This Day in Liberal Judicial Activism—May 23

by Ed Whelan

1957—Three Cleveland police officers arrive at Dolly Mapp’s home seeking a suspect wanted in connection with a recent bombing. After Mapp refuses to admit them, the police forcibly enter and search the home and discover obscene materials. Mapp is convicted of possession of these materials. The Ohio supreme court rules that the search of the home was unlawful but that Mapp’s conviction resting on evidence resulting from the search is valid.

In Mapp v. Ohio (1961), the Supreme Court, by a vote of 5 to 3, overrules its own 1949 precedent that held that the Constitution does not require that evidence obtained in violation of the Constitution be excluded from criminal trials in state court. The Court instead applies to state criminal trials the exclusionary rule that it first imposed on federal criminal trials in 1914. In dissent, Justice Harlan (joined by Justices Frankfurter and Whittaker) concludes his analysis with this observation: “I regret that I find so unwise in principle and so inexpedient in policy a decision motivated by the high purpose of increasing respect for Constitutional rights. But in the last analysis I think this Court can increase respect for the Constitution only if it rigidly respects the limitations which the Constitution places upon it, and respects as well the principles inherent in its own processes. In the present case I think we exceed both, and that our voice becomes only a voice of power, not of reason.”

2011—In Brown v. Plata, the Supreme Court, by a 5-4 vote, affirms what Justice Scalia, in dissent, calls “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals.” Scalia condemns the lower-court proceedings as a “judicial travesty.” The injunction “violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.” In his own dissent, Justice Alito similarly lambastes the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faults the Court majority for “gambling with the safety of the people of California.”

In the aftermath of the Court’s decision, the district court will repeatedly be forced to extend its deadline for compliance with its injunction, all the way until February 2016.

This Day in Liberal Judicial Activism—May 22

by Ed Whelan

1991—Federal district judge H. Lee Sarokin delivers a This Day classic. The backdrop: Richard R. Kreimer, a homeless man, camped out in the Morristown, New Jersey, public 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. The library then adopted written policies setting forth minimal standards of patron behavior. After Kreimer was expelled multiple times for violating the policies, he sued.

Poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” Judge Sarokin rules 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. On appeal, the Third Circuit will unanimously reverse Judge Sarokin on every ruling.

By in effect concocting a right for Kreimer to disrupt a public library, Sarokin deprived other citizens of the right to use a library in peace. Not incidentally, Sarokin was said to be very finicky about the conditions of his court’s library. (For a fuller discussion of this This Day classic, see Part I here.)

With the ardent support of Senate Democrats like Patrick Leahy (“a judge of proven competence, temperament, and fairness,” “an excellent choice”), President Clinton will appoint Sarokin to the Third Circuit in 1994.

2015—First Amendment speech rights receive very uneven protection from progressive judges, depending on what viewpoint is being expressed. So it is that Second Circuit judges Rosemary S. Pooler and Peter W. Hall rule (in Children First Foundation, Inc. v. Fiala) that the First Amendment allows New York’s Department of Motor Vehicles to exclude an adoption organization’s proposed “Choose Life” plate from its “custom” license plate program pursuant to—get this—the DMV’s statutory authority to reject license plates that are “patently offensive.”

This Day in Liberal Judicial Activism—May 20

by Ed Whelan

1996—What’s one way to deal with unhelpful precedent? Just ignore it entirely, as Justice Kennedy’s majority opinion in Romer v. Evans does.

In 1986 the Supreme Court ruled in Bowers v. Hardwick that it is constitutionally permissible for states to make homosexual conduct criminal. A decade later, the Court in Romer addresses the constitutionality of Colorado’s Amendment 2, a state constitutional amendment (adopted by statewide referendum) that prohibited all levels of state government from bestowing a protected status on homosexual orientation, conduct, practices, and relationships. Without ever mentioning Bowers, Justice Kennedy (joined by five of his colleagues) declares that Amendment 2 reflects an improper “animus” and therefore violates the Equal Protection Clause. (Seven years later, in his opinion in Lawrence v. Texas overruling Bowers, Kennedy cites his Romer ruling as having seriously eroded Bowers.)

