This Day in Liberal Judicial Activism—January 31

by Ed Whelan

2006—Upon the Senate’s confirmation of Samuel Alito’s Supreme Court nomination, Justice O’Connor’s July 2005 decision to retire takes effect. Plucked by President Reagan from the obscurity of an Arizona intermediate appellate court in 1981, O’Connor failed to live up to her early promise. Averse to any judicial principle that would limit her discretion in future cases, O’Connor was notorious for her inconsistency. Worse, in her last 15 years on the Court, she cast her vote for liberal judicial activist results in many major cases. Her jurisprudential legacy consists primarily of the infinitely malleable and subjective standards that she concocted, such as her “endorsement” standard for review of Establishment Clause claims (a standard endorsed by no other justice) and her “undue burden” standard for abortion regulations.



This Day in Liberal Judicial Activism—January 30

by Ed Whelan

2006—Senator Kerry’s Davos-led fili-bluster of Supreme Court nominee Samuel Alito fails. The Senate respects its longstanding tradition of providing an up-or-down vote on the Senate floor to Supreme Court nominees who have been reported to the full Senate.

2014—By a vote of 5-1, the Maine supreme court, purporting to reconcile two statutes, rules that a public school is required to allow a “transgender girl”—that is, a boy who identifies as a girl—to use a girls’ bathroom.

As the dissenter argues, the ruling defies “the plain language of a specific statute [that] explicitly requires segregating school bathrooms by sex.” Further, the ruling construes the Maine Human Rights Act in a way that “inescapably lead[s] to the conclusion that an individual may not be denied access to public bathrooms based upon sex.” The majority doesn’t dispute this proposition, and one member of the majority expressly agrees with it.

In other words, under the court’s logic, men in Maine may now use any public women’s bathroom, and women in Maine may now use any public men’s bathroom. (A “public” bathroom is any bathroom in a “place of public accommodation,” such as a restaurant or store.) Indeed, even labeling a bathroom with a sign designating “Men” or “Women” violates the majority’s understanding of the MHRA.

This Day in Liberal Judicial Activism—January 29

by Ed Whelan

1971—Two years before Roe v. Wade, a divided three-judge district panel rules in Doe v. Scott that the longstanding Illinois abortion statute is invalid in two respects. The majority holds, first, that the statute is unconstitutionally vague because its exception for abortions “necessary for the preservation of the woman’s life” is supposedly not sufficiently intelligible. Second, it determines that the Supreme Court’s ruling in Griswold v. Connecticut on a marital right to contraception compels the conclusion that the statute unconstitutionally invades a woman’s privacy interests. The court enjoins state officials from enforcing the statute against licensed physicians performing abortions during the first trimester in a licensed medical facility.

In an excellent dissent, senior district judge William Joseph Campbell faults the judges in the majority for “impos[ing] upon the people of Illinois their own views on this most important and controversial issue concerning public health and morals.” Judge Campbell points out that “we are presented with no actual circumstance where the vagueness question is in issue,” and he cites “numerous examples of statutes which have been held constitutional and which are not as clear and definite as this one.” He also finds “incredible” the majority’s assertion that “there is no distinction that can be made between prohibiting the use of contraceptives and prohibiting the destruction of fetal life.”     

2004—Having somehow given her permission to the NOW Legal Defense and Education Fund to dedicate a lecture series in her honor, Justice Ruth Bader Ginsburg presents opening remarks at the fourth annual Justice Ruth Bader Ginsburg Distinguished Lecture Series on Women and the Law. Never mind that the highly ideological NOW Legal Defense and Education Fund regularly files briefs in the Supreme Court (and indeed had filed a brief in a case that was pending when Ginsburg agreed to give her remarks).

Somehow many of the same folks who squawk when a conservative justice merely speaks to a conservative group that doesn’t litigate in the Supreme Court are silent at the extraordinary spectacle of a justice’s permitting a repeat litigant to name a lecture series in her honor.


This Day in Liberal Judicial Activism—January 26

by Ed Whelan

2006—From the ski slopes of Davos, Switzerland, aristocrat and billionaire-by-marriage John Kerry panders to the faux-populist sentiment of the Left by calling for a filibuster of Supreme Court nominee Samuel Alito, who, Kerry fears, might actually believe that the Constitution leaves some important issues to the people to decide through their elected representatives.         

