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.  

Another Excellent Collection of Lower Court Nominees

by Carrie Severino

President Trump has just announced his latest batch of appellate and district court nominees.  It’s a fantastic list, again drawing on his previous success from his Supreme Court list by nominating Colorado Supreme Court Justice Allison Eid to fill Justice Gorsuch’s vacant seat on the U.S. Court of Appeals for the Tenth Circuit.  Many of the nominees are well-known in the conservative legal movement and have shown commitment to principled and evenhanded application of the law throughout their careers.  For the many Americans whose top concern in November was electing a president who would put committed constitutionalists to the courts, this is another major victory.  

I’ll follow this post with posts giving background information about each of the appellate nominees.

Update:

Here are profiles of the three appellate nominees as well as that of the nominee for the District of DC.

 

This Day in Liberal Judicial Activism—June 7

by Ed Whelan

1965— In Griswold v. Connecticut, the executive director of Planned Parenthood of Connecticut prescribed a contraceptive device for a married woman and contrived to get himself arrested for violation of an 1879 state law against use of contraceptives—a law that had never been enforced. In his majority opinion declaring a constitutional right for married persons to use contraceptives, Justice William O. Douglas (see April 4, 1939) infamously asserts that “specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance” and that “[v]arious [of these] guarantees create zones of privacy”—all of which, of course, it is the Court’s power and duty to discern. Douglas then cites six cases that supposedly “bear witness that the right of privacy which presses for recognition here is a legitimate one.” In fact, those cases did no such thing. (One case, for example, held merely that a homeowner’s conviction for resisting an inspection of his rat-infested home did not violate due process.)

Douglas purports to confine his ruling to the marital relationship: “We deal with a right of privacy older than the Bill of Rights—older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.” That this celebration of marriage would come from Douglas, who, in the year he penned it, was divorcing his third wife (after two years of marriage) and marrying his fourth, might suggest that it shouldn’t be taken seriously. The Court’s ruling seven years later in Eisenstadt v. Baird (see This Day for March 22, 1972) would confirm that sense.

1993— New Jersey legal journals report that federal district judge H. Lee Sarokin personally accepts from the New Jersey Group Against Smoking Pollution the “C. Everett Koop Award for significant achievement toward creating a smokefree society.” Remarkably, Sarokin receives the award for his handling of a personal-injury action against cigarette manufacturers—the very matter (see This Day for February 6, 1992) in which the Third Circuit had already taken the extraordinary action of removing him from the case for “judicial usurpation of power,” for violating “fundamental concepts of due process,” and for destroying any appearance of impartiality.

2006—In a notorious speech at Radcliffe in which she recounts her 1960s-nostalgia-inspired “crying jag” at a Simon and Garfunkel concert in 2003, New York Times Supreme Court reporter Linda Greenhouse rants about “the sustained assault on women’s reproductive freedom” and “the hijacking of public policy by religious fundamentalism.” Greenhouse later defends these comments as “statements of fact,” but the Times’s public editor criticizes her for violating her “overriding obligation to avoid publicly expressing these kinds of personal opinions”—and for “whining” about “the difficulties journalists face in being citizens.”

Statutory Interpretation à la Sotomayor

by Ed Whelan

In Advocate Health Care Network v. Stapleton, issued today, Justice Kagan wrote a unanimous opinion for the Court on an ERISA issue. But Justice Sotomayor somehow saw fit to write a brief concurring opinion, the heart of which is this badly confused series of observations (citations—none to precedents—omitted; emphasis added):

I join the Court’s opinion because I am persuaded that it correctly interprets the relevant statutory text. But I am nonetheless troubled by the outcome of these cases. As the majority acknowledges, the available legislative history does not clearly endorse this result. That silence gives me pause: The decision to exempt plans neither established nor maintained by a church could have the kind of broad effect that is usually thoroughly debated during the legislative process and thus recorded in the legislative record. And to the extent that Congress acted to exempt plans established by orders of Catholic Sisters, it is not at all clear that Congress would take the same action today with respect to some of the largest health-care providers in the country.

If Sotomayor is “persuaded” that Kagan’s opinion “correctly interprets the relevant statutory text,” why is she “nonetheless troubled”? For two reasons, apparently.

First, because the legislative history is silent on the question. Sotomayor has zero legislative experience, yet she imagines herself competent to assess what sort of decisions are “usually thoroughly debated during the legislative process.” And even if she were competent to make such an assessment, how could it matter that the “silence” of legislative history “does not clearly endorse” the statutory reading? Is she suggesting a rule under which the best statutory reading must also be supported by the legislative history, at least where she would expect the matter to have been “thoroughly debated”? So where the legislative history is silent, would she then sometimes pick an inferior statutory reading?

Second, Sotomayor muses that “it is not at all clear that Congress would take the same action today”?!? But what possible bearing does that have on interpreting an existing statute?

Former Minnesota Supreme Court Justices Support Stras Nomination

by Jonathan H. Adler

On Friday, the Minneapolis Star-Tribune published a letter by three former Minnesota Supreme Court justices sent to Senate leadership and Minnesota’s Senate delegation supporting President Trump’s nomination of Justice David Stras to the U.S. Court of Appeals for the Eighth Circuit. It reads in part:

We write to urge that the Senate Judiciary Committee and the U.S. Senate act expeditiously to confirm the nomination of Minnesota Associate Supreme Court Justice David R. Stras to the Eighth Circuit Court of Appeals. Justice Stras has all the attributes and qualifications necessary to make an excellent circuit court judge. We have firsthand knowledge that this is true given that we served with him as justices on the Minnesota Supreme Court. . . .

As his colleagues on the court, we have gained firsthand insights into his abilities and qualifications. He is a hard worker and was always prepared for the cases that came before us. He was a valued voice during court conferences. While he looks at issues from a definite and well-defined perspective, he evaluates legal issues with objectivity and an open mind, traits that are not universal. We found him to be independent and impartial in his approach to the law.

As noted in an accompanying op-ed, the three authors of the letter — Alan Page, Helen Meyer and Paul Anderson – are not generally viewed as conservative themselves. Yet they support confirmation of Justice Stras because his qualifications, intellect and temperament make him well suited for the federal courts.

This Day in Liberal Judicial Activism—June 5

by Ed Whelan

1968—Sirhan Sirhan assassinates Democratic presidential contender Robert F. Kennedy just after midnight during the celebration of Kennedy’s victory in the California primary. Sirhan’s death sentence for the crime is voided when the California supreme court in 1972 misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it mis-imagines contemporary standards to be. (See This Day for February 18, 1972.)

This Day in Liberal Judicial Activism—June 3

by Ed Whelan

1991—By a vote of 6 to 3, the Supreme Court rules (in Edmonson v. Leesville Concrete Co.) that a private litigant in a civil case violates the equal-protection rights of a potential juror when the litigant excludes the juror on account of race. The Court further rules that the opposing party has standing to assert the excluded juror’s equal-protection claim.

In dissent (joined by Chief Justice Rehnquist and Justice Scalia), Justice O’Connor explains that “a peremptory strike by a private litigant is fundamentally a matter of private choice and not state action.”

This Day in Liberal Judicial Activism—June 1

by Ed Whelan

1992—In Davis v. Davis, the Tennessee supreme court decides a battle between a divorcing couple over rights to their frozen embryos stored in a fertility clinic. Writing for the court, Justice Martha Craig Daughtrey undertakes a lengthy excursus that culminates in an ad hoc balancing test weighted strongly in favor of destruction of the human embryos: “Ordinarily, the party wishing to avoid procreation should prevail…” Daughtrey extrapolates a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. She then relies on skimpy psychotherapy articles to concoct a right of a voluntary “gamete-provider” to avoid unwanted genetic parenthood.

The obvious explanation for Daughtrey’s various frolics and detours is that Davis was decided weeks before the U.S. Supreme Court was expected—wrongly, as it turns out—to use its Planned Parenthood v. Casey decision to overturn Roe v. Wade and to restore abortion policy to the democratic processes. By her opinion, Daughtrey contrives to establish a Tennessee version of Roe. (In 1993, President Clinton appoints Daughtrey to the Sixth Circuit.)

Seventh Circuit’s Confusion on Stereotyping

by Ed Whelan

In a ruling yesterday, a panel of the Seventh Circuit affirmed the grant of a preliminary injunction requiring a school district to allow a girl who identifies as male to use the boys’ restrooms at her high school. The panel holds that Title IX and the Equal Protection Clause of the Constitution both prohibit discrimination against an individual based on that individual’s failure to conform to sex stereotypes. But they somehow completely miss the larger point that the transgender ideology is built on sex stereotypes.

As a result, the panel has things exactly backwards. It is sex stereotyping to say that a girl who looks like a boy should use the boys’ restroom. But that is exactly the relief that the student seeks and that the panel has ordered. It is patently not sex stereotyping to say that a girl who behaves, walks, talks, and dresses in a manner that doesn’t conform to sex stereotypes should nonetheless be treated as a girl and should use the girls’ restroom.

I’ll add just a couple of additional observations:

1. According to the panel, Seventh Circuit precedent establishes a “low threshold” on the likelihood-of-success inquiry for preliminary injunctive relief. Specifically, a plaintiff seeking such relief need “only show that his chances to succeed on his claims are ‘better than negligible.’” So even the panel’s mistaken ruling should be understood as saying no more than that the student’s legal claims are “better than negligible.”

2. The panel’s embrace of the transgender ideology—namely, that the objective fact of biological sex is some sort of arbitrary fiction “assigned at birth” and that the subjective conception of gender identity is the genuine reality that demands recognition and respect—is evident from the outset of its opinion. We are told at the outset that the student’s request to use the boys’ restroom “is not so simple because Ash is a transgender boy.” (Emphasis added.) I wonder how many readers keep clearly in mind that that means that Ash is a girl who identifies as male. Why not instead say that the request “is not so simple because Ash is a biological female who identifies as male”? Relatedly, the opinion uses male pronouns for Ash.

This Day in Liberal Judicial Activism—May 31

by Ed Whelan

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

 

This Day in Liberal Judicial Activism—May 29

by Ed Whelan

1992—According to Jan Crawford Greenburg’s Supreme Conflict, Justice Anthony Kennedy writes a note to Justice Harry Blackmun asking to meet him “about some developments in Planned Parenthood v. Casey … [that] should come as welcome news.” The news is that Kennedy is retreating from his conference vote to apply a deferential standard of review to the abortion regulations under challenge. One month later, Justices O’Connor, Kennedy, and Souter issue a joint opinion in Casey that is breathtaking in its grandiose misunderstanding of the Constitution and of the Supreme Court’s role. (More on this in a month.)

2001—Does the Americans with Disabilities Act of 1990 require that the PGA Tour allow a disabled contestant to use a golf cart in its professional tournaments when all other contestants must walk? Answering in the affirmative (in PGA Tour, Inc. v. Martin), Justice Stevens’s opinion for the Supreme Court determines that walking is not “fundamental” to tournament golf. An excerpt from Justice Scalia’s classic dissent:

“If one assumes…that the PGA TOUR has some legal obligation to play classic, Platonic golf…then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States … to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a ‘fundamental’ aspect of golf. Either out of humility or out of self-respect (one or the other) the Court should decline to answer this incredibly difficult and incredibly silly question.”

 

This Day in Liberal Judicial Activism—May 28

by Ed Whelan

1963— Retired justice Felix Frankfurter, having witnessed the appointment of his replacement, Arthur Goldberg, create a majority bloc of liberal activists on the Supreme Court, writes to Justice Harlan to lament “the atmosphere of disregard for law and to a large extent of the legal profession that now dominates the present Court and the Court on which I sat.” (Source: Seth Stern & Stephen Wermiel, Justice Brennan.) Decades later, the situation will be transformed—but, alas, for the worse—as “a large extent of the legal profession,” having been indoctrinated by the disciples of the Warren Court, will display a similar “disregard for law.”

2013—In two 5-4 rulings (with Justice Kennedy joining the four liberals), the Supreme Court creates more confusion over federal habeas procedures.

In McQuiggin v. Perkins, the Court, in an opinion by Justice Ginsburg, creates an “actual innocence” exception to the statute of limitations on federal habeas petitions set forth in the Antiterrorism and Effective Death Penalty Act of 1996. Never mind, as Justice Scalia points out in dissent, that AEDPA provides its own actual-innocence exception (one that the petitioner failed to satisfy). Scalia’s lead item in what he calls the Court’s “statutory-construction blooper reel” is the Court’s “flagrant breach of the separation of power” in concocting an exception to AEDPA’s “clear statutory command.”

In Trevino v. Thaler, the Court, in an opinion by Justice Breyer, significantly broadens a purportedly “narrow exception” that it had created just the previous year. As Chief Justice Roberts (joined by Justice Alito) complains in his dissent, the Court in that earlier ruling (which they both joined) had been “unusually explicit about the narrowness of [its] decision” and had included “aggressively limiting language.” But today it “throws over the crisp limit [it] made so explicit just last Term” and instead adopts an “opaque and malleable” standard that will lead to “years of procedural wrangling [that] undermine the finality of sentences necessary to effective criminal justice.”

Justice Scalia’s brief dissent (joined by Justice Thomas) points out that he observed in his dissent in the earlier case that the Court’s “line lacks any principled basis, and will not last.” Scalia’s prophecies have often proved true, but it usually takes more than a year.

The broader lesson, which ought to be old news, is: Don’t be fooled by the liberal justices’ unprincipled and ad hoc limitations on their rulings, as those limitations will disappear at the first convenient opportunity.

This Day in Liberal Judicial Activism—May 27

by Ed Whelan

2009—Odd bedfellows, indeed! Supposed constitutional conservative Theodore B. Olson, solicitor general under President George W. Bush, betrays the legal principles that he has purported to stand for over the course of his public career as he joins forces with liberal David Boies, his adversary in Bush v. Gore, to file a lawsuit asking a federal district court in California to invent a federal constitutional right to same-sex marriage.