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.

This Day in Liberal Judicial Activism—June 21

by Ed Whelan

1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.” 

This Day in Liberal Judicial Activism—June 20

by Ed Whelan

2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”  

This Day in Liberal Judicial Activism—June 18

by Ed Whelan

1973—By a vote of five justices, the Supreme Court rules in United States v. SCRAP that plaintiffs, including a group of law students (“Students Challenging Regulatory Agency Procedures”), have standing to challenge the Interstate Commerce Commission’s decision not to suspend a 2.5% freight rate increase.

What is the alleged injury on which their standing is based? As the majority sums it up, the rate increase “would allegedly cause increased use of nonrecyclable commodities as compared to recyclable goods, thus resulting in the need to use more natural resources to produce such goods, some of which resources might be taken from the Washington area, and resulting in more refuse that might be discarded in national parks in the Washington area,” thus causing the plaintiffs economic, recreational and aesthetic harm. The majority even acknowledges that the case presents “a far more attenuated line of causation to the eventual injury” than in a case the previous year in which the Court found no standing, and it further observes that “all  persons who utilize the scenic resources of the country, and indeed all who breathe its air, could claim harm similar to that alleged by the environmental groups here. ”

1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.

This Day in Liberal Judicial Activism—June 17

by Ed Whelan

1974—Jacob John Dougan and four other members of his Black Liberation Army begin implementing their plan “to indiscriminately kill white people and thus start a revolution and a race war.” Armed with a pistol and a knife, they pick up an 18-year-old white hitchhiker, Stephen Anthony Orlando, drive him to a trash dump, stab him repeatedly, and throw him to the ground. As Orlando writhes in pain and begs for his life, Dougan puts his foot on Orlando’s head and shoots him twice—once in the chest and once in the ear. Later, Dougan makes tape recordings bragging about the murder and mails them to Orlando’s mother and to the media. Sample content: “He [Orlando] was stabbed in the back, in the chest and the stomach, ah, it was beautiful. You should have seen it. Ah, I enjoyed every minute of it. I loved watching the blood gush from his eyes.”

In 1992, on Dougan’s sixth appeal to the Florida supreme court, three dissenting Florida justices opine that the death penalty was a disproportionate sentence under the circumstances. Justice Parker McDonald’s dissent, joined by chief justice Leander Shaw and This Day Hall of Infamy inductee Rosemary Barkett, includes these remarkable observations (emphasis added):

“This case is not simply a homicide case, it is also a social awareness case. Wrongly, but rightly in the eyes of Dougan, this killing was effectuated to focus attention on a chronic and pervasive illness of racial discrimination and of hurt, sorrow, and rejection. Throughout Dougan’s life his resentment to bias and prejudice festered. His impatience for change, for understanding, for reconciliation matured to taking the illogical and drastic action of murder. His frustrations, his anger, and his obsession of injustice overcame reason. The victim was a symbolic representation of the class causing the perceived injustices.”

The events of this difficult case occurred in tumultuous times. During the time of the late sixties and early seventies, there was great unrest throughout this country in race relations.… I mention these facts not to minimize what transpired, but, rather, to explain the environment in which the events took place and to evaluate Dougan’s mind-set.”

“Understandably, in the eyes of the victim, or potential victims, the aggravating factors clearly outweigh the mitigating; in the eyes of the defendant, his friends, and most of those situated in the circumstances of Dougan, the death penalty is not warranted and is disproportionate to the majority of hate slayings, at least where the victim is black and the perpetrator is white.”

“In comparing what kind of person Dougan is with other murderers in the scores of death cases that we have reviewed, I note that few of the killers approach having the socially redeeming values of Dougan.” (This apparently refers to the dissent’s earlier observations that Dougan was “intelligent,” “well educated,” “a leader in the black community,” “taught karate and counseled black youths,” and once “participated in a sit-down strike in defiance of a court order” at a lunch counter that refused service to blacks.)  

