promulgate its religious and moral exemptions to its mandate that employers include contraceptive coverage in their insurance plans. The panel’s view conflicts with the Supreme Court’s understanding of HHS’s regulatory authority in previous cases and with the Obama administration’s own understanding.

One year later (in Little Sisters of the Poor v. Pennsylvania), the Supreme Court will reverse the Third Circuit by a 7-2 vote.
3/

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Ed Whelan

@EdWhelanEPPC

Jul 10

New in Confirmation Tales: Why State Supreme Court Justices Would Rather Be Federal Judges
You might think that being on a state supreme court—the highest judicial authority on what a state’s constitution and laws mean—might be the next best thing to being on the U.S. Supreme Court. But that’s not at all how many state supreme court justices have viewed the matter. 1/

I recall one of the early confirmation hearings for Bill Clinton’s lower-court nominations that I handled for Senator Orrin Hatch in 1993. One of the nominees was Nebraska supreme court justice Thomas Shanahan. I was struck that Shanahan, at age 59, was willing to be nominated for a federal district judgeship in Nebraska. Why, I wondered, would he trade a seat on Nebraska’s highest court for a seat at the bottom of the federal judicial hierarchy? 2/

In the decades since Clinton became president, 44 sitting state supreme court justices have leaped to the lower federal courts—27 to federal courts of appeals, 17 to federal district courts. Over this same time span, only one federal judge has accepted an appointment to a state supreme court. Let's look at what explains this disparity. 3/

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Ed Whelan

@EdWhelanEPPC

Jul 10

This Day in Liberal Judicial Activism—July 10
1998—At a fundraiser for its political action committees, the National Organization for Women auctions off a gift provided to it by Justice Ruth Bader Ginsburg, a signed copy of her 1996 opinion in United States v. Virginia that ruled that the Virginia Military Institute’s male-only admissions policy was unconstitutional.
1/

This Day in Liberal Judicial Activism—July 10
2003—Under the Nevada constitution, the legislature cannot raise taxes except by a 2/3 vote of both legislative houses. Or so the constitution says.

But when Nevada governor Kenny Guinn can’t get the legislature to fund his education budget, he runs to the Nevada supreme court for help. By a vote of 6 to 1, the court (in Guinn v. Legislature of the State of Nevada) somehow orders the legislature to proceed “under simple majority rule” to raise taxes. Citing the “impasse that has resulted from the procedural and general constitutional requirement of passing revenue measures by a two-thirds majority,” the court orders that “this procedural requirement must give way to the substantive and specific constitutional mandate to fund public education.” (For more, see this analysis by Eugene Volokh, who describes the ruling as “one of the most appalling judicial decisions I’ve ever seen.”) Three years later, the Nevada supreme court quietly repudiates its ruling.
2/

This Day in Liberal Judicial Activism—July 10
2023—What part of “no court shall have jurisdiction” do Fourth Circuit judges Roger Gregory, James Wynn, and Stephanie Thacker not understand?

In June 2023, President Biden signs into law a bill that declares that “the timely completion and operation of the Mountain Valley Pipeline is required in the national interest” and that “ratifies and approves” all federal agency authorizations needed for completion of the natural-gas pipeline. The new law also provides that “no court shall have jurisdiction to review any action taken by” a federal agency with respect to the pipeline. It thus brings an end to years of litigation over the pipeline. But without a word of explanation, a panel of Gregory, Wynn, and Thacker enters stay orders that block completion of the pipeline.

Two weeks later, without any recorded dissent, the Supreme Court will vacate the panel’s orders.
3/

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