Justice Scalia, in dissent (joined by Chief Justice Rehnquist and Justice Thomas), responds:

“In holding that homosexuality cannot be singled out for disfavorable treatment, the Court contradicts a decision, unchallenged here, pronounced only 10 years ago and places the prestige of this institution behind the proposition that opposition to homosexuality is as reprehensible as racial or religious bias. Whether it is or not is precisely the cultural debate that gave rise to the Colorado constitutional amendment (and to the preferential laws against which the amendment was directed). Since the Constitution of the United States says nothing about this subject, it is left to be resolved by normal democratic means, including the democratic adoption of provisions in state constitutions. This Court has no business imposing upon all Americans the resolution favored by the elite class from which the Members of this institution are selected, pronouncing that ‘animosity’ toward homosexuality is evil.”

2008—A Ninth Circuit panel rules (in Witt v. Department of the Air Force) that the Supreme Court’s 2003 decision in Lawrence v. Texas requires that the “Don’t Ask, Don’t Tell” statute governing homosexuals in the military “must satisfy an intermediate level of scrutiny under substantive due process.” Despite relevant Supreme Court precedent, the panel somehow fails even to consider whether the military context calls for a lower standard of scrutiny.

More evidence of the panel’s sloppiness is provided by its assertion that the Court in Lawrence “did not mention or apply the post-Bowers [v. Hardwick] case of Romer v. Evans, 517 U.S. 620 (1996), in which the Court applied rational basis review to a law concerning homosexuals.” In fact, Justice Kennedy’s majority opinion spends two full paragraphs presenting Romer as the second of two major post-Bowers cases that supposedly cast “even more doubt” on the holding in Bowers, and it later summarizes its conclusion that Bowers had “sustained serious erosion” from Romer.

2014—In a stark display of the Jacobin temperament that underlies his opinion striking down Pennsylvania’s marriage laws, federal district judge John E. Jones III (a Bush 43 appointee) declares that “it is time to discard [the laws] into the ash heap of history.”

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

This Day in Liberal Judicial Activism—May 19

by Ed Whelan

2014—When Oregon officials irresponsibly refuse to defend their own marriage laws, the greatest relief that ought to be awarded is a default judgment in favor of the named plaintiffs. But federal district judge Michael J. McShane instead issues a lengthy opinion, replete with extravagant prose (“Let us look less to the sky to see what might fall; rather, let us look to each other…and rise” (ellipsis in original)), in which he rules that Oregon’s laws defining marriage as the union of a man and a woman flunks rational-basis review. Further, he orders Oregon officials not to enforce those laws against anyone seeking to marry a person of the same sex.

This Day in Liberal Judicial Activism—May 18

by Ed Whelan

1991—The New York Times and the Washington Post report that in 1990 Charles E. Smith, a wealthy real-estate developer, made gifts to Justice William J. Brennan Jr. in the amount of $140,000. Of that total amount, $80,000 was given before Justice Brennan’s retirement in July 1990. According to Brennan, Smith was a “dear friend” and “made these gifts in recognition of my public service.”

The Times and the Post immediately launch investigations into such matters as whether Smith had ideological affinity for Brennan’s liberal judicial activism and was rewarding that activism and whether and when Smith had made any previous promises concerning the gifts. Just kidding: There is no sign that follow-up investigations of any sort ever took place.

2011— More than thirty years after the end of his presidential term, Jimmy Carter’s sorry legacy of appointments to the Ninth Circuit lives on. Judge Stephen Reinhardt, joined by two other Carter appointees, rules that DaimlerChrysler, a German corporation, is subject to personal jurisdiction in California in a case in which Argentinian residents allege that an Argentinian subsidiary of DaimlerChrysler collaborated with Argentinian security forces to commit atrocities in Argentina during Argentina’s 1976-1983 “Dirty War.”

In January 2014, the Supreme Court will unanimously reverse Reinhardt. In her opinion for the Court, Justice Ginsburg will provide a primer on personal jurisdiction and condemn Reinhardt’s “exorbitant” holding.

William Watkins Jr.’s Response to my Post on Trinity Lutheran

by Michael Stokes Paulsen

Last week, I posted a highly critical response to William Watkins Jr.’s Wall Street Journal op-ed on the Trinity Lutheran Church case.  Mr. Watkins has posted a reply to my critique here, which I bring to interested readers’ attention

This Day in Liberal Judicial Activism—May 17

by Ed Whelan

1954—In Brown v. Board of Education, a unanimous Supreme Court abandons available originalist justifications for its ruling that state-segregated schools violate the Equal Protection Clause—justifications that would have been far weightier, and commanded far more public respect, than its own makeshift reliance on contemporaneous psychological research of dubious relevance. Contrary to conventional understanding, the Court declines to revisit its notorious 1896 ruling in Plessy v. Ferguson and instead limits itself to the question whether the separate-but-equal rule of Plessy “should be held inapplicable to public education.”

1993—Tennessee chief justice Lyle Reid and justice Martha Craig Daughtrey dispute the ruling by the Tennessee supreme court in State v. Marshall that obscenity is not protected speech under the Tennessee constitution. The majority’s ruling, they extravagantly contend, hands “the right most essential to personal dignity and democratic government, the freedom of expression, … into the willing grasp of the censor.”

Daughtrey will be appointed by President Clinton to the Sixth Circuit later in 1993.

2013—Crackheaded, indeed. In United States v. Blewett, Sixth Circuit judge Gilbert S. Merritt Jr., joined by fellow Carter appointee Boyce F. Martin Jr., holds that the more lenient sentences of the Fair Sentencing Act of 2010 apply to crack-cocaine offenders who were sentenced before the Act’s effective date.

Merritt purports to recognize that “there is no equal protection violation without discriminatory intent,” and he acknowledges that when the 100-to-1 crack statute was adopted in 1986, “there was no intent or design to discriminate on a racial basis.” But he contends that the knowledge gained since 1986 about the disparateimpact of the original minimums on blacks means that continued enforcement of those sentences is intentional discrimination.

Under Merritt’s illogic, once it becomes known that a law has a (constitutionally permissible) racially disparate impact, the maintenance of that law would suddenly be transformed into intentional discrimination. As Clinton appointee Ronald Lee Gilman observes in dissent, there is no support for such a proposition.

Some six months later, by a disturbingly close 10-7 vote, the en banc Sixth Circuit will reject Merritt’s reasoning. As Judge Jeffrey Sutton nicely sums it up in his majority opinion, the legal question is simple:

“Consistent with a 142-year-old congressional presumption against applying reductions in criminal penalties to those already sentenced, 1 U.S.C. § 109, consistent with the views of all nine Justices and all of the litigants in Dorsey v. United States (2012), consistent with the decisions of every other court of appeals in the country, and consistent with dozens of our own decisions, we hold that the Act does not retroactively undo final sentences.”

Federalist Society’s Executive Branch Review Conference

by Ed Whelan

I’m pleased to be taking part, along with some thirty or so professors, lawyers, and policy wonks, in the Federalist Society’s fifth annual Executive Branch Review Conference, being held all day tomorrow (Wednesday) here in D.C. The conference begins with an address by Senator Mike Lee and closes with a speech by OMB head Mick Mulvaney. In between are some seven panels on various aspects of the relationship between the executive branch and Congress. My panel is on “Judicial Deference and Congressional Action.”

Full information is available here.  

This Day in Liberal Judicial Activism—May 16

by Ed Whelan

2011—In United States v. C.R., senior federal district judge Jack B. Weinstein issues a 349-page opinion (with an additional 50+ pages of appendices) holding that the Eighth Amendment prohibits applying the statutory minimum five-year term of imprisonment to a youthful defendant who pleaded guilty to one count of distributing child pornography. Here’s how criminal-procedure expert Orin Kerr prefaces his discussion of the ruling:

“There are a lot of debates about ‘judicial activism’ in which some question whether the term has real meaning. Fortunately, there is always Jack Weinstein, whose activism is so over-the-top that it easily quiets the debates.”

Some two years later, a Second Circuit panel will unanimously reverse Weinstein’s ruling.

Setting the Senate’s ‘Blue Slip’ Policy

by Ed Whelan

As chairman of the Senate Judiciary Committee under a new president, Senator Chuck Grassley has a special opportunity to set a sensible “blue slip” policy for President Trump’s judicial nominees. (The “blue slip” refers to the piece of paper that the chairman of the committee sends to a senator informing him that the president has made a nomination to a position in his home state and inviting him to object or offer support. I wrote more extensively about it in my 2006 Weekly Standard article titled “Droit du Sénateur.”)

I respectfully suggest that Chairman Grassley should restore what Senator Orrin Hatch, his predecessor as chairman (from 1995 through 2005), called the “Kennedy-Biden-Hatch blue-slip policy.” Under that policy, the return of a negative blue slip on a nomination would be given “substantial weight,” but a committee hearing and vote on the nomination would proceed.

(The Left attacked Hatch for apparently giving greater weight to negative blue slips, or at least to negative blue slips from both home-state senators, when Bill Clinton was president. But as I observed in the article linked above, “Especially when it is acceptable to return a negative blue slip on ideological grounds, it is elementary common sense, not hypocrisy, for a committee chairman to distinguish between granting his own majority colleagues the power to block a nominee of a president of the opposite party, on the one hand, and granting a member of the minority the ability to block a nominee of a president who is of the same party as the committee chairman.”)

As a second-best alternative, Grassley could sensibly differentiate—as he has signaled he might well do—between district-court and appellate-court nominees and give home-state senators more say over district-court nominees. After all, the caseloads of district judges clearly relate to the state in which the judge will sit. By contrast, the caseloads of appellate judges are drawn from the various states in a single circuit, and any particular appellate judge takes part equally (pro rata) in the cases arising from the district courts across those various states. If Grassley takes this differentiated approach, it is important that he make clear that a negative blue slip on an appellate nomination will receive no more than “substantial weight.”

What would not be sensible—what would in fact be severely damaging to the prospect of restoring the courts—would be for Grassley to give each home-state senator, Democrat or Republican, an effective veto over President Trump’s district-court and appellate-court nominations to seats in the senator’s state.

This Day in Liberal Judicial Activism—May 15

by Ed Whelan

2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.

Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism).

This Day in Liberal Judicial Activism—May 14

by Ed Whelan

1970—President Richard M. Nixon, in one of the misdeeds for which he most deserves infamy, appoints Harry A. Blackmun to the Supreme Court. Blackmun, a boyhood friend of Chief Justice Warren Burger, had served on the Eighth Circuit since 1959. Before that, he had been in-house counsel for the Mayo Clinic. His appreciation for the outstanding work done by the fine doctors at the Mayo Clinic is said to have led him to regret that he himself did not become a doctor. Those with a proper appreciation of Blackmun’s Supreme Court decisionmaking—including, but by no means limited to, his notorious opinion in Roe v. Wade (see This Day for January 22)—might fairly observe that the medical profession’s loss was the nation’s…loss.

2009—Ramona Ripston, Executive Director of the ACLU Foundation of Southern California and (per its website) the individual “responsible for all phases of the organization’s programs, including litigation,” takes part in a confidential strategy meeting with counsel planning to file a federal lawsuit against Proposition 8. After counsel files the complaint in Perry v. Schwarzenegger, Ripston’s organization will file pre-trial and post-trial amicus briefs in support of plaintiffs, and Ripston will publicly “rejoice” over Judge Vaughn Walker’s August 2010 ruling against Proposition 8.

But when Ripston’s husband, arch-activist Stephen Reinhardt, is assigned to the Ninth Circuit panel charged with reviewing Walker’s ruling, Reinhardt somehow will decline to recuse himself from the case.

2017—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.”

In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy Scouts and the Girl Scouts for perpetuating stereotyped sex roles; and urged that prisons be co-ed rather than single sex. (See relevant excerpts from the report.)

This Day in Liberal Judicial Activism—May 13

by Ed Whelan

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.


“A Big Fix: Should We Amend Our Constitution?”

by Michael Stokes Paulsen

I have the pleasure of participating today (in just a few hours) in a conference at Stanford Law School, sponsored by the Stanford Constitutional Law Center – headed by my old friend, the illustrious Professor and former Tenth Circuit Court of Appeals Judge Michael W. McConnell. 

The conference’s theme is “A Big Fix: Should We Amend Our Constitution?”  Conference attendees were invited to propose big-deal proposed amendments to the U.S. Constitution.  Change something in a major way!  Correct some serious misfire in the U.S. Constitution!  Correct a long-simmering problem!  Repair something you think the framers got badly wrong!  Go wild!  Indulge your fantasies!  Fix the Constitution!

The conference features a great cast of characters, including some of the leading constitutional thinkers of the nation’s law schools: Mary Anne Case, Jane Schacter, Randy Barnett, Laura Donohue, Sandy Levinson, Amy Wax, Michael Greve, Jamal Greene, Richard Pildes, Michael Ramsey, Sai Prakash, Elizabeth Foley, Russ Feingold, George Thomas, Will Howell, Zephyr Teachout, Roman Buhler, Ruth Wedgwood, along with fellows of the Stanford Constitutional Law Center and several Stanford Law School students. 

We’ll see if we change the world over the weekend.  Who knows?  Maybe we’ll convene ourselves into an unauthorized constitutional convention and issue some proposals. 

My own cheeky contribution is a proposed constitutional amendment abolishing judicial activism by prescribing rules-of-construction governing the interpretation and application of the Constitution (original-public-meaning textualism, of course); abrogating stare decisis by specifying that prior judicial decisions contrary to the prescribed interpretive rules would not have any prospective force (even as to lower court judges!); and confirming that, even though the amendment would not reopen any final judicial judgments or dictate specific outcomes in specific cases, other branches and institutions of government are (of course) not bound in their actions by judicial decisions departing from such principles of proper constitutional interpretation. 

My provocative claim is that these are all correct understandings of how the Constitution is to be construed and applied already.  But it doesn’t hurt – and could help a great deal – to embody them explicitly in the Constitution. 

I hope to report next week on how the conference goes – once the Fix is in. 

This Day in Liberal Judicial Activism—May12

by Ed Whelan

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings.


President Trump, Promise Keeper

by Christopher R. Green

President Trump’s announcement on Monday of a new list of judicial nominees was received with acclaim by the conservative legal community as fulfilling a campaign promise to nominate judges committed to the original Constitution. As an originalist legal scholar who has not been shy about criticizing the president in the past, I am obliged to give credit where it is due and to recognize that this promise is one the administration has kept.

The Constitution puts promise-keeping front and center. Everyone who takes office is required by Article VI to make a solemn commitment, by oath or affirmation, to support “this Constitution” — the same one ratified in 1788 and amended only a few times since. That Constitution declares itself the supreme law of the land, the ultimate standard by which other legal claims are measured. In this way, the constitutional oath supplies an unmistakable moral obligation to all those who wield authority, from presidents, legislators, and judges down to the ordinary lawyers who serve as “officers of the court,” not to go beyond their delegated powers under the law. The oath is our constitutional culture’s ultimate common ground.

These obligations would be “parchment barriers,” as James Madison put it, if officeholders could not be trusted to respect them in practice. Last fall, others and I publicly criticized then-candidate Trump, arguing that he had not yet earned the public’s trust. His commitments on judicial nominations, in particular, struck us as ordinary political promises, easily forgotten amid a tumultuous campaign. Although Trump’s list of potential nominees included many jurists with sterling reputations, I had little expectation that he would adhere to it in office.

In practice, however, my prediction turned out to be wrong. In the interests of candor and humility, I must acknowledge that the president and his administration have taken this promise about nominations seriously.

Trump’s first judicial nominee, Justice Neil Gorsuch, was not only among those named on the list but among the most celebrated. Another on that list, District Judge Amul Thapar, was nominated for the Sixth Circuit and has made his commitment to the rule of law clear before the Judiciary Committee. Many of the nominees in Monday’s announcement have attracted similar praise. Michigan’s Justice Joan Larsen and Minnesota’s Justice David Ryan Stras, for example, were among the judges Trump cited as potential Supreme Court nominees; they have now been nominated to the Sixth and Eighth Circuits, respectively.

From my own academic work, I happen to be more familiar with two other nominees — Amy Coney Barrett for the Seventh Circuit and Kevin Newsom for the Eleventh Circuit. Barrett, a widely respected law professor at Notre Dame, has written extensively on the complex relationship between originalism and precedent. Her work makes clear that the original Constitution matters not only to judges, but to every official who takes the oath it prescribes; and she has devoted precise attention to the contours of that obligation. Newsom is well known as an appellate litigator in private practice; but he is also known for a pioneering analysis of the Fourteenth Amendment and its treatment in the Slaughter-House Cases in 1873. His work displays a clear-eyed analysis, an attention to detail, and a dogged willingness to correct longstanding error. These are real lawyers and scholars, not political cronies.

To Madison, a government strong enough to maintain control must be able to control itself. The rule of law, enforced by separated powers as well as the constitutional oath, is one of our chief means of keeping our government in check. In every administration, Republican and Democratic, lawyers and judges are called upon to enforce the obligations our Constitution has imposed since the Founding.

Not everyone who commits to follow the original Constitution arrives at the same view of what it requires. I may not agree on all points with these nominees, and can speak only for myself. But whatever one’s views of the administration, it’s only fair to say that it has already acted with more consideration of the Constitution’s restraints than I anticipated in 2016. In light of my fears from the fall, I am quite happy to see myself proven wrong.

— Christopher R. Green is an associate professor of law and the H.L.A. Hart Scholar in Law and Philosophy at the University of Mississippi. He has published widely on constitutional theory, the Article VI oath, and the Fourteenth Amendment.

This Day in Liberal Judicial Activism—May10

by Ed Whelan

2006—Mississippi attorney Michael B. Wallace, nominated to the Fifth Circuit by President Bush, is victimized by the ABA. In a scandalous process marked by bias, a glaring conflict of interest, incompetence (see here and here), a stacked committee, violation of its own procedures, cheap gamesmanship, and ultimately, flat-out perjury, the ABA committee rates Wallace “not qualified.” After Democrats regain control of the Senate in 2007, Wallace’s nomination is not resubmitted.

2011—In what Chief Judge Alex Kozinski’s dissent labels an “Article III putsch,” Ninth Circuit outlaw Stephen Reinhardt issues a 77-page majority opinion (in Veterans for Common Sense v. Shinseki) that would place the Department of Veterans Affairs’ mental-health-treatment and disability-compensation programs under the direct supervision of a federal district judge. One year later, an en banc panel of the Ninth Circuit will reverse Reinhardt by a 10-1 vote, with even all five Clinton appointees on the panel voting against Reinhardt.

Wrong on Every Count: William Watkins, Jr. on the Trinity Lutheran Case

by Michael Stokes Paulsen

Last week, the Wall Street Journal published a bizarre op-ed by William Watkins Jr. on the Trinity Lutheran Church v. Comer case, entitled “A Case the Justices Shouldn’t Have Heard.”  Trinity Lutheran was argued before the Supreme Court just a few weeks ago, on April 19.  It now awaits decision. 

Watkins argues that the case presents merely a state law issue, never should have been in federal court in the first place, never should have been heard by the Supreme Court, and is now moot.  Essentially everything Watkins says about the case is flatly and egregiously wrong.  Indulge me as I first unpack the case and then Watkins’s errors.

First, for the uninitiated:  Trinity Lutheran involves a Missouri state program, the “Scrap Tire Grant Program,” that provides grants to schools and pre-schools to support the installation of rubber playground surfaces to replace gravel or blacktop.  Trinity Lutheran Church operates a pre-school and daycare. Trinity Lutheran applied for a playground grant, but was denied because its daycare is a ministry of the church Trinity Lutheran was otherwise eligible for the grant.  And there was no serious question that the rubber-playground-resurfacing grant was an entirely secular benefit program.   

The State Department of Natural Resources (DNR) based its rejection of Trinity Lutheran’s application on the Missouri Constitution, as interpreted by the Missouri Supreme Court.  The provision at issue states: “No money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.”  

That frames the core constitutional issue presented by the case:  May a state exclude a religious organization from an otherwise neutral, secular government program solely because of the religious identity, values, expression, or mission of that religious group? 

Keep reading this post . . .

Excellent Nominations, Not ‘Outsourcing’

by Ed Whelan

I heartily concur in Carrie Severino’s ardent praise for the federal appellate nominees President Trump announced yesterday. From what I hear, more great picks will be coming soon.

Liberal Harvard law professor Noah Feldman also praises Trump for picking from among the circles of “serious, principled conservatives …, the kind of people who can leave an imprint on the courts for decades.” In particular, he hails Seventh Circuit nominee (and Notre Dame law professor) Amy Coney Barrett, whom he knows from their Supreme Court clerkship year together. Noting that he doesn’t agree with her “on too much, jurisprudentially speaking,” he calls her a “top flight, indeed brilliant lawyer,” “one of the standouts [among the Supreme Court clerks] for the pure power of her legal mind.”                                              

One quibble that I have with Feldman’s piece is that he says that Trump “has outsourced judicial selection thus far to elite conservative lawyers like those of the Federalist Society.” In fact, White House counsel Don McGahn has put together an exceptional team of such lawyers and has established a great process for judicial selection. Key positions at the Department of Justice are also being filled with outstanding conservative lawyers. So rather than outsourcing, Trump deserves credit for bringing so much excellent legal talent into his Administration and for drawing on the excellent advice he is receiving.