This Day in Liberal Judicial Activism—June 15

by Ed Whelan

1964—In Reynolds v. Sims, the Supreme Court rules, by an 8-1 vote, that the apportionment of seats in both houses of the Alabama legislature violates the Equal Protection Clause. In his majority opinion for six justices, Chief Justice Warren rambles his way to the conclusion that the Equal Protection Clause “requires that a State make an honest and good faith effort to construct districts … as nearly of equal population as is practicable” (whatever that means). In a brief separate concurrence in the judgment, Justice Clark criticizes Warren’s “use of these vague and meaningless phrases.”

In dissent, Justice Harlan complains that the majority ignores “both the language and history” of the Fourteenth Amendment, which show that “the Equal Protection Clause was never intended to inhibit the States in choosing any democratic method they pleased for the apportionment of their legislatures.” Harlan objects that the Court’s ruling will “have the effect of placing basic aspects of [nearly all] state political systems under the pervasive overlordship of the federal judiciary,” and that it “is difficult to imagine a more intolerable and inappropriate interference by the judiciary.” The ruling, he concludes, is part of a “current mistaken view … that every major social ill in this country can find its cure in some constitutional ‘principle,’ and that this Court should ‘take the lead’ in promoting reform when other branches of government fail to act.”

1982—In a 5-4 ruling in Plyler v. Doe, Justice Brennan’s majority opinion holds that the Equal Protection Clause requires Texas to provide a free public education to children who are illegal aliens since it provides such education to children who are citizens or legal aliens. In dissent, Chief Justice Burger states:

“The Court makes no attempt to disguise that it is acting to make up for Congress’ lack of ‘effective leadership’ in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders. The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide ‘effective leadership’ simply because the political branches of government fail to do so.”

 

Ludicrous Misreading of Americans with Disabilities Act

by Ed Whelan

The Americans with Disabilities Act expressly defines “disability” to exclude “gender identity disorders not resulting from physical impairments.” In other words, the ADA does not confer any protections on a person who claims to have been discriminated against on the basis of such a gender identity disorder.

The crystalline clarity of this provision somehow didn’t stop federal district judge Joseph H. Leeson, Jr. In a ruling last month in Blatt v. Cabela’s Retail, Inc., Leeson denied an employer’s motion to dismiss the ADA claims of a former employee who alleged that he had “Gender Dysphoria, also known as Gender Identity Disorder” and had been discriminated against on the basis of that condition.

Let’s trace Leeson’s somersaults of reasoning:

1. Noting that the employee contended that the ADA’s exclusion of gender identity disorders would violate the Constitution, Leeson invokes the canon of constitutional avoidance in interpreting the ADA. Under the canon of constitutional avoidance, if a serious doubt is raised as to the constitutionality of a federal law, a court will determine whether there is a “fairly possible” alternative interpretation of the federal law that avoids the constitutional issue.

One tiny problem: Leeson never bothers to explain how reading the ADA to mean what it says would present any constitutional problem. Oh, I’m sure that some academic somewhere could spin some theory about how some norm implicit in some penumbra of some emanation of some simple word in the Constitution could require that any federal law that protects against discrimination on the basis of disabilities somehow also protect against discrimination on the basis of gender identity disorders. But Leeson doesn’t even try to spell out such a theory. He simply assumes, without a single word of explanation, that the ADA’s exclusion of “gender identity disorders not resulting from physical impairments” is constitutionally problematic.

2. This is beyond bizarre: Leeson concludes that it is “fairly possible” to read the term gender identity disorders “narrowly to refer to only the condition of identifying with a different gender, not to encompass (and therefore exclude from ADA protection) a condition like Blatt’s gender dysphoria, which goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”

What?!?

We’re supposed to believe that it is “fairly possible” to read gender identity disorders to mean only gender identity (“identifying with a different gender”) and not to extend to disorders? That’s nuts.