2007—Continuing her practice of hiding behind sexist stereotypes when they suit her, Justice Ginsburg laments being “all alone on the court” a year after Justice O’Connor’s retirement, and she asserts that she and O’Connor “have certain sensitivities that our male colleagues lack.” Ginsburg garners the Weekly Standard’s sympathies.

Perhaps Ginsburg is just emoting publicly about how lonely she is. But it seems more sensible to read her comments as clamoring for the next Supreme Court appointment to be a woman or as criticizing the effect that Justice Alito’s replacement of O’Connor is having on pending cases. Neither would seem becoming of a justice.

Supreme Court Slams D.C. Circuit Judge Pillard

by Ed Whelan

On Monday, the Supreme Court unanimously ruled (in District of Columbia v. Wesby) that a D.C. Circuit panel majority wrongly affirmed an award of $680,000 in damages, plus attorney’s fees, to individuals who (as Justice Thomas’s opinion for the Court puts it) “were arrested for holding a raucous, late-night party in a house they did not have permission to enter.”

The Court’s ruling is a remarkable slapdown of D.C. Circuit judge—and highly controversial Obama appointee—Cornelia Pillard, who wrote the panel opinion. (Pillard’s opinion was joined by senior judge Harry Edwards and triggered a vigorous dissent by Judge Janice Rogers Brown.) It also reflects very negatively on another Obama appointee to the D.C. Circuit, Robert L. Wilkins, who as a district judge awarded summary judgment to the partygoers. And, indeed, even more broadly, the seven judges, all Democratic appointees, who voted to deny rehearing en banc—in the face of a lengthy dissent by Judge Brett Kavanaugh, joined by Brown and the two other Republican appointees—also fared very poorly.

Justice Thomas’s opinion for the Court* rules that Pillard was wrong to hold (1) that there was no probable cause to arrest the partygoers, and (2) that the officers were not entitled to qualified immunity.

1. On the probable-cause question, the Court lambastes the D.C. Circuit panel for “fail[ing] to follow two basic and well-established principles of law.” First, the panel majority “viewed each fact in isolation, rather than as a factor in the totality of the circumstances.” (Internal quotes omitted.) Amazingly, the panel thus entirely dismissed from its assessment any fact that was “not sufficient standing alone to create probable cause.” (The quote is from Pillard’s opinion, with Thomas’s emphasis added.) Second, the panel majority “mistakenly believed that it could dismiss outright any circumstances that were ‘susceptible of innocent explanation,’” even if they did not dictate such an explanation.

As Thomas sums it up (pp. 9-10 (citation and internal quotes omitted)), a reasonable officer could easily have concluded that there was a “substantial chance” that the partygoers had illegally entered the house:

Taken together, the condition of the house and the conduct of the partygoers allowed the officers to make several “common-sense conclusions about human behavior.” Most homeowners do not live in near-barren houses. And most homeowners do not invite people over to use their living room as a strip club, to have sex in their bedroom, to smoke marijuana inside, and to leave their floors filthy. The officers could thus infer that the partygoers knew their party was not authorized.

The partygoers’ reaction to the officers gave them further reason to believe that the partygoers knew they lacked permission to be in the house. Many scattered at the sight of the uniformed officers. Two hid themselves, one in a closet and the other in a bathroom.…

The partygoers’ answers to the officers’ questions also suggested their guilty state of mind. When the officers asked who had given them permission to be there, the partygoers gave vague and implausible responses. They could not say who had invited them…. Additionally, some of the partygoers claimed the event was a bachelor party, but no one could identify the bachelor. The officers could have disbelieved them, since people normally do not throw a bachelor party without a bachelor.

2. Pillard fares as poorly on the qualified-immunity question. The Court sets forth (pp. 13-16) the elementary and “straightforward analysis” that Pillard should have applied. The convoluted path that Pillard instead took is too confused for me to describe succinctly. (See pp. 16-17.) Suffice it to say that the Court found that the supposed rule that Pillard extracted from District of Columbia case law was not “settled law,” as it was not supported by the single decision she cited and was indeed undercut by decisions that the “officers cited … in their opening brief” but that Pillard’s opinion inexplicably “failed to mention.”

Let’s hope that the Court’s slapdown of Pillard discourages some of her colleagues from acquiescing in her poorly reasoned opinions.

