This Day in Liberal Judicial Activism—December 12

by Ed Whelan

2013—Some things are most fittingly done in the dark of night. Shortly after midnight, the Senate, with 51 yea votes, confirms President Obama’s nomination of hard-left law professor Cornelia Pillard to the D.C. Circuit.

The confirmation of Pillard follows in the wake of Senate Democrats’ abolition of the judicial filibuster. Even three Senate Democrats vote against the Pillard nomination, and not a single Republican votes for it.

During her confirmation process, Pillard was described by some lawyers who know her well as “Reinhardt in a skirt but less moderate” (that’s a reference to Ninth Circuit arch-activist Stephen Reinhardt) and as someone who threatens to be “the most left-wing judge in the history of the Republic.”

Scalia Speaks Events in Alabama, Pensacola, and Dallas

by Ed Whelan

I have a busy week on the road discussing Scalia Speaks.

As it happens, I’ll be in Alabama tomorrow (Tuesday, December 12)—the day of the special Senate election between Roy Moore and Doug Jones—for a lunchtime event with the Birmingham lawyers chapter of the Federalist Society. (Time allowing, I hope to visit the civil-rights history museum in Birmingham.)

On Wednesday, I have a lunchtime event with the Federalist Society’s Montgomery lawyers chapter and an evening event in Pensacola with its Emerald Coast lawyers chapter.

Then on to Dallas on Thursday for an evening event co-sponsored by the Dallas and Fort Worth lawyers chapters of the Federalist Society.

This Day in Liberal Judicial Activism—December 11

by Ed Whelan

2002—In its fourth ruling in the eleven-year-long saga of litigation (DeRolph v. State) over Ohio’s school-funding system, the Ohio supreme court observes that some six years earlier—when it first ruled that Ohio’s existing system of financing its public-school system somehow violates the state constitution’s declaration that the General Assembly “make such provisions, by taxation or otherwise, as will secure a thorough and efficient system of common schools throughout the state”—it had “provided no specific guidance as to how to enact a constitutional school-funding scheme.” The court then proceeds, once again, to provide no specific guidance as to how to enact a constitutional school-funding scheme.

Some six months later, the court will finally end the litigation. Displaying the limited power of judicial diktats, the General Assembly has never adopted a new funding system that aims to comply with the court’s rulings.

2009—Federal district judge Nina Gershon rules that a provision of federal appropriations law that restricts funding of the scandal-plagued ACORN organization is an unconstitutional bill of attainder. In holding that the deprivation of the opportunity to apply for discretionary federal funds “falls within the historical meaning of legislative punishment,” Gershon finds “particularly instructive” the Supreme Court’s 1946 ruling in United States v. Lovett. But Lovett involved a permanent proscription on further employment in the federal government of three federal employees, not a temporary bar on applications for federal funding by an organization. Somehow Gershon doesn’t see fit to explore carefully whether these obvious differences matter.

In August 2010, a unanimous Second Circuit panel will reverse Gershon’s ruling.

This Day in Liberal Judicial Activism—December 9

by Ed Whelan

1993—Faithfully applying governing precedent, the Florida supreme court rules (in Sarantopoulos v. State) that a person who had built a six-foot-high fence around his yard did not have a reasonable expectation of privacy in his yard (where he was growing marijuana plants) since he should reasonably have foreseen that the yard could be viewed over the fence or from aircraft. In dissent, then-chief justice Rosemary Barkett confuses the threshold issue whether a reasonable expectation of privacy existed with the logically subsequent question whether a police search based on an anonymous tip was reasonable.

Judicial Nominations Update

by Carrie Severino

Yesterday the Senate Judiciary Committee voted to advance three U.S. Court of Appeals nominees to the Senate floor for confirmation votes: L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit; Don Willett, nominee to the U.S. Court of Appeals for the Fifth Circuit; and James Ho, nominee to the U.S. Court of Appeals for the Fifth Circuit. This morning, Senate Majority Leader Mitch McConnell filed motions to invoke cloture on the Grasz, Willett and Ho nominations, setting up confirmation votes for them next week. Currently there are 28 federal judicial nominees awaiting floor votes, including these three court of appeals nominees.

Senate Judiciary Committee Chairman Chuck Grassley also announced that Lisa Branch, nominee to the U.S. Court of Appeals for the Eleventh Circuit, is scheduled for a Judiciary Committee hearing next Wednesday, December 13th. This will be the last nominations hearing scheduled for 2017. By the end of the year, 13 court of appeals nominees and 34 district court nominees will have received hearings this year.

Here is this week’s full update on federal judicial nominations.

Number of total current and known future vacancies: 162

Courts of Appeals: 23

District/Specialty Courts*: 139

Number of pending nominees for current and known future vacancies: 46

Courts of Appeals: 9

District/Specialty Courts: 37

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes: 28

Courts of Appeals: 3

District/Specialty Courts: 25

Nominees Confirmed by the Senate: 16

Supreme Court: 1

Courts of Appeals: 9

District/Specialty Courts: 6

This Day in Liberal Judicial Activism—December 8

by Ed Whelan

1998—Something called “table dancing” earns Ninth Circuit judge Stephen Reinhardt’s special solicitude.