Further, the ADA’s general definition of disability involves an “impairment that substantially limits one or more major life activities of [an] individual.” Gender identity without “clinically significant stress and other impairments that may be disabling” wouldn’t be a disability. So what conceivable sense would it make to carve gender identity—but not gender identity disorders— out of the general term disability?

This Day in Liberal Judicial Activism—June 14

by Ed Whelan

1985—In Jenkins v. Missouri, federal district judge Russell G. Clark launches his 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.” Over the next twelve years, Clark will (as this report summarizes it) order the state of Missouri and the school district to spend nearly two billion dollars for “higher teachers’ salaries, 15 new schools, and such amenities as an Olympic-sized swimming pool with an underwater viewing room, television and animation studios, a robotics lab, a 25-acre wildlife sanctuary, a zoo, a model United Nations with simultaneous translation capability, and field trips to Mexico and Senegal.”

The results will, however, prove dismal: “Test scores did not rise; the black-white gap did not diminish; and there was less, not greater, integration.”

1993—President Clinton announces that he will nominate D.C. Circuit judge Ruth Bader Ginsburg to fill the Supreme Court seat being vacated by retiring Justice Byron White.

In addition to dissenting from Roe and favoring its overruling, White authored the Court’s opinion in 1986 (in Bowers v. Hardwick) rejecting as “at best, facetious” the notion that the Constitution confers a right to homosexual sodomy. In stark contrast to White, the former ACLU activist Ginsburg maintained that the Constitution protected a right to abortion and even required taxpayer funding of abortion, and she had stated her sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy. Somehow legal academics fail to rise in alarm at the prospect that Ginsburg’s appointment will alter the “balance” of the Court.  

 

Sixth Circuit to Hear Important Establishment-Clause Case

by Daniel Blomberg

This week, the en banc Sixth Circuit will hear Bormuth v. County of Jackson. The case illustrates how broken establishment-clause jurisprudence has long been. But as Becket and Stanford Law School professor Michael McConnell argue in our amicus brief, it’s also a great case for recognizing that the fix is now at hand. And it may well open up an avenue for the Supreme Court to ensure the fix is final.

Readers of Bench Memos well know that the Supreme Court broke the establishment clause about 45 years ago with its decision in Lemon v. Kurtzman. That decision exiled standard constitutional analysis and its focus on historical understanding, and replaced it with a vague, stitched-together purpose/endorsement/entanglement test. As Seventh Circuit judge Frank Easterbrook noted in a 2012 dissent, Lemon’s concoction was simply “made up by the Justices.” And judicial consensus quickly developed that the concoction was inherently unstable and impracticable, leaving courts — to quote now-Justice Gorsuch (who was himself quoting a Sixth Circuit opinion) — in “Establishment Clause purgatory.”

That purgatory has lasted for decades. Lemon became Justice Scalia’s infamous undying “ghoul in a late night horror movie,” toppling memorials to police officers, shuttering ministries to prisoners, and censoring historic landmarks. Impervious to repeated judicial attempts to ward it off, Lemon lurched on, outliving even Justice Scalia. Or so it appeared.

But a closer look at the Supreme Court’s 2014 decision in Town of Greece v. Galloway shows that Lemon is, at long last, dead. In 180-degree contrast to Lemon’s historical agnosticism and arbitrary line-drawing, Town of Greece set a new standard that “the Establishment Clause must be interpreted by reference to historical practices and understandings.” In the post-Lemon era, Town of Greece directs that “any test” under the establishment clause must acknowledge history. As Justice Alito elaborated in concurrence, if there is any daylight between a judicial test and historical practice, that “calls into question the validity of the test, not the historic practice.”