*Six other justices, including Breyer and Kagan, join Thomas’s opinion in full. In a one-paragraph separate opinion, Justice Sotomayor states that she agrees on qualified immunity and would not reach the probable-cause question. In her own brief opinion, Justice Ginsburg likewise states that the officers were entitled to qualified immunity under “the current state of the Court’s precedent,” even as she questioned whether that precedent “sets the balance too heavily in favor of police unaccountability to the detriment of Fourth Amendment protection.

What a Difference a Year Makes in the Justice Department

by Carrie Severino

Since Attorney General Jeff Sessions was confirmed to head the Department of Justice (DOJ) nearly one year ago, he has been making an impact in which the rule of law has more of a place than it ever did in the Obama DOJ under Eric Holder and Loretta Lynch.

Remedying abuses of power

Start with one of the most egregious exposed abuses of power in recent years—the IRS’s targeting of conservative groups with names containing words such as “tea party” or “patriots,” which provoked two lawsuits seeking relief from the government’s conduct. In October, Sessions announced a settlement with the 469 parties that had filed suit. He did not mince words in denouncing the agency’s conduct, noting that “without question our First Amendment prohibits the federal government from treating taxpayers differently based solely on their viewpoint or ideology. There’s no excuse for this conduct.” The settlement, he added, would “make clear that the abuse of power will not be tolerated.”

Also pernicious was the Obama administration’s practice of requiring settling parties to pay third-party organizations, many of them left-of-center, that were not involved in the underlying cases or harmed by the conduct of defendants. The practice closely resembled a DOJ-imposed slush fund for liberal interest groups. Sessions asserted, “Nowhere does the Constitution grant unelected attorneys or political appointees the power to effectively appropriate and distribute funds based on their political alliances.” DOJ put an end to third-party settlements in June.

Addressing illegal immigration and respecting Congress

The previous administration’s disregard for the rule of law did not end there, and Sessions accordingly did not stop there. Having failed to secure passage of the DREAM Act, which would have legalized immigrants who had illegally crossed the border as minors, by the constitutionally prescribed legislative process—passage by the House and Senate prior to presidential approval—the Obama administration unilaterally promulgated the Deferred Action for Childhood Arrivals (DACA) through the Department of Homeland Security to accomplish the same goal, complete with work permits that were unauthorized by existing law. By September, Sessions had announced the program would be repealed. That President Trump and members of Congress are now discussing whether the content of DACA shall make its way into legislation is a sign that, as both supporters and opponents of the DREAM Act should agree, the legislative and executive branches are operating according to regular constitutional order. (The judicial branch is another matter, at least for the moment: A politically trigger-happy district judge in San Francisco just issued a brazenly activist decision holding that the administration could not repeal DACA, but the Supreme Court is likely to overturn the ruling for reasons that should be obvious from a previous Fifth Circuit ruling striking down a similar Obama-era directive that applied to illegal immigrant parents of U.S. citizens.)

The DACA repeal is part of the Trump administration’s re-prioritization of immigration enforcement, which may have contributed to the substantial drop in illegal border crossings over the last year. Sessions supplemented related efforts with a deployment of over 100 immigration judges to detention facilities in order to expedite the adjudication of immigration cases and by authorizing DOJ court filings on behalf of municipal law enforcement authorities who had to fight for their right to cooperate on immigration enforcement with the federal government.

The attorney general also cracked down on the deadly international gang MS-13, and DOJ, in conjunction with its Central American government counterparts, filed charges against 3,800 gang members.

In October, DOJ announced it would end the Obama administration’s practice of making cost-sharing reduction payments to health insurance companies in the absence of an appropriation authorized by Congress. Article I, Section 9, Clause 7 of the Constitution provides, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” Obamacare had not included such an appropriation, so the payments were illegal, as a district court held when the payments were challenged.

Sessions is also reining in the extraconstitutional proliferation of the administrative state. For years, DOJ and other federal agencies have, under the guise of issuing guidance documents, imposed de facto regulations that bind parties outside the executive branch. In November, the attorney general issued a memorandum prohibiting DOJ from issuing guidance documents that had the effect of adopting new regulatory requirements or amending the law. It restored the proper role of guidance documents as “plain-language restatements of existing legal requirements” or “non-binding advice on technical issues” that guide the interpretation of law, not instruments of coercion.

Restoring religious liberty and free speech

Besides its work to revive adherence to the Constitution’s provisions regarding the structure of the government, this DOJ has shown that its dedication to the rule of law extends to the direct protection of individual rights. Sessions issued guidance to all executive departments and agencies summarizing 20 principles of religious liberty and instructing them to “vigorously enforce Federal law’s robust protections for religious freedom.” DOJ soon followed by settling lawsuits with 87 plaintiffs, most of them religious colleges, hospitals, charities, and other organizations that challenged the Obama administration’s contraception mandate, yet another sweeping agency-enacted rule. The move reflected overdue compliance with the Religious Freedom Restoration Act. Sessions again minced no words in characterizing the burdens on the plaintiffs: “Their claims were just. They had been improperly constricted in their right to freely exercise their religious beliefs.” (The rule itself was changed by the Department of Health and Human Services to allow employers and insurers to decline to provide birth control based upon their sincerely held religious beliefs or moral convictions.)

The current DOJ also has taken positions in litigation not involving the federal government that aggressively advance First Amendment rights and that would have been unthinkable a year ago. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, one of the most watched cases before the Supreme Court this term, the solicitor general filed a brief on behalf of the baker who challenged a Colorado law that compelled him to create a same-sex wedding cake contrary to his religious beliefs. Another brief filed before the Court in Janus v. AFSCME argues that public sector workers cannot be forced to pay for a union’s collective bargaining activities, which reversed the position of the previous administration in a similar case before the Court in 2016. In two lower court cases, Sessions’ DOJ filed statements of interest on behalf of students challenging campus speech codes.

Reaching civil rights milestones

As a contrast to Eric Holder’s 2013 suit to block Louisiana’s school voucher program, which primarily aided the state’s poorest minority children who were trapped in substandard schools, consider how Sessions’ fidelity to existing law has enabled him to pursue new milestones in advancing civil rights. DOJ is currently reviewing a complaint from over 60 organizations accusing Harvard University of discriminating against Asian-American applicants. Months earlier, it secured a 49-year sentence in the first case prosecuted under the Hate Crimes Prevention Act for the murder of a victim due to gender identity and deployed an attorney to assist in a state prosecution following the murder of a transgender student.

Sessions’ DOJ filed hate crimes indictments in other cases involving several culprits who allegedly lured gay men with a dating app in order to attack them and an accused arsonist who set fire to a mosque. Even the New York Times admitted that Sessions, who denounced the car attack in Charlottesville in August as “evil” and meeting the “definition of domestic terrorism,” had emerged as a “forceful figure in condemning Charlottesville violence.” Perhaps that is as close to an apology as he will get for the many scurrilous attacks against him, including a recycled 30-year-old smear campaign, from the moment he was nominated.

Restoring law and order

Beyond such violence and the depredations of MS-13, the attorney general has given extra attention to other proliferating areas of criminal activity, with grant funding dedicated to placing over 800 additional full-time law enforcement officers across the country and enhancement of the Project Safe Neighborhoods program. After Sessions directed prosecutors to focus on reducing violent crime, there occurred a 23% increase in the number of defendants charged with illegal possession of firearms. On the human trafficking front, prosecutors secured convictions of eight members of an international criminal organization for forced prostitution.

The country’s opioid epidemic, which has become a national crisis, is another priority. Sessions launched a new unit of DOJ, the Opioid Fraud and Abuse Detection Unit, to implement a crackdown that helped bring about the largest enforcement action ever undertaken, with 412 defendants charged for illegally prescribing or distributing dangerous narcotics and AlphaBay, the largest internet marketplace for criminal opioids, seized.

In May, the attorney general reversed Holder’s policy instructing prosecutors not to charge certain individuals with drug offenses that would trigger lengthy mandatory minimum sentences. Sessions still allowed prosecutors to seek approval to make exceptions in order to avoid injustice, but by untying their hands to charge defendants with the most serious, readily provable offenses, he gave them an effective tool to improve enforcement that would diminish a growing national problem in accordance with the aims expressed by Congress in the criminal code.

Earlier this month, Sessions rescinded the prior administration’s directive essentially refusing to enforce federal marijuana laws in states that had legalized the drug. This was met by a torrent of criticism in the press. Even putting aside the dangers of increasingly potent pot and the harm legalizing states have incurred on neighboring states, the level of opposition to this recent development is mystifying. Far from prioritizing marijuana prosecutions, the DOJ directive merely leaves it to prosecutors to use their judgment in cases where state law conflicts with federal law instead of tying their hands with a blanket prohibition on enforcing federal law. Does it occur to these critics that calling on Congress to change the law would be a more appropriate response than criticizing those whose constitutional responsibility is to execute the law?

Like the rest of Sessions’ initiatives as attorney general, this recent development flows from his commitment to the rule of law, whether it diminishes unilateral executive action in deference to the elected officials who bear lawmaking responsibility under the Constitution or vigorously enforces laws duly enacted by constitutional process. What a welcome change from the previous DOJ.

This Day in Liberal Judicial Activism—January 24

by Ed Whelan

1990—President George H.W. Bush nominates New Hampshire supreme court justice David Hackett Souter to a seat on the First Circuit. In a tragic blunder, less than three months after Souter accepts his First Circuit appointment, President Bush nominates him to the Supreme Court vacancy resulting from Justice Brennan’s retirement. Deploying his full arsenal of clichés, Teddy Kennedy rails against Souter’s Supreme Court nomination. His efforts, alas, prove unsuccessful.

Judicial Nominations Update

by Carrie Severino
Judicial Nominations Update

Senate Judiciary Committee Chairman Chuck Grassley announced that he intends to hold a hearing tomorrow morning for Michael Brennan, President Trump’s nominee to the U.S. Court of Appeals for the Seventh Circuit. Last November, Chairman Grassley made it clear through a series of floor speeches and op-eds that he won’t allow Senators to use the blue slip courtesy as a tool to obstruct the nominations process for political or ideological reasons, stating then: “A senator can’t use a blue slip to block a nominee because it’s not the person the senator would’ve picked. The president gets to nominate judges.”

Additionally, Senate Majority Leader Mitch McConnell held cloture and confirmation votes for four of President Trump’s federal district court nominees during the week of January 8th, bringing the total number of federal judges confirmed during his administration to 23. The Senate Minority continues to persist in requiring cloture votes for each and every judicial nominee, reaching new heights in its obstructionist efforts.

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

Number of current and known future vacancies: 172

Courts of Appeals: 24

District/Specialty Courts*: 148

Number of pending nominees for current and known future vacancies: 44

Courts of Appeals: 4

District/Specialty Courts: 40

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

Nominees Awaiting Floor Votes: 25

Courts of Appeals: 3

District/Specialty Courts: 22

Nominees Confirmed by the Senate: 23

Supreme Court: 1

Courts of Appeals: 12

District/Specialty Courts: 10

This Day in Liberal Judicial Activism—January 23

by Ed Whelan

1983—After telling his girlfriend that “we’re going to kill Charles,” William Wayne Thompson, age 15, and three older friends brutally murder his former brother-in-law, Charles Keene. After they beat Keene, Thompson shoots him in the head, cuts his throat and chest, attaches a chain and blocks to his body, and throws the corpse into a river “so the fish could eat his body.”

Some five years later, in Thompson v. Oklahoma, a four-Justice plurality (opinion by Justice Stevens, joined by Justices Brennan, Marshall, and Blackmun) imagines “evolving standards of decency” under the Eighth Amendment that, as Justice Scalia’s dissent aptly summarizes it, forbid the determination that any “criminal so much as one day under 16, after individuated consideration of his circumstances, including the overcoming of a presumption that he should not be tried as an adult, can possibly be deemed mature and responsible enough to be punished with death for any crime.” (As Scalia points out in a later dissent, the same folks who think that minors can’t possibly be mature enough to be held fully responsible for murders they commit insist that juveniles are mature enough to get an abortion without parental consent, but “[w]hether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.”)

1992—In Hodges v. State, the Florida supreme court reviews the death sentence of a man who, on the morning that he was scheduled for a hearing on a charge of indecent exposure, shot to death the 20-year-old female clerk who had complained of his conduct. Chief justice Rosemary Barkett, in solo dissent from the court’s affirmance of the death sentence, opines that the two statutorily defined aggravating factors on which the death sentence had been based—witness elimination and a killing that was cold, calculated, and premeditated—were “so intertwined that they should be considered as one” and votes to vacate the death sentence. Her dissent makes no effort to distinguish her court’s own precedent that permitted aggravators to be counted separately where they relate to “separate analytical concepts.”

Despite—or, rather, because of—her stunningly terrible record as a judge, President Clinton nominates Barkett to the Eleventh Circuit in 1993, and, with overwhelming support from Senate Democrats (an “outstanding jurist,” quoth Teddy Kennedy), she is confirmed and appointed in 1994.

Scheduled Events

by Ed Whelan

I have a busy schedule of engagements this winter and spring. Most relate to Scalia Speaks (the highly acclaimed, and New York Times bestselling, collection of Justice Scalia’s speeches that I’ve co-edited).

I’m posting my current schedule here for two reasons: first, to answer the many inquiries I’m receiving about upcoming Scalia Speaks events; and second, in case you’re interested in arranging an event with me on Scalia Speaks, judicial nominations, or any other topic, to invite you to explore working that into my existing out-of-town trips.

1/26 BYU/Federalist Society

*new* 1/30 Utah lawyers chapter/Federalist Society (breakfast–Scalia Speaks and judicial nominations)

1/30 University of Utah/Federalist Society

2/2 Charlotte/Federalist Society (Scalia Speaks and judicial nominations)

2/2 Belmont Abbey College

2/5 Capitol Hill Federalist Society (judicial nominations)

2/6 GW law school

2/7 Villanova/Federalist Society

2/7 National Constitution Center, Philadelphia

2/13 Legatus Orange County

2/14 Los Angeles/Federalist Society

2/15 Orange County/Federalist Society

2/16 San Diego/Federalist Society

2/20 Atlanta/Federalist Society

3/7 University of Dallas

3/8 SMU/Federalist Society

3/10 Federalist Society student symposium, Georgetown (booksigning only)

3/20 Vanderbilt/Federalist Society

3/20 Nashville/Federalist Society

3/21 Houston/Federalist Society

3/21 Houston/St. Thomas More Society

3/28 Cincinnati/Federalist Society

3/29 Columbus/Federalist Society

4/5 Akron/Federalist Society

4/5 Case Western/Federalist Society

4/13 Baton Rouge/Federalist Society (judicial nominations)

4/14 New Orleans (American Academy of Appellate Lawyers – judicial nominations)

4/24 Kansas City/Federalist Society

4/25 University of Missouri/Federalist Society

*new* 4/26 St. Louis/Federalist Society

5/4 Supreme Court Historical Society

6/7 Denver/Federalist Society

6/7 Colorado Springs/Mountain States Legal Foundation

Solicitor General’s Perplexing Brief in Abortion Compelled-Speech Case

by Ed Whelan

In National Institute of Family and Life Advocates v. Becerra—which David French calls the “dangerous Supreme Court case nobody is talking about”—the Supreme Court will decide whether two provisions of a recently enacted California law violate the Free Speech rights of pregnancy centers that counsel against abortion.

First, the so-called Licensed Notice provision requires state-licensed medical facilities that provide pregnancy-related services* to disseminate this message to their clients:

California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number].

As David puts it:

The [provision] requires pro-life crisis-pregnancy centers to prominently place a notice informing clients that California offers low-cost and even free abortions to women who qualify and providing them a phone number that grants quick access to abortion clinics.

In other words, California is requiring pro-life professionals — people who’ve dedicated their lives to protecting the unborn by offering pregnant mothers alternatives to abortion — to advertise state-sponsored abortions. California is making this demand even though it has ample opportunity to advertise state services without forcing pro-life citizens to do so. The state can rent billboard space on the very streets where crisis-pregnancy centers are located. It can hand out leaflets on the sidewalk. It can advertise on television and the radio. It can advertise on the Internet or social media. But rather than using its own voice, it is co-opting the voices of its pro-life citizens, forcing them to join its pro-abortion crusade.

Second, under the Unlicensed Notice provision, a facility that is not licensed by the state (and has no licensed medical provider supervising its operations) and that provides pregnancy-related services must post at its entrance, in its client waiting area, and in all of its advertising materials this statement:

This facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.

This sign must be posted both in facilities that might plausibly be mistaken for medical offices (such as those that offer obstetric ultrasounds) and in those that would not (e.g., “pregnancy options counseling” in a church basement).

The Solicitor General has filed an amicus brief that argues that the Licensed Notice violates the Free Speech rights of pro-life pregnancy centers but that the Unlicensed Notice is okay. I think that the SG’s brief is clearly right on its conclusion on the Licensed Notice. But as David explains in this second piece of his, the brief (pp. 24-31) reaches this conclusion via a path (“heightened scrutiny” rather than strict scrutiny) that would give the government greater power to control “the non-commercial speech of nonprofit advocacy organizations that are in the very business of persuasion.”

Adding to David’s critique of the SG’s brief on the Licensed Notice, I’ll focus here on a similar and arguably worse problem in how the brief addresses the Unlicensed Notice.

On the Unlicensed Notice, the SG’s brief (pp. 13-15) invokes “a more deferential standard” of review that applies “to laws that require providers of commercial services in the marketplace to disclose factual, uncontroversial information about their own services.” (Emphasis added.) Under this “Zauderer standard,” required disclosures that are “uncontroversial” are permissible so long as they are not “unjustified” or “unduly burdensome.”

The SG’s brief (pp. 20-24) rejects a “categorical rule” that the Zauderer standard for speech related to commercial services doesn’t apply “when professionals offer their services without charge.” Such a rule would indeed seem overly broad. But it’s one thing to hold that a provider of commercial services is subject to the Zauderer standard even when that provider (to use the SG’s examples) “offers free samples as a promotion” or “offers free consultations to attract customers.” It’s something very different to maintain that a pregnancy center that provides all of its services for free is still somehow deemed to be providing “commercial services” and can have its speech regulated as “commercial speech.” Yet that is what the SG’s brief oddly does.

To put the point another way: The proposition that the Zauderer standard applies to some providers of free services—that there is, in short, no “categorical rule” to the contrary—does not mean that it applies to all such providers. The SG’s brief recognizes as much in its discussion (pp. 22-23) of NAACP v. Button (1963) and In re Primus (1978), both of which applied strict scrutiny to prohibitions that prevented civil-rights litigation organizations from soliciting pro bono clients. In a strange passage, the SG’s brief, quoting Primus, tries to cabin those two rulings on the ground that the services the organizations provided involved “expressive and associational conduct at the core of the First Amendment’s protective ambit.” But the brief never stops to address why the entirely non-commercial services provided by a pro-life pregnancy center don’t also involve core First Amendment speech.

It’s possible (I haven’t studied the matter closely) that the Unlicensed Notice might be permissible even under a higher standard of scrutiny. The larger danger of the approach taken by the SG’s brief is that it would seem to invite the extraordinary conclusion that all of the speech of pro-life pregnancy centers is commercial speech and therefore easily regulable (subject, in most instances, to only very deferential review) by every state and city in the country.

That is a conclusion that no court has reached. In fact, the Ninth Circuit panel that ruled against the pregnancy centers in this case dismissed this argument in a footnote as “unpersuasive.” It is perplexing to see the United States adopt an argument that such a liberal panel did not even consider worthy of discussion in the body of its opinion.

* In an effort to be succinct, I’ve omitted, both here and in my description of the Unlicensed Notice provision, some additional criteria that are, I think, irrelevant to the points I make in this post. The primary statutory provisions are here and here.

Utah Events on Scalia Speaks

by Ed Whelan

I’ll be at BYU law school this Friday, January 26, and at the University of Utah law school on Tuesday, January 30, for lunchtime events on Scalia Speaks sponsored by the law schools’ Federalist Society chapters. (And, yes, I will use the intervening days to enjoy Utah’s wonderful ski slopes with my son.)

Update: I’ll also have a breakfast event on January 30 with the Utah lawyers chapter of the Federalist Society. I’ll discuss both Scalia Speaks and judicial nominations under President Trump.

This Day in Liberal Judicial Activism—January 22

by Ed Whelan

1973—For the second time in American history, the Supreme Court denies American citizens the authority to protect the basic rights of an entire class of human beings. In Roe v. Wade—the Dred Scott ruling of our age—Justice Blackmun’s majority opinion feigns not to “resolve the [purportedly] difficult question of when life begins,” but in fact rules illegitimate any legislative determination that unborn human beings are deserving of legal protection from abortion. Roe and Doe v. Bolton (decided the same day) impose on all Americans a radical regime of essentially unrestricted abortion throughout pregnancy, all the way (under the predominant reading of Doe) until birth.

Despite scathing criticism, including from supporters of abortion (see point 2 here), Roe’s lawless power grab continues to roil American politics by preventing Americans from working together, through an ongoing process of persuasion, to establish and revise abortion policies.

1996—Federal district judge Harold Baer rules (in United States v. Bayless) that New York City police officers did not have reasonable suspicion that criminal activity was afoot when they observed a car with a Michigan license plate moving slowly in the pre-dawn hours in a neighborhood known for drug trafficking, saw the car double-park, observed four males cross the street in single file and, without speaking with the driver, deposit duffle bags in the trunk of the car, and saw the men scatter when they noticed that the officers were observing them.

Dismissing this last fact, Baer opines that publicity about the prosecution of a corrupt police officer in that neighborhood eliminated any inference that the men were engaged in evasive conduct. Indeed, “had the men not run when the cops began to stare at them, it would have been unusual.” Finding that the investigatory stop by the police violated the Fourth Amendment, Baer orders suppression of the evidence of the 34 kilograms of cocaine and two kilograms of heroin found in the duffle bags in the trunk.

Amidst the ensuing public outcry over Baer’s ruling—including comments by President Clinton that he might try to get his own appointee to resign—Baer reverses himself two months later and laments the “hyperbole (dicta) in my initial decision [that] regretfully may have demeaned the law-abiding men and women who make Washington Heights their home and the vast majority of the dedicated men and women in blue who patrol the streets of our great City.”

This Day in Liberal Judicial Activism—January 21

by Ed Whelan

2014—Arch-activist Stephen Reinhardt sets the stage for the judicial invalidation of state marriage laws throughout the Ninth Circuit. Writing for a liberal panel, Reinhardt rules in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Reinhardt construes the Supreme Court’s recent decision in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles.

Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.

In fact, the Windsor majority’s reasoning was directed at the specifics of the Defense of Marriage Act, so it was unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.

AG Sessions Resists the Resistance

by Carrie Severino

The Supreme Court agreed yesterday to hear a challenge to the third iteration of the Trump administration’s travel ban. It had been struck down by lower courts—a Hawaii district court and affirming Ninth Circuit—that seemed to place their hostility to the president above the law, which grants the chief executive clear discretion on such matters relating to immigration and national security. Back in February 2017, after the Ninth Circuit struck down the first version of the travel ban, Eric Posner, a liberal critic of both President Trump and his policy, recognized that the courts may be creating a “‘Trump exception’ to settled law on presidential powers,” holding the current president to a different standard from that of his predecessors. He recognized this aberration from the law could come back to bite us.

One year later, it is clear that judicial resistance to this administration is alarmingly broad and almost entirely unmoored from the law. In an editorial this morning, the Wall Street Journal reports that “there have been 19 nationwide injunctions against Administration initiatives ranging from sanctuary cities to new rules on contraceptive coverage. Many of these rulings reject longstanding legal understandings or refer to Mr. Trump’s campaign statements rather than the language of the regulation.”

As a Senator and now as Attorney General, Jeff Sessions has been a fierce advocate for the rule of law and separation of powers, so it was not surprising that he directed his Justice Department to fight this new left-wing legal resistance. His office took the significant step of asking the Supreme Court to bypass the Ninth Circuit and overturn a pervasively political district court opinion that held untenably that Trump lacked authority to end the Deferred Action for Childhood Arrivals program, and the Court’s decision to grant could signal that a majority of the justices are sympathetic to his concerns.

It is highly disconcerting that so many judges have aligned with this new political “resistance,” allowing their personal views about President Trump to overcome their independence and threaten our Constitution’s separation of powers. Attorney General Sessions deserves kudos for recognizing that threat, and for directing an extraordinary team of lawyers to resist the resistance.

This Day in Liberal Judicial Activism—January 20

by Ed Whelan

1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.

This Day in Liberal Judicial Activism—January 19

by Ed Whelan

1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.

1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

This Day in Liberal Judicial Activism—January 17

by Ed Whelan

2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.

2014——Retired Sixth Circuit judge Boyce F. Martin Jr.’s career of zany lawlessness ends in rank public disgrace, as the Judicial Conference of the United States denies his request to keep confidential the results of a Judicial Council investigation into up to $138,500 of “questionable travel reimbursement expenses.”

By suddenly retiring in May 2013, Martin succeeded in obtaining a dismissal of the misconduct proceedings against him. But the Judicial Council decided that the public interest required disclosure of the charges against Martin.

Further, in an action that one federal judicial expert called “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.

2014—The judicial butchering of the Constitution continues. In Kosilek v. Spencer, a divided panel of the First Circuit affirms a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name has been changed to Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”

Eleven months later, the en banc First Circuit will overturn the panel ruling by a 3-2 vote.

This Day in Liberal Judicial Activism—January 16

by Ed Whelan

2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.

When various religious groups sponsored an advertising campaign offering “healing for homosexuals,” the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

This Day in Liberal Judicial Activism—January 14

by Ed Whelan

1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds.