Dobbs and fate of conservative legal movement; CA6 en banc rehearing in TN abortion case; CA6 en banc divide on Chevron/criminal law; and more


Ed Whelan <> Unsubscribe12:29 PM (1 hour ago)
to me

From NRO’s Bench Memos:


December 6, 2021 10:49 AM

In a City Journal essay, law professor Joel Alicea (whose work I’ve had ample occasion to praise) soundly observes of the pending Dobbs case:

This, then, is the moment the conservative legal movement has fought to bring about. If the Court fails to overrule Roe, the ruling will likely shatter the movement, and while (under a proper conception of the judicial role) the potential effect of Dobbs on the conservative legal movement should be irrelevant to the outcome in that case, it would be a significant legacy of the Roberts Court if Dobbs brought an end to one of the most successful intellectual and political projects of the past half-century.

Alicea explores the “intellectual tensions with the conservative legal movement—present since its inception and now coming to the fore.” He identifies and discusses two major tensions. One is an “intra-originalist tension … between those who saw originalism as a means to achieving some other substantive end [most prominently, judicial restraint] and those for whom it was the only legitimate constitutional methodology.” The second tension involves “disagree[ment] about whether originalism rests on a sufficiently robust moral foundation.”

Alicea forecasts that the decision in Dobbs “will likely either increase those tensions to the point of rupture”—if, that is, the Court fails to overturn Roe—“or greatly alleviate them.” He bracingly warns:

If the Court fails to overrule Roe and Casey, there is a very good chance that [Adrian] Vermeule would become the most important intellectual figure in whatever succeeds the current conservative legal movement.

Sixth Circuit Grants En Banc Rehearing in Tennessee Abortion Case


December 6, 2021 12:23 PM

I’m pleased to see that the Sixth Circuit last week, on the same day as oral argument in Dobbsgranted en banc review in Memphis Center for Reproductive Health v. Slatery.

The case involves a challenge by abortion providers to two provisions of Tennessee law. One provision (section 216) bars abortion, except in the event of a medical emergency, at cascading intervals—detection of heartbeat, 8 weeks gestational age, 10 weeks, 12 weeks, 15 weeks, 18 weeks, 20 weeks, 21 weeks, 22 weeks, 23 weeks, and 24 weeks—and provides that any interval determined to be unenforceable shall be severed from the law. The second provision (section 217) forbids anyone from performing an abortion if that person “knows that the woman is seeking the abortion because of” the sex or race of the unborn child or “because of a prenatal diagnosis … indicating Down syndrome.”

The Sixth Circuit panel opinion in September was unanimous that section 216 was barred by Roe v. Wade and Planned Parenthood v. Casey, even as Judge Amul Thapar wrote a powerful opinion explaining how wrong those precedents are. The panel divided on the anti-discrimination provision: the majority ruled that section 217 is unenforceable, while Judge Thapar dissented, pointing out (among other things) that earlier in the year the en banc Sixth Circuit had upheld “Ohio’s nearly identical anti-discrimination law.” (As Thapar points out, “Tennessee added race and gender to the protected class,” but those additions have nothing to do with the majority’s grounds of objection.)

It’s a safe bet that the Sixth Circuit granted en banc review primarily for the purpose of revisiting the section 217 ruling but realized, now that Dobbs is pending in the Supreme Court, that it ought to hold the section 216 ruling for possible re-examination as well. My guess is that the Sixth Circuit will not act on the case until the Court rules in Dobbs. Section 216 will be unenforceable in the meantime. Section 217, as I understand it, remains in effect, as a Sixth Circuit motions panel issued a stay pending appeal of the district court’s preliminary injunction as to that provision. (I’m told that Tennessee, evidently eager to have crystal clarity on the matter, has just asked the Sixth Circuit for an identical stay.)

The cascading provisions of section 216 also highlight what a foolish exercise it would be for the Court in Dobbs to say that Mississippi’s 15-week bar is okay without being able to draw a principled line that would substitute for the arbitrary line of viability. Such a delaying action would just ensure that cases like Tennessee’s would move quickly through the pipeline to the Court. Once again, there is no coherent middle ground in Dobbs, and the only legitimate option is for the Court to overturn Roe and Casey.

Important En Banc Sixth Circuit on Whether Criminal Statutes Receive Chevron Deference


December 6, 2021 1:19 PM

In an order last Friday (in Gun Owners of America v. Garland), the en banc Sixth Circuit reported that it had divided evenly, eight to eight, on the question whether the federal Bureau of Alcohol, Tobacco, Firearms, and Explosives (widely known as ATF) properly classified a bump stock as a machine gun as defined by 26 U.S.C. § 5845(b). Such a divide results in the affirmance of the judgment below. In this case, that means that the district court’s ruling denying plaintiff’s request for a preliminary injunction against ATF stands.

Fourteen of the sixteen judges who took part in the case issued or joined opinions that explained their position. Notably, they divided seven to seven, broadly along ideological lines, on the question whether ATF is entitled to Chevron deference in interpreting the criminal provision at issue.

Under Chevron deference, if a statute is ambiguous, the administrative agency charged with applying the statute is entitled to adopt a reasonable interpretation of the statute, even if that interpretation is not the best interpretation. Chevron deference most commonly arises in the civil context, and its application in the criminal context would seem in tension with the rule of lenity, which holds that where a criminal statute is ambiguous, the most lenient interpretation of that statute should be adopted.

I have not yet had time to read the competing opinions with care. I offer here an excerpt from Judge Eric Murphy’s opinion (joined by six of his conservative colleagues):

Since the early days of our Republic, it has been a bedrock legal principle that our government cannot criminalize conduct and send people to prison except through democratically passed laws that have made it through both Houses of Congress and been signed by the President. Yet the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) has sought to ban “bump stocks” in a far different way: through a regulation adopted by a federal agency alone….

The circuit courts that have upheld the Bump-Stock Rule have not suggested that the ATF’s contrary view “is the better reading of the statute.” Indeed, they have not even felt the need to ask which is the better reading. Id. They have instead held that they must review the ATF’s reading under Chevron’s “two-step” approach….

I find three problems with this approach. First, the courts justify their use of Chevron with irrelevant cases that interpret statutes expressly delegating power to an agency to enact criminal regulations. Second, the courts wrongly expand Chevron’s domain by holding that Congress impliedly delegated to the Attorney General the power to interpret a criminal law merely because it gave him a general authority to enact regulations. Third, even under Chevron’s regime, the courts improperly find ambiguity without attempting to figure out the statute’s meaning.

Murphy goes on to explain (among other things) that courts must apply the rule of lenity at Chevron’s step one in order to determine whether it resolves any ambiguity in the criminal statute. In other words, the rule of lenity can operate to render unambiguous, for purposes of Chevron, a criminal provision that would otherwise be ambiguous.

This Day in Liberal Judicial Activism—December 5


December 5, 2021 8:00 AM

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

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

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

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

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

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

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

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

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

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

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

2017—Federal district judge William Alsup files in the Supreme Court his own brief disputing the federal government’s motion for a stay of his order that would have required it to disclose all documents bearing on its rescission of the Deferred Action for Childhood Arrival (“DACA”) policy. Two weeks later, in a unanimous opinion, the Court will grant the government’s motion.

2018—No Catholics need apply? In written questions following his hearing, Democratic senators Kamala Harris and Mazie Hirono grill Brian C. Buescher, a nominee to a district-judