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/

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…

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 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/

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/

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/

Outrageous.

https://twitter.com/kyledcheney/status/1942345612906594650

The lead count in Planned Parenthood's complaint is, believe it or not, bill of attainder. What more do you need to know about how baseless this complaint is?

Supreme Court summarily reverses a Fourth Circuit ruling that allowed prisoner to pursue a Bivens claim for damages against prison officials for alleged use of excessive force in violation of Eighth Amendment. No recorded dissent. In light of Skrmetti, Supreme Court GVRs petitions challenging crazy Fourth Circuit rulings that required health care plans to cover surgeries for gender dysphoria. "Imperial judging at its least defensible," wrote dissenting judge Wilkinson of those Fourth Circuit rulings.

This Day in Liberal Judicial Activism—June 29
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.
1/4 This Day in Liberal Judicial Activism—June 29

Wonderful to see this one overruled.

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.”

In its 2022 ruling in Dobbs v. Jackson Women’s Health Organization, the Court will finally overrule Roe as well as this decision.

2/4

Justices announce opinions in reverse order of seniority, from KBJ to Chief. If I've guessed right on remaining assignments (not likely), that will mean:
1. ACB in Louisiana redistricting
2. Kavanaugh in FCC c. Consumers' Research (nondelegation doctrine)
3. Kagan in Braidwood Management (Appointments Clause)
4. Alito in Mahmoud (religious-liberty rights of parents of public-school students)
5. Thomas in Free Speech Coalition v. Paxton (Texas age-verification law for porn sites)
6. Chief in Trump v. CASA (nationwide injunctions against executive order on birthright citizenship) I now think that it's extremely unlikely that a justice will step down from the Court today or in the coming days.

#SCOTUS announcement session tomorrow at 10 ET. 10 cases remain. Look for 4 to 6 rulings tomorrow. Just a few minutes away from today's #SCOTUS rulings.

1st SCOTUS ruling today: FDA v. R. J. Reynolds Vapor Co. ACB majority, 7-2 (SS, KBJ in dissent). Retailers who would sell a new tobacco product if not for the FDA’s denial order may seek judicial review of that order under §387l(a)(1). supremecourt.gov/opinions/24pdf…

Ninth Circuit oral argument in Trump v. Newsom takes place today at 3:00 ET (noon PT). Livestreamed here. youtube.com/live/zEitAzKSI… Ninth Circuit panel in Trump v. Newsom consists of Judges Mark Bennett, Eric Miller, and Jennifer Sung. Trump appointed Bennett and Miller, Biden appointed Sung.
I see Miller as the key. Whichever way he goes will probably have the panel majority.

Outstanding Wall Street Journal house editorial: Donald Trump vs. His Own Judges.
I'll start with this nugget: Leonard Leo had nothing to do with Trump's nomination of the Court of International Trade judge who ruled against him on tariffs. Trump's own trade representative recommended him. 1/ More from WSJ: "President Trump is expert at downplaying his failures, but attacking his own success is something new.... Mr. Trump is attacking the group, and especially the man in Leonard Leo, that were vital to his first-term success on judicial nominations. Mr. Leo helped Mr. Trump pull together his list of potential Supreme Court nominees during the 2016 presidential campaign. The list was crucial in reassuring conservative voters that he could be trusted on judges."
Trump understood back then that he wouldn't have been elected w/o Leonard Leo's assistance. 2/

Maine legislator Laurel Libby and several of her constituents have filed an emergency application in Supreme Court seeking relief against outrageous action by House speaker that bars her from voting because she has spoken out against male athletes participating in girls’ sports. 1/ At the Speaker’s direction, the Clerk of the House has not counted a single vote that Libby has tried to register, and won’t do so for rest of Libby’s term. Her constituents have no say on the thousands of bills that will come before the House. The Speaker has also barred Libby from speaking on any topic. 2/

Lots of confusion in this @WSJopinion house editorial faulting Judge Xinis for seeking prompt info on Abrego Garcia. Perhaps worst is notion that retrieving deportee from prison contractor is complicated matter of "diplomacy." As @AndrewCMcCarthy has explained, Abrego Garcia is best understood as being in constructive American custody. nationalreview.com/2025/04/why-th…
wsj.com/opinion/kilmar… But maybe even worse is notion that Trump administration, having unlawfully deported Abrego Garcia a month ago, should have five days to provide elementary information to Judge Xinis.

Big 5-4 victory for Trump administration in Venezuela Alien Enemies Act case. (And not what I was expecting.) ACB and liberal justices in dissent.
supremecourt.gov/opinions/24pdf… 4-page per curiam opinion (for five justices):
1. We construe the TROs as appealable injunctions.
2. Challenges to removal under the Alien Enemies Act must be brought in habeas.
3. The detainees are confined in Texas, so venue is improper in D.C.
4. Detainees are entitled to notice and opportunity to be heard. ***"The notice must be afforded within a reasonable time and in such a manner as will allow them to actually seek habeas relief in the proper venue before such removal occurs."***

New in Confirmation Tales: "Gang of 14 Agreement Preserves Senate Filibuster of Judicial Nominations"
“The nuclear option is gone for our lifetime,” crowed a “clearly euphoric” Democratic leader Harry Reid.
Eight years later, Reid himself would deploy the nuclear option, abolishing the filibuster of lower-court nominees and executive-branch nominees. 1/ In May 2005. the Senate prepared for a dramatic vote to abolish the filibuster for judicial nominations.
The stakes were high. If Frist succeeded, the Senate, with its 55 Republicans, could promptly confirm the dozen or so appellate nominees who had been held in limbo. At least as importantly, Bush would have an easy path to getting any Supreme Court nominees confirmed in the 109th Congress (2005-2006). And any justices or appellate judges who had been hesitating to step down out of fear that their seats would remain vacant would no longer have that concern.
Conversely, the consequences for Bush and Senate Republicans would be severe if Frist lost the vote on filibuster abolition. Democrats would be emboldened to expand their filibuster campaign more broadly, and the filibuster threat would weigh heavily over a Supreme Court vacancy. Conservative activists would react with rage against Republican senators who sank the cause. 2/

By a vote of 5 to 4, the Supreme Court has denied the Trump administration's request that it vacate a district-court order requiring disbursements of foreign development assistance funds. Order calls for district court to clarify what it is ordering government to do. 1/ Justice Alito, joined by Thomas, Gorsuch, and Kavanaugh, vigorously dissents in 7-page opinion, says he is "stunned" that majority allows a "single district-court judge who likely lacks jurisdiction [to] have the unchecked power to compel the Government of the United States to pay out (and probably lose forever) 2 billion taxpayer dollars." 2/

Awesome letter of resignation by Hagan Scotten, lead prosecutor in the Eric Adams case. Scotten, BTW, is recipient of two Bronze Stars and former law clerk to Chief Justice Roberts and then-D.C. Circuit judge Kavanaugh. 1/ Adams prosecutor Scotten tells Emil Bove that Bove's first reason for motion to dismiss "is so weak as to be transparently pretextual" and second reason is "worse": "No system of ordered liberty can allow the Government to use the carrot of dismissing charges, or the stick of threatening to bring them again, to induce an elected official to support its policy objectives."
And then this: "If no lawyer within earshot of the President is willing to give him that advice, then I expect you will eventually find someone who is enough of a fool, or enough of a coward, to file your motion. But it was never going to be me." 2/

On the Rule of Law and Presidential Defiance of Judicial Orders
Some thoughts of mine on the topic. Link to blog post at end of thread.
1. It's not defiant, or even remarkable, for the federal government to decline to comply with an order while it seeks emergency relief from that order. 2. I do not hold an absolutist position against a president’s sustained refusal to comply with a court order. My position is instead that rule-of-law considerations in our constitutional system generally call for a very strong presumption in favor of executive-branch compliance with federal court orders. Truly extraordinary circumstances might well overcome that presumption.