In dissent in Colacurcio v. City of Kent, Reinhardt ponders “whether table dancing constitutes a separate form of expressive communication from other types of nude dancing—that is, whether table dancers communicate a message different in content than that communicated by nude stage dancers, and other nude dancers who perform at a distance of more than ten feet from their customers.”

Reinhardt determines that a city ordinance that requires nude dancers to perform at least ten feet from patrons effectively outlaws table dancing. The ordinance, in his view, is not content-neutral as a matter of law because those challenging the ordinance offered evidence that “stage dancers and table dancers communicate different expressive content in their respective messages.” Among other things, this evidence indicated that the “message of the table dancer is personal interest in and understanding of the customer,” whereas the message sent by stage dancing is “coldness and impersonality.” Further, Reinhardt says, evidence indicated that the city “banned proximity precisely because it wants to constrain dancers from doing the very things that … are essential to the message—chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.”

Washington Post Runs Column by Obscure “Conservative” Who Says Justice Thomas Should Resign

by Carrie Severino

Jay Kaganoff, a freelance writer and self-described conservative, wrote in yesterday’s Washington Post that in this “new environment” of recognition of the severity of sexual harassment, Justice Clarence Thomas should resign. Not because of any new allegation involving the justice, but because he believes the allegations Anita Hill made against him during the Senate Judiciary Committee’s notorious nomination hearings of 26 years ago. The allegations themselves went back to the period between 1981 and 1983 when Hill worked under Thomas, first at the Department of Education and later at the EEOC.

I don’t know who Jay Kaganoff is—some have suggested he doesn’t actually exist—but I do know Justice Thomas. I worked with him closely for a year as his clerk, and Hill’s testimony is completely at odds with the man I know. But her story is implausible for a host of other reasons, from internal inconsistencies, to contradiction by contemporaries, to outright perjury. Since Kaganoff has brought up this slander again, I wanted to take the opportunity to respond.

By his own account, Kaganoff’s epiphany was not recently deciding he believed Hill—all along, he writes, he did not doubt her—but believing that what she alleged mattered in the wake of Harvey Weinstein, Louis C.K., Roy Moore, and Kevin Spacey. That these men offer an inapt comparison should be obvious—not just by the severity of the accusations against them, but by the sheer volume of credible evidence they faced.

Kaganoff might appreciate this if his review of the evidence were not so superficial. He describes Hill’s testimony with a one-sentence reference to a leaked affidavit she initially had prepared for the Senate Judiciary Committee in September 1991 alleging that Thomas had asked her out on dates and made sexually charged comments. In the next sentence, he summarily notes with no elaboration that after she “gave her testimony, she was viciously smeared,” as if her committee testimony flowed seamlessly from her earlier statements.

In fact, she had preceded her committee testimony with the affidavit and a September 23 interview with the FBI that differed so much from her later testimony, both interviewing FBI agents produced affidavits detailing what one of them called “comments that were in contradiction with” her earlier statement. In short, they attested that none of Hill’s specific, headline-grabbing charges about Thomas during the hearing—allegations of lurid references to himself, to a pornographic movie character, and to an indecipherable description of a Coke can—had been made during their interview despite their request for any such information. To the questioning senators who were wondering why they were hearing these allegations for the first time, Hill testified that an interviewing agent advised her that she did not need to discuss subjects that were too embarrassing. Both FBI agents also repudiated this part of Hill’s testimony, stating in their affidavits that the interviewer had asked her to provide specifics of all incidents.

Even more telling, every witness who knew both Thomas and Hill stated they believed Thomas. A dozen women who worked with Thomas testified to the Senate Judiciary Committee (one by affidavit) with strong statements defending his character, such as describing the allegations against him as “unbelievable” or “totally preposterous” or deeming him “absolutely incapable of the abuses described by Prof. Hill.”

Not one coworker of Hill supported her allegations. Indeed, in weighing the evidence, Thomas is the inverse of Harvey Weinstein et al.: his defenders are about as numerous as the real predators’ accusers.

Incredibly, Kaganoff is either unaware of or chooses to ignore the entire throng of witnesses for Thomas and makes mention of supposed witnesses only for Hill: “[S]he had witnesses whom the chairman of the Judiciary Committee, Sen. Joe Biden of Delaware, did not call up.”

That is an uncharitable summary of Biden’s interest in hearing from witnesses given that he called all four witnesses Hill claimed to have spoken to about her allegations during the relevant time period. Her chief corroborating witness was law school classmate Susan Hoerchner, who had earlier spoken to committee staff both by telephone and by a transcribed interview. She had offered vague, inconsistent recollections of a single conversation she repeatedly testified occurred months before the time Hill alleged Thomas’ misconduct would have begun—and in fact before she even began working for him. She changed that testimony to claim uncertainty as to the time frame after Hill’s attorney, Janet Napolitano, called for a break to speak with her. Although Hill had initially claimed Hoerchner as her only corroborating witness in her FBI interview, she later claimed she told three other witnesses, none of whom could recall Hill mentioning any sexually graphic details, and two of whom could not recall her naming the supervisor she mentioned to them.

The search for adverse testimony from others who worked under Thomas yielded statements to the committee from two other women, Angela Wright and Sukari Hardnett, but both stated that they were not accusing Thomas of harassment. Wright, the only woman to make allegations of specific comments from Thomas comparable to Hill’s allegations, has been cast in retrospect by many Hill defenders as the “second woman” denied a place at the hearing. (That was also how she was depicted in HBO’s 2016 movie Confirmation, a grossly misleading hatchet job that has been thoroughly discredited here, here, here, here, and here, among other places.)

The truth is that Biden, who was happy to air during prime time the spectacle of Hill’s testimony and would vote against Thomas, realized Wright had little credibility. Thomas had fired her for using a homosexual slur against a coworker; she had said she wanted to “get him back;” and she had made baseless accusations of racism to tank the nomination of a former supervisor who had authorized her termination from another job. Indeed, Senator Arlen Specter, a member of the Senate Judiciary Committee who took a leading role in questioning the Thomas hearing witnesses, wrote in his memoir Passion for Truth that some of his Republican colleagues wanted Wright to testify because “[h]er credibility was so poor that it would tar Hill and help Thomas.” Biden instead had her transcribed interview entered into the record unrebutted.

Kaganoff does not acknowledge a single one of the above factors, as one would expect him to in any careful weighing of evidence. He attempts in one sentence to discredit Thomas: “[I]f he was dishonest about the [pornographic] videos, it’s conceivable that he lied about the rest, too.” His premise is a reference to a post-hearing investigation by journalists of Thomas’ personal consumption of pornography, a subject about which he could not have lied because he was never asked about it. (By not broaching the subject, the Committee salvaged a morsel of its dignity.) Kaganoff’s conclusion makes no sense.

But he is correct in his broader premise that if a witness lies under oath on one matter, it can undermine the credibility of the witness’ other testimony. If only Kaganoff attempted an analysis of Hill’s testimony with this in mind.

During the hearing, Specter asked Hill about a USA Today article reporting that Senate staffers told her that producing an affidavit alleging sexual harassment would “quietly and behind the scenes” compel Thomas to withdraw his name. Although the conversation would have happened within approximately one month of her testimony (in contrast to her allegations of a decade earlier), she repeatedly denied recalling any mention of Thomas’ withdrawal—or even that such a “comment would have stuck in my mind.” As Specter recounted, Chairman Biden reacted to this exchange by calling an early lunch recess, at which point he told his chief of staff, “Go down and tell her lawyers that if her recollection is not refreshed by the time she gets back, I will be compelled to pursue the same line of questioning the senator [Specter] did. Because it seems to me, she did what he said.”

After Specter resumed his questioning following the recess, Hill, apparently alarmed at the prospect of losing the committee’s Democratic chairman, not to mention being contradicted by other testimony, backtracked with an awkward admission that the discussions at issue included “some indication” that Thomas “might not wish to continue the process” as a result of her allegations. As late as 1998, Biden told Specter regarding her evasions, “It was clear to me from the way she was answering the questions, she was lying.” To be sure, Biden would distance himself from the spectacle over which he chaired and publicly claim to believe Hill; to do any less would be to defy the base of the Democratic Party, which quickly turned her into a totem of workplace harassment.

Other credibility problems stemmed from the fact that Hill followed Thomas from the Education Department to EEOC when he became chairman there. When asked why, she falsely testified she was in jeopardy of losing her job when in fact she was a protected employee and was asked by the incoming director to stay. Her attempt to skirt that contradiction was to testify she did not know of that protected status or who would replace Thomas, which put her word against that of former coworkers who contradicted her on both points. Hill also initiated contact with Thomas for years after she left EEOC, first denying it when asked but later backtracking when confronted with telephone logs documenting eleven such calls over eight years. Specter called Hill’s testimony “flat-out perjury.”

Yet Kaganoff asserts that “Hill . . . had no reason to lie and had supporting evidence.” On the latter point, he overlooks not only her difficulties with corroborating witnesses, but also her testimony that although she took notes documenting every assignment at work, she never maintained any written record of what she alleged about Thomas.

Without more information, it might be as speculative to close the door on possible personal motives as it would be to consider them. Political consequences, however, swirl around every nominee to the Supreme Court and other positions of national significance, leaving truth in constant peril of being sacrificed to partisanship.

In 1998, Hill went to bat for President Clinton on Meet the Press. When host Tim Russert asked about White House volunteer Kathleen Willey’s allegation the president had groped her, Hill agreed with Gloria Steinam’s argument that the allegations did not amount to sexual harassment: Willey was not “claiming that this behavior was severe and ongoing or pervasive enough that it became a condition of her employment” or that “she suffered any disadvantage because of this incident.” So “we aren’t talking about sexual harassment . . . even if we assume that what she said in her interview and the depositions are true.” It was a surreal moment, because Hill had just laid out the very argument that would preclude characterizing her allegations as sexual harassment.

Russert pressed on: “So we dismiss the president’s alleged behavior?” One could imagine Hill responding with outrage toward someone who faced allegations of outright assault—well beyond anything she alleged against Thomas—but no. Her response instead meandered through the sexual misconduct of past presidents and added, “I think what Ms. Steinem also says is that we have to look at the totality of the presidency and how has he been on women’s issues generally? Is he our best bet, notwithstanding some behavior that we might dislike? I don’t think that most women have come to the point where we’ve said, ‘Well, this is so bad that even if he is better on the bigger issues, we can’t have him as president.’”

Russert immediately followed, “Is that a double standard for a liberal as opposed to a conservative?” Hill responded that “it is a reality that we have to deal with. We live in a political world, and the reality is that . . . there are larger issues, larger issues other than just individual behavior.” In other words, yes. That may explain Hill’s glibness about allegations against Clinton. She expressed little of the empathy or credence for the allegations of Clinton’s multiple accusers she expected for herself.

I respect that Kaganoff identifies as a conservative and makes a conscious effort to avoid the trap of the political or ideological double standard. But his sources appear to be a product of that vice, with unfortunate consequences for those who rely on them in good faith.

Kaganoff recognizes that Hill’s evidence may not be “enough to stand up in the court of law”—and he is correct that the standard of proof in assessing a Supreme Court nominee need not be as high as in a criminal prosecution—but what an understatement! It would be an interesting exercise to see which count is higher: the number of credible witnesses for Thomas or the number of holes in Hill’s testimony. Either way, by the modest evidentiary standard of preponderance of the evidence, the case against Thomas did not come close to being made.

Flipping the Liberal Script on Religious Liberty

by Luke Goodrich

Once upon a time, religious freedom was mostly about protecting religious minorities such as Jews, Native Americans, and Muslims. Nowadays, religious freedom is mostly about Christians who supposedly want to impose their views about abortion, contraception, and gay rights. Cases such as Hobby Lobby have opened the door to a host of novel claims, and the courts are now flooded with cases involving Christians who, we are told, want a license to “discriminate.” Exhibit A is this week’s Supreme Court oral arguments in the Masterpiece Cakeshop case.

This is a very common narrative from the left about religious freedom. But is it accurate?

Not by a long shot. A groundbreaking new study that I co-authored — the first of its kind since Hobby Lobby — upends this narrative in multiple ways. The study finds that religious-freedom cases are scarce — accounting for only 0.4 percent to 0.6 percent of the federal docket. Successful cases are even scarcer — with only a handful of successful cases in a large data set over a five-year period.

Even more importantly, religious-freedom cases disproportionately involve small religious minorities, like Hindus, Native Americans, and Muslims. These groups are involved in five to 17 times as many religious-freedom cases as their small share of the population would suggest. Christians, by contrast, are significantly underrepresented in religious-freedom cases — appearing in only one-fourth as many cases as their population would suggest.

The bottom line is that the common liberal narrative about religious freedom is false. Religious freedom remains disproportionately important for small religious minorities, not Christians.

But the mere fact that we are having this debate reveals a deeper problem: The Left’s commitment to religious freedom (or lack thereof) often depends on what religious group is making the claim. Claims by small religious minorities, like Muslims, Jews, or Native Americans, are met with sympathy. Claims by Christians are met with antipathy — especially when they clash with liberal commitments to abortion or gay rights.

But supporting religious freedom only when it protects favored groups is no support for religious freedom at all. At its core, religious freedom protects everyone’s ability to live according to religious truth as they understand it — even when most of society thinks they’re wrong. As Seamus Hasson, founder of Becket Fund for Religious Liberty law firm, put it, religious freedom is The Right to Be Wrong. It protects not only Jews who can’t work on the Sabbath, but also Christians who can’t endorse a same-sex wedding.

Thankfully, the courts have repeatedly vindicated this principle, even when left-wing groups such as the ACLU miss it. For example, Becket’s Christian clients in Hobby Lobby, the Little Sisters of the Poor, and Hosanna-Tabor won major Supreme Court victories over the ACLU’s opposition. And Becket’s Muslim, Native American, and Jewish clients won major victories with the ACLU’s support. Here’s hoping the Christian plaintiff in Masterpiece Cakeshop wins a major victory, too — and that the ACLU and others on the left start supporting religious freedom for all.

— Luke Goodrich is Deputy General Counsel at Becket and co-author of the new study Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases.

Scalia Speaks Events in Philadelphia and Princeton

by Ed Whelan

On Wednesday evening (Dec. 6), the Philadelphia lawyers chapter of the Federalist Society will host my discussion of Scalia Speaks. Register here.

Late Thursday afternoon (Dec. 7), I’ll be at Princeton University for a roundtable discussion of Scalia Speaks sponsored by Princeton’s James Madison Program. My co-editor Chris Scalia and NYU law professor (and former Scalia clerk) Rachel Barkow will take part in the discussion, to be moderated by Matt Franck, author of this wonderful review of the book.

Books will be available for sale and signing at both events. I’m very much looking forward to them.

Next week: Birmingham, Montgomery, Pensacola, and Dallas.

This Day in Liberal Judicial Activism—December 5

by Ed Whelan

1984—No legal text can ever be clear enough to avoid being subverted by a liberal judicial activist. Consider future-Eleventh Circuit judge Rosemary Barkett’s ruling for a Florida appellate court in State v. Bivona.

Florida’s speedy-trial rule generally provided that every person charged with a felony shall be brought to trial within 180 days of the charge or be forever protected from prosecution on that charge. Under an express exception ((b)(1)) to the rule, a “person who is … incarcerated in a jail or correctional institution outside the jurisdiction of this State … is not entitled to the benefit of this Rule until that person returns or is returned to the jurisdiction of the court within which the Florida charge is pending.” But Barkett rules that the 180-day period for a person who had been charged with bank robbery in Florida ran while he was incarcerated in California, as she reads into the (b)(1) exception the additional requirement that the person have been incarcerated on charges pending in the other state.

Some two years later, the Florida Supreme Court unanimously reverses Barkett’s ruling. “The language of (b)(1),” it concludes, “is without ambiguity…. Clearer language than this is difficult to envisage. Yet the lower court [i.e., Barkett] puts a gloss on it, unwarranted by anything that appears in [the speedy-trial rule].”

2002—Liberal judicial activists, usually so dismissive of originalist jurisprudence, will resort to originalist, or at least originalist-sounding, arguments when it suits them.

In a lengthy historical exegesis in Silveira v. Lockyer, Ninth Circuit judge Stephen Reinhardt concludes that the Second Amendment does not confer any individual right to own or possess any firearms. Among other things, Reinhardt determines that the term “bear arms” “generally referred to the carrying of arms in military service—not the private use of arms for personal purposes,” and that the term “keep” (in “keep and bear arms”) was not broader in scope than “bear.”

Dissenting months later from the denial of rehearing en banc, Judge Alex Kozinski observes:

“Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted.… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases—or even the white spaces between lines of constitutional text.… But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there. It is wrong to use some constitutional provisions as spring-boards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us.”

In another opinion dissenting from the denial of rehearing en banc, Judge Andrew Kleinfeld (joined by Kozinski and two other judges) criticizes Reinhardt for “swim[ming] against a rising tide of legal scholarship to the contrary, relying heavily on a single law review article”—by a former Reinhardt clerk, as it happens—“that claims ‘keep and bear’ means the same thing as ‘bear,’ which itself means only to carry arms as part of a military unit.” “The military meaning,” Kleinfeld acknowledges, “is certainly among the meanings of ‘bear,’ as is ‘large, heavily built, furry, four-legged mammal,’ and ‘investor pessimistic about the stock market.’ But the primary meaning of ‘bear’ is ‘to carry,’ as when we arrive at our host’s home ‘bearing gifts’ and arrive at the airport ‘bearing burdens.’” And “keep,” Kleinfeld points out, has the primary meaning of “to retain possession of”—and poses an interpretive challenge only for “those who have chosen in advance to evade the ordinary meaning of the word.” Kleinfeld also explains that the phrase “the right of the people”—which Reinhardt “simply skips over”—refers to an individual right in the usage of the Bill of Rights.

In June 2008, in District of Columbia v. Heller, all nine justices reject Reinhardt’s position (even as they split 5-4 on the scope of the individual Second Amendment right).

2008—Montana trial judge Dorothy McCarter rules (in Baxter v. Montana) that the provisions of the Montana constitution that state that the “dignity of the human being is inviolable” and that set forth a “right of individual privacy” confer a constitutional right to physician-assisted suicide. Never mind the longtime prohibition in Montana law, and Anglo-American law more generally, on assisted suicide.

One year later, the Montana supreme court will decline to ratify McCarter’s constitutional frolic, as a narrow majority instead misconstrues Montana statutory law to protect a physician from prosecution for aiding a person to commit suicide.

This Day in Liberal Judicial Activism—December 3

by Ed Whelan

2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a unanimous per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

This Day in Liberal Judicial Activism—December 2

by Ed Whelan

2009—In an opinion concerning the Court’s denial of certiorari in Johnson v. Bredesen, Justice Stevens, joined by Justice Breyer, opines that Tennessee violated a death-row inmate’s Eighth Amendment rights when it delayed carrying out his execution “for nearly 29 years.” Justice Thomas responds:

In 1981, the petitioner in this case was convicted and sentenced to death for three brutal murders he committed in the course of a robbery. He spent the next 29 years challenging his conviction and sentence in state and federal judicial proceedings and in a petition for executive clemency. His challenges were unsuccessful. He now contends that the very proceedings he used to contest his sentence should prohibit the State from carrying it out, because executing him after the “lengthy and inhumane delay” occasioned by his appeals would violate the Eighth Amendment’s prohibition on “cruel and unusual” punishment.

It has been 14 years since Justice Stevens proposed this “novel” Eighth Amendment argument. I was unaware of any constitutional support for the argument then. And I am unaware of any support for it now. There is simply no authority “in the American constitutional tradition or in this Court’s precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed.

‘Find the Perfect Gift’

by Ed Whelan

No, the title of this post isn’t promoting the New York Times bestseller Scalia Speaks. Rather, it’s the text of an advertisement that the Archdiocese of Washington proposed to run during Advent on the buses and subway cars of the Washington Metropolitan Area Transportation Authority. But WMATA rejected the ad (full image here) on the ground that it “depicts a religious scene and thus seeks to promote religion.”

The Archdiocese has sued WMATA for violating its First Amendment rights. I’m pleased to report that the Ethics and Public Policy Center (the think tank I head) has filed an amicus brief in support of the Archdiocese. An excerpt (citations omitted) from the brief:

[W]here, as here, the government seeks to suppress as noxious otherwise permissible speech because the speaker voices a religious perspective, the Supreme Court has repeatedly held that such religious viewpoint discrimination cannot be justified by any government interest and is virtually per se unlawful. WMATA’s refusal to permit the Archdiocese to post its otherwise unobjectionable advertisement was based entirely on the religious viewpoint behind the Archdiocese’s campaign. WMATA’s application of its advertising guidelines to the Archdiocese’s “Find the Perfect Gift” advertisement constitutes, among other things, invidious viewpoint discrimination in violation of the Free Speech Clause and an unlawful imposition on the Archdiocese’s religious liberties under the First Amendment’s Free Exercise Clause. WMATA’s decision cannot stand.

Many thanks to Shannen Coffin of Steptoe & Johnson for his generous pro bono representation of EPPC in this matter.

Judicial Nominations Update

by Carrie Severino

It was another eventful week on the judicial nominations front. The Senate confirmed two judicial nominees (Greg Katsas to the U.S. Court of Appeals for the D.C. Circuit and Dabney Friedrich to the U.S. District Court for the District of Columbia), bringing the total number of federal judicial nominees confirmed this year to sixteen. Nevertheless, with two additional vacancies announced this week, the number of current and known future vacancies remains steady at 161.

On Wednesday, the Senate Judiciary Committee held a hearing for David Stras, nominee to the U.S. Court of Appeals for the Eight Circuit, and Kyle Duncan, nominee to the U.S. Court of Appeals for the Fifth Circuit. After initially refusing to return a positive blue slip for Mr. Duncan, last night Senator John Kennedy of Louisiana announced that he plans “to vote in favor of [Mr. Duncan] and look[s] forward to welcoming him home to Louisiana.” I applaud Senator Kennedy’s decision to support this outstanding nominee.

Finally, at the Senate Judiciary Committee’s mark up yesterday, Senator Dianne Feinstein requested that L. Steven Grasz, nominee to the U.S. Court of Appeals for the Eighth Circuit, be held over one additional week so that she could consider additional information about Mr. Grasz’s ABA rating. According to Senate Judiciary Committee Chairman Chuck Grassley, Mr. Grasz has submitted follow-up materials that “appear to indicate that the ABA relied on faulty information in their evaluation of him.”

Here is this week’s full update on federal judicial nominations.

Number of total current and known future vacancies: 161

Courts of Appeals: 23

District/Specialty Courts*: 138

Number of pending nominees for current and known future vacancies: 46

Courts of Appeals: 9

District/Specialty Courts: 37

*Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes: 18

Courts of Appeals: 0

District/Specialty Courts: 18

Nominees Confirmed by the Senate: 16

Supreme Court: 1

Courts of Appeals: 9

District/Specialty Courts: 6

Religious Exemptions Are No Anomaly

by Stephanie Barclay

Religious exemptions create an “anomaly” within our legal system — an unfair special privilege to ignore the laws everyone else must obey. Worse still, protecting the rights of diverse religious claimants in our nation will “court anarchy” by turning our law into “swiss cheese” and inviting a tidal wave of litigation.

So goes one of the most common refrains raised by critics of religious exemptions. Some prominent Free Exercise cases have traded on these assumptions. And many of the recent criticisms of religious exemptions rely on these assumptions, including in anticipation of the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission case the Supreme Court will hear next week. But are these arguments really accurate?

In a forthcoming Boston College Law Review article with Professor Mark Rienzi, we point out that courts frequently provide exemptions for other First Amendment claims against generally applicable laws, particularly when it comes to expressive conduct.

Notably, when the Supreme Court talks about exemptions in other contexts, it uses terms like “restrained,” “surgical,” “modest,” and “preferred method of constitutional adjudication.” It’s hard to square that with the idea that exemptions somehow morph into a “get-out-of-the-law-free card” simply because they arise in the context of religious beliefs. And overall, our new study reveals that requests based on religious objections remain much less likely to lead to invalidation of government action than speech objections do. Religious cases are less than a third of all such cases. And even after Hobby Lobby, religious cases as a percentage of the total reported case load appear to have actually decreased.

But what about exemptions from anti-discrimination laws? This issue has prompted some of the most virulent backlash against religious exemptions to generally applicable laws, and it is the issue at the heart of the upcoming Masterpiece case. Here again, the Supreme Court’s cases about expression point the way.

One of the frequent objections raised is that such exemptions are particularly concerning because of the dignitary harm they would inflict on third parties. However, in the free-speech context, the Supreme Court has consistently held that a government’s desire to protect people from emotional harm — even far more acute emotional harm than is present in many of the wedding-vendor cases — does not constitute a compelling government interest.

Others such as Professor Joseph Singer have argued that the analysis changes, and anti-discrimination norms must essentially always prevail, when dealing with commercial places open to the public. Is there really something uniquely unassailable about the government’s interest when a service is being offered to the public? To answer that question, one must also answer the following: Could the government require a baker who supports Black Lives Matter to bake a Confederate flag-themed cake for a rally being held by the Aryan Nations church? Or could the government force LGBT business owners to bake a cake for a Westboro Baptist Church protest? Does the fact that these bakers offer similar cakes to the public really change the analysis?

It turns out these are not simply hypothetical thought experiments. After the recent neo-Nazi demonstrations in Charlottesville, a swarm of businesses (including Google, Airbnb, Uber, and PayPal) reacted by refusing to continue providing services to white-supremacist organizations. And in Masterpiece, the Colorado Commission allowed three bakers (including LGBT business owners) to refuse a religious customer’s request to create custom cakes with religious messages criticizing same-sex marriage. If one thinks that any of these businesses are justified in denying their services to groups or events to which they object, then one must acknowledge that the government does not have an unassailable interest in coercing any product or service that is already offered to the public.

To be sure, there are some cases dealing with services or products offered in the public sphere where the government would prevail over First Amendment objections. But in the public accommodation context, the foundational government interest capable of trumping First Amendment objections is not avoiding dignitary harms or conscripting public vendors into government service. It is, as the Court has recognized, the government’s interest in “remov[ing] the barriers to economic advancement and political and social integration that have historically plagued certain disadvantaged groups.” And the unanimous Supreme Court in Hurley has already pointed to factors that should be assessed when the Court must balance First Amendment rights against the government’s interest. Specifically, (1) does the public accommodation exclude a class of individuals “as such” (which would create a more significant barrier to economic or political advancement), or does the public accommodation have a more discrete objection to something like a particular “message” or event; and (2) is the public accommodation “an abiding monopoly of access,” or does the would-be customer have a “fair shot” at obtaining the service elsewhere.

The answers to these questions will vary depending on the evidence the government has marshaled regarding a market failure it needs to address, the economic reality in which the conflict arises, and the breadth of the First Amendment objection at issue. And when courts balance these important interests, the religious objector will not always win. But the important point is that in these balancing scenarios, the religious objector’s rights should be given some weight, and the scrutiny should be just as strict regardless of whether the objection that triggers this analysis is based on speech or religious grounds. To support instead a double standard that treats religious exercise as less deserving of protection than any other First Amendment right would be the true constitutional anomaly.

— Stephanie Barclay is legal counsel at the Becket Fund for Religious Liberty and author of Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions with her colleague and law professor Mark Rienzi.

Sherif Girgis on Masterpiece Cake Case

by Ed Whelan

In a comprehensive essay on Public Discourse, Sherif Girgis explains why cake artist Jack Phillips has a First Amendment right not to be compelled to design and create custom wedding cakes for same-sex weddings, and he addresses and dismantles “the best ten counterarguments leveled by Colorado, by the ACLU, and by scholars who filed amicus briefs against Phillips.”

Rather than excerpt extensive parts of Girgis’s essay, I encourage you to read it in its entirety. I’ll just post here his brief summary of his argument:

Forcing Phillips to custom-design and create same-sex wedding cakes is compelled speech: it forces him to create an expressive (artistic) product carrying a message he rejects. It forces certain content onto his artistic work, in a kind of political censorship of art. And it does so without serving the type of interest that our constitutional law would consider a legitimate (much less a compelling) justification for interfering with anyone’s free speech. So Colorado’s decision violates Phillips’s First Amendment rights.

This Day in Liberal Judicial Activism—November 30

by Ed Whelan

1979—President Carter nominates This Day Hall of Famer Stephen Reinhardt to a seat on the Ninth Circuit.

1987—In the aftermath of the Senate’s defeat of the Supreme Court nomination of Judge Robert H. Bork and of Judge Douglas H. Ginsburg’s decision not to proceed with his intended nomination, President Reagan nominates Ninth Circuit judge Anthony M. Kennedy to fill the seat vacated by retired Justice Lewis F. Powell Jr.

1989—By a vote of 4 to 3, the Florida supreme court concocts a categorical rule that police violate the Fourth Amendment when they conduct drug searches by boarding intercity buses and questioning passengers. In her melodramatic majority opinion (in Bostick v. State), Justice Rosemary Barkett posits that the “intrusion upon privacy rights caused by the [practice] is too great for democracy to sustain,” and she equates the police conduct with methods employed by Nazi Germany.

On review, the Supreme Court (in Florida v. Bostick) rejects Barkett’s rule by a 6 to 3 vote (with Marshall, Stevens, and Blackmun in dissent). Justice O’Connor’s majority opinion determines that the same totality-of-the-circumstances inquiry that governs whether “encounters that take place on a city street or an airport lobby” constitute a seizure “applies equally to encounters on a bus.”

On remand, Barkett again concludes that an unlawful seizure occurred. This time, though, she is in dissent.

This Day in Liberal Judicial Activism—November 29

by Ed Whelan

2004—Objecting to governing law on homosexuals in the military, many law schools restricted the access of military recruiters to their students. In response, Congress enacted the Solomon Amendment, which provides that in order for a law school and its university to receive federal funding, the law school must offer military recruiters the same access to its campus and students that it provides to the nonmilitary recruiter receiving the most favorable access.

In FAIR v. Rumsfeld, a divided panel of the Third Circuit rules that the Solomon Amendment violates First Amendment speech guarantees by “requir[ing] law schools to express a message that is incompatible with their educational objectives.” According to the majority opinion of Judge Thomas Ambro, the message that law schools are supposedly being required to express is that discrimination on the basis of sexual orientation is permissible, and the means by which law schools are supposedly being required to express that message is by giving military recruiters the same access to students they give other recruiters.

On review, the Supreme Court unanimously reverses, in an opinion by Chief Justice Roberts. Roberts makes short work of the Third Circuit’s reasoning. The Solomon Amendment, he explains, “neither limits what law schools may say nor requires them to say anything.” Rather, it “regulates conduct, not speech,” as it “affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.” Because Congress could directly require that law schools provide access to military recruiters, it can impose the same requirement as a condition of government funding.

2016—Having earlier found North Carolina’s legislative districts to be the product of an unconstitutional racial gerrymander, a three-judge panel in the Middle District of North Carolina (in Covington v. North Carolina) orders the state to hold a special election in the fall of 2017, smack in the middle of the two-year term of the legislators elected in November 2016. In addition to cutting the legislators’ terms in half, the court order would also suspend the candidate-residency requirements in the state constitution for legislative candidates in the special election.

Six weeks later, the Supreme Court will block the panel’s order, and in June 2017, in a unanimous summary per curiam ruling, the Court will vacate the order. The Court chastises the panel for “address[ing] the balance of equities in only the most cursory fashion,” and it says that it lacks “confidence that the court adequately grappled with the interests on both sides of the remedial question before us.”

This Day in Liberal Judicial Activism—November 28

by Ed Whelan

1975—President Gerald Ford nominates Seventh Circuit judge John Paul Stevens to fill the Supreme Court seat vacated by retired Justice William O. Douglas. Not long before his death at the end of 2006, Ford rashly states that he is “prepared to allow history’s judgment” of his presidency to rest exclusively on his appointment of Stevens—and that he specifically agrees with Stevens’s extreme positions on the Establishment Clause. But Ford’s actions belie his words, for (as this essay of mine explains) his own funeral ceremony at National Cathedral that he so carefully planned could never have taken place as it did—and probably could not have occurred at all—if Stevens’s radical secularist misreading of the Establishment Clause were governing law.

2016—In what Fourth Amendment expert Orin Kerr will critique as yet another “very unpersuasive” opinion, magistrate judge James Orenstein rejects the government’s application for a search warrant on the spurious ground that the target of the search had consented to the search. Orenstein, Kerr observes, is “a leader in the Magistrate’s Revolt, a small group of federal magistrate judges who have often come up with unexpected theories to reject court-order applications in computer search and surveillance cases.”

This Day in Liberal Judicial Activism—November 25

by Ed Whelan

2013—In a wild administrative ruling (in In re Fonberg), the three-judge Judicial Council of the Ninth Circuit Executive Committee concludes that an unmarried court employee with a same-sex domestic partner is entitled to federal marital benefits. This, alas, is not the first time that Ninth Circuit chief judge Alex Kozinski has exercised his non-judicial administrative authority to carry out a sneak attack on marriage.