In a 2015 concurrence, Sixth Circuit Judge Alice Batchelder correctly recognized Town of Greece as a “major doctrinal shift” that worked “a sea change in constitutional law.” While the change is dramatic, it isn’t unheralded. Actions speak louder than words, and the writing on the wall here was that the Supreme Court last applied Lemon to determine the merits of an establishment-clause claim in 2005. By contrast, both of its establishment-clause decisions in the last five years — Hosanna-Tabor and Town of Greece — relied explicitly and heavily on history to guide the Court’s interpretation of the clause.

And it’s not like courts cannot figure out what the establishment clause means. Earlier this year, in fact, Tenth Circuit judges Paul Kelly and Timothy Tymkovich drew on Town of Greece and Professor McConnell’s historical research to identify six “general features” of an historical establishment of religion: “‘(1) [state] control over doctrine, governance, and personnel of the church; (2) compulsory church attendance; (3) financial support; (4) prohibitions on worship in dissenting churches; (5) use of church institutions for public functions; and (6) restriction of political participation to members of the established church.’” State action that presents these features will normally violate the establishment clause, and if they are absent, the state action will not constitute an impermissible establishment.

But the lower courts still feel haunted by Lemon. Which brings us back to the Sixth Circuit, where the Bormuth case essentially centers on Lemon’s hopelessly sloppy endorsement prong. The pagan animist plaintiff, Peter Bormuth, claims that the county commission’s prayer habits (and a few unkind words) made him feel so unwelcome that he was unconstitutionally intimidated from participating in county meetings. His primary complaint was not with prayers, but with who prayed them: the legislators themselves, not chaplains or visiting ministers, both of which the Supreme Court has already said are okay.

The now-vacated (and sharply split) panel opinion agreed with Bormuth. Never mind that he appears to have quickly gotten over the alleged intimidation: his personal webpage lists several videos of him confidently speaking to the county commission since he filed his lawsuit, including to wish the commissioners a happy Solstice and to address the female commissioners specifically about the dangers of breast cancer. Nor did it matter to the panel that Bormuth has a history of firing off federal lawsuits. His past cases include claims of religious discrimination against a community college (for a poetry reading where a Christian woman allegedly read before he could), the Michigan secretary of state (for allegedly conspiring with the state Democrat party to rig a primary in favor of a Christian minister), and a private nonprofit nature preserve (for denying him access to the park after he threatened to violently hex park staff).

So what happened? As Judge Griffin’s dissent persuasively explained, the panel majority got stuck on Lemon. Which is surprising, since not only is Town of Greece directly on point as a legislative-prayer case, but Justice Alito’s concurring opinion also pointed to a nearby Michigan county and city’s practice of legislator-led prayer as both constitutionally innocuous and rather common. More importantly, Town of Greece required historical analysis for all future establishment-clause cases. Yet the panel struck down a legislative-prayer practice without a jot or tittle of history. Instead, it turned entirely on what was effectively Lemon’s endorsement prong.

Notably, the en banc Sixth Circuit’s decision to vacate the panel opinion augurs well. But the en banc Fourth Circuit is also considering a similar legislative-prayer case and it appears ready to continue following Lemon. So the Supreme Court may soon need to intervene to clarify that Lemon is really and truly dead.

In any event, the time is now at hand for courts to exorcise Lemon’s ghost and follow Town of Greece’s command to treat historical analysis as the touchstone of establishment-clause analysis.

– Daniel Blomberg is legal counsel at Becket.

This Day in Liberal Judicial Activism—June 13

by Ed Whelan

1966—In a 5-4 ruling in Miranda v. Arizona, Chief Justice Warren’s majority opinion declares that a voluntary confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction.

In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

2008—In Belmontes v. Ayers, Ninth Circuit arch-activists Stephen Reinhardt and Richard Paez join forces to rule that a murderer who had been sentenced to death received ineffective assistance of counsel during the sentencing phase of his trial. In dissent, Judge Diarmuid O’Scannlain explains that “the majority overstates the mitigating evidence, understates the properly admitted aggravating evidence, and ignores the further aggravating evidence that would have come in on rebuttal.”

Some 17 months later, in a unanimous per curiam opinion (in Wong v. Belmontes), the Supreme Court summarily reverses the ruling—the third time in this same case that the Court has reversed or vacated a ruling made by Reinhardt and Paez over O’Scannlain’s dissent (though Reinhardt can take consolation in the fact that one overturning was by a 5-4 vote and another was a “GVR”—an order granting, vacating and remanding in light of an intervening ruling by the Court). Among other things, the Court states that it “simply cannot comprehend the assertion by the Court of Appeals that this case did not involve ‘needless suffering’”:

The jury saw autopsy photographs showing Steacy McConnell’s mangled head, her skull crushed by 15 to 20 blows from a steel dumbbell bar the jury found to have been wielded by Belmontes. McConnell’s corpse showed numerous “defensive bruises and contusions on [her] hands, arms, and feet,” which “plainly evidenced a desperate struggle for life at [Belmontes’] hands.” Belmontes left McConnell to die, but officers found her still fighting for her life before ultimately succumbing to the injuries caused by the blows from Belmontes. The jury also heard that this savage murder was committed solely to prevent interference with a burglary that netted Belmontes $100 he used to buy beer and drugs for the night. McConnell suffered, and it was clearly needless.

The Court also notes that the Ninth Circuit majority, in addressing for the first time the murderer’s claim of ineffective assistance of counsel, suddenly “changed its view of the evidence.” Mitigation evidence that it had, in an earlier phase of the litigation, called “substantial” somehow became “cursory” and “insubstantial.” Whereas Reinhardt had concluded that “[t]here can be little doubt” that counsel’s performance “was prejudicial,” the Supreme Court labels “fanciful” the notion that any prejudice resulted.

 

This Day in Liberal Judicial Activism—June 12

by Ed Whelan

2008—In Boumediene v. Bush, the Supreme Court, by a vote of 5 to 4, rules that aliens detained as enemy combatants at Guantanamo have a constitutional habeas right to challenge the basis of their detention in the course of an ongoing war. In so doing, the majority invalidates the statutory scheme that Congress and the president developed. As Chief Justice Roberts states in his dissent (for all four dissenters):

Today the Court strikes down as inadequate the most generous set of procedural protections ever afforded aliens detained by this country as enemy combatants. The political branches crafted these procedures amidst an ongoing military conflict, after much careful investigation and thorough debate. The Court rejects them today out of hand, without bothering to say what due process rights the detainees possess, without explaining how the statute fails to vindicate those rights, and before a single petitioner has even attempted to avail himself of the law’s operation. And to what effect? The majority merely replaces a review system designed by the people’s representatives with a set of shapeless procedures to be defined by federal courts at some future date. One cannot help but think, after surveying the modest practical results of the majority’s ambitious opinion, that this decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.

Justice Scalia (also on behalf of all four dissenters) condemns the “game of bait-and-switch that today’s opinion plays upon the Nation’s Commander in Chief,” including the majority’s abandonment of the “settled precedent” of Johnson v. Eisentrager on which the president relied. Deploring the majority’s “inflated notion of judicial supremacy,” Scalia concludes:

Today the Court warps our Constitution in a way that goes beyond the narrow issue of the reach of the Suspension Clause, invoking judicially brainstormed separation-of-powers principles to establish a manipulable “functional” test for the extraterritorial reach of habeas corpus (and, no doubt, for the extraterritorial reach of other constitutional protections as well). It blatantly misdescribes important precedents, most conspicuously Justice Jackson’s opinion for the Court in Johnson v. Eisentrager. It breaks a chain of precedent as old as the common law that prohibits judicial inquiry into detentions of aliens abroad absent statutory authorization. And, most tragically, it sets our military commanders the impossible task of proving to a civilian court, under whatever standards this Court devises in the future, that evidence supports the confinement of each and every enemy prisoner. The Nation will live to regret what the Court has done today.

This Day in Liberal Judicial Activism—June 11

by Ed Whelan

1986—In a 5-4 ruling, the Supreme Court, in a majority opinion by Justice Blackmun (in Thornburgh v. American College of Obstetricians and Gynecologists), declares unconstitutional the informed-consent (and various other) provisions of the Pennsylvania Abortion Control Act of 1982.

The ruling triggers three noteworthy dissents: Chief Justice Burger, who was part of the majority in Roe v. Wade, says that if the result in Thornburgh is consistent with Roe, then “we should reexamine Roe.” Justice White, the JFK appointee who dissented in Roe, expressly calls for Roe to be overruled. And Justice O’Connor observes that Justice Blackmun’s majority opinion “makes it painfully clear that no legal rule or doctrine is safe from ad hoc nullification by this Court when an occasion for its application arises in a case involving state regulation of abortion.” (Six years later, in Planned Parenthood v. Casey, O’Connor will practice the same ad hoc nullification of legal rules on abortion that she decries.)

This Day in Liberal Judicial Activism—June 10

by Ed Whelan

1968—What does Chief Justice Earl Warren do when he encounters a 45-year-old precedent that has stood (in his own words) as an “impenetrable barrier” to suits by federal taxpayers (in their capacity as taxpayers) challenging the constitutionality of the uses for which Congress has authorized the expenditure of public funds? In Flast v. Cohen, Warren’s majority opinion for eight justices concocts an unprincipled, ad hoc exception for taxpayer suits challenging federal spending on Establishment Clause grounds.

This Day in Liberal Judicial Activism—June 9

by Ed Whelan

2008—With opinions about to be issued concerning the en banc petition in Ricci v. DeStefano, Second Circuit judge Sonia Sotomayor and her panel colleagues—fellow Clinton appointees Rosemary Pooler and Robert Sack—evidently realize that they have failed in their bid to bury the claims by 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams. They therefore convert their nonprecedential summary order dismissing the firefighters’ claims into an otherwise virtually identical per curiam precedential ruling dismissing the claims.

Three days later, the Second Circuit issues an order denying en banc rehearing by a 7-6 vote. In a blistering dissent, Judge José Cabranes (also a Clinton appointee) condemns the panel’s mistreatment of the firefighters’ claims. As he sums it up:

This per curiam opinion adopted in toto the reasoning of the District Court, without further elaboration or substantive comment, and thereby converted a lengthy, unpublished district court opinion, grappling with significant constitutional and statutory claims of first impression, into the law of this Circuit. It did so, moreover, in an opinion that lacks a clear statement of either the claims raised by the plaintiffs or the issues on appeal. Indeed, the opinion contains no reference whatsoever to the constitutional claims at the core of this case, and a casual reader of the opinion could be excused for wondering whether a learning disability played at least as much a role in this case as the alleged racial discrimination.

And then this killer understatement:

This perfunctory disposition rests uneasily with the weighty issues presented by this appeal.

Cabranes expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.”

The Supreme Court proceeds to grant review and, one year later—while Sotomayor’s Supreme Court nomination is pending—reverses the panel decision.

Who is Trevor McFadden?

by Carrie Severino

Trevor McFadden is President Trump’s nominee to the U.S. District Court for the District of Columbia

Age:  38

Current Position:  Acting Principal Deputy Assistant Attorney General and Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice (Washington, D.C.)

Education:

  • B.A., Wheaton College (2001), magna cum laude
  • J.D., University of Virginia School of Law (2006), Order of the Coif; Editor, Virginia Law Review

Clerkship:  Judge Steven M. Colloton of the U.S. Court of Appeals for the Eighth Circuit (2006-2007)

Experience:

  • 2007-2009:  Counsel to the Deputy Attorney General, Office of the Deputy Attorney General, U.S. Department of Justice, (Washington, D.C.)
  • 2009-2013:  Assistant U.S. Attorney, U.S. Attorney’s Office for the District of Columbia (Washington, D.C.)
  • 2013-2017:  Associate and Partner, Baker & McKenzie LLP (Washington, D.C.)
  • January 2017-present:  Acting Principal Deputy Assistant Attorney General and Deputy Assistant Attorney General, Criminal Division, U.S. Department of Justice (Washington, D.C.)

Notable Matters:

  • Under McFadden’s leadership, the Department of Justice has brought the Nation’s first prosecution under the federal female genital mutilation statute and obtained a record 27-year sentence for a Russian hacker convicted of defrauding victims of over $169 million. 
  • During his time in private practice at Baker & McKenzie LLP, Mr. McFadden was a member of the Compliance, Investigations and Government Enforcement Group, representing multinational and domestic clients in white collar matters, including FCPA investigations, anti-money laundering compliance work, and U.S. trade compliance matters.

Biographical Notes:  Mr. McFadden is a native of the D.C. area and a former police officer.  He is married and has two children.

 

Who is Stephanos Bibas?

by Carrie Severino

Stephanos Bibas

Nominee to the United States Court of Appeals for the Third Circuit

Stephanos Bibas is President Trump’s nominee to the United States Court of Appeals for the Third Circuit

Age:  50 (approximate)

Current Position:  Professor of Law, University of Pennsylvania Law School

Education:

  • B.A., Columbia University (1989), summa cum laude; Phi Beta Kappa (early election, top 2% of class)
  • B.A. and M.A., University College, Oxford University (1991); Gibbs Book Prize in contracts, torts, and land law; Alan Urbach Memorial Prize in jurisprudence; 1st Place Speaker, 1991 World Debate Championships
  • J.D., Yale Law School (1994); Symposium Editor, Yale Law Journal; Thurman Arnold Prize (Moot Court – Best Oralist); Stewart Prize (Moot Court – Best Team)

Judicial Clerkships: Judge Patrick Higginbotham, U.S. Court of Appeals for the Fifth Circuit (1994-1995); Associate Justice Anthony Kennedy of the U.S. Supreme Court (1997-1998)

Experience:

  • 1995-1997:  Associate, Covington & Burling LLP (Washington, D.C.)
  • 1998-2000:  Assistant United States Attorney, U.S Attorney’s Office for the Southern District of New York (New York, NY)
  • 2000-2001:  Research Fellow, Yale Law School (New Haven, CT)
  • 2001-2006:  Associate Professor, University of Iowa College of Law (Iowa City, IA)
  • Fall 2005:  Visiting Professor, University of Pennsylvania Law School
  • Winter/Spring 2006:  Visiting Associate Professor, University of Chicago Law School
  • 2006-present:  Professor of Law, Professor of Criminology (secondary appointment), University of Pennsylvania Law School (Philadelphia, PA)

Notable matters

  • Professor Bibas has studied the powers and incentives that shape how prosecutors, defense counsel, defendants, and judges behave in the real world of guilty pleas.  His law review article, Plea Bargaining Outside the Shadow of Trial, 117 Harvard Law Review 2463 (2004), explored the agency costs, structural forces, and psychological biases that cause plea bargaining to deviate from expected trial outcomes.
  • Professor Bibas serves as Director of Penn’s Supreme Court Clinic and has litigated a wide range of Supreme Court cases in that capacity.  He and his co-counsel won a landmark victory in Padilla v. Kentucky in 2010, persuading the Court to recognize the right of noncitizen defendants to accurate information about deportation before they plead guilty.  His academic work also played a central role in the Supreme Court’s 2004 landmark case of Blakely v. Washington.

Awards:  Robert A. Gorman Award for Excellence in Teaching (2008), FBI and NYPD awards for outstanding performance in grave-robbing case as an AUSA at SDNY (case became the subject of a Bravo/BBC documentary).

Who is Ralph Erickson?

by Carrie Severino

Ralph R. Erickson is President Trump’s nominee to the U.S. Court of Appeals for the Eighth Circuit

Age:  58 (approximate)

Current Position:  U.S. District Court Judge, District of North Dakota

Education:

  • B.A., Jamestown College (1980)
  • J.D., The University of North Dakota Law School (1984)

Experience:

  • 1984-1994:  Associate, Ohnstad Twichell, P.C.; solo practice (West Fargo, ND)
  • 1993-1994:  Magistrate Judge, Cass County Court (Fargo, ND)
  • 1994:  County Judge, Traill, Steele, Nelson & Griggs Counties Court, North Dakota
  • 1995-2003:  State District Judge, East Central Judicial District Court (Fargo, ND)
  • 2003-present:  U.S. District Court Judge, District of North Dakota

Notable matters

  • Judge Erickson was nominated to the U.S. District Court for the District of North Dakota by President George W. Bush and was confirmed by unanimous consent.  
  • During his time in private practice, Judge Erickson was a trial lawyer and focused on personal injury, workers compensation, and divorce.  He also prosecuted for the City of West Fargo, North Dakota.  
  • In 2004, Judge Erickson presided over North Dakota’s first federal death penalty case, which was also the first death penalty case in North Dakota in over a century.

Biography:  Judge Erickson was born in Thief River, Minnesota and grew up in Rugby, North Dakota.  He is married and has two daughters.

Who is Allison Eid?

by Carrie Severino

Allison Eid is President Trump’s nominee to the U.S. Court of Appeals for the Tenth Circuit.  She also appeared on his list of potential Supreme Court nominees.

Age: 51 (approximate)

Current Position: Associate Justice on the Colorado Supreme Court (Denver, CO)

Education:

  • B.A., Stanford University (1987), with Distinction, Phi Beta Kappa
  • J.D., University of Chicago School of Law (1991), with High Honors, Order of the Coif, Articles Editor, University of Chicago Law Review

Judicial Clerkships:

  • Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit
  • Associate Justice Clarence Thomas of the United States Supreme Court (1993-1994)

Experience:

  • 1987-1988: Special Assistant and Speechwriter to William Bennett, Secretary of Education (Washington, D.C.)
  • 1994-1998:  Associate, Arnold & Porter LLP (Denver, CO)
  • 2005-2006:  Solicitor General of the State of Colorado (Denver, CO)
  • 1998-present:  Associate Professor, University of Colorado School of Law (Denver, CO)
  • 2006-present:  Associate Justice on the Colorado Supreme Court (Denver, CO)

Notable Matters:  

  • In Stamp v. Vail Corp. 172 P.3d 437 (Colo. 2007), Justice Eid wrote separately to dissect the statute in question, and determined that the majority overreached in interpreting the state’s wrongful death statute by reading “injury” as “injury or death.”  Justice Eid wrote this was an impermissible injection of judicial will into a legislative determination evidenced by the plain text.  
  • In re. Matter of Title, Ballot Title and Submission Clause, 328 P.3d 127 (2014) Justice Eid dissented from the majority’s opinion that a proposed ballot initiative did not have a “single subject,” as state law requires.  Justice Eid argued that, however unwieldy, the proposed initiative did in fact have a single subject and mission (“The proposed initiative might be a good idea or a bad idea; we must leave that decision to the voters.”).
  • In Taxpayers for Public Education v. Douglas County School District, 356 P.3d 833 (Colo. App. 2013), Justice Eid partially concurred and partially dissented in a high-profile case about school choice.  First, Eid argued that the majority misinterpreted the plain language of Colorado’s constitution to reach the incorrect result that state funding cannot even incidentally benefit church or sectarian schools. Second, Eid wrote that the majority improperly refused to consider whether the state constitutional section at issue (the state’s version of the “Blaine Amendment”) was based on impermissible anti-Catholic bias. 

Biographical Notes:  Justice Eid is married and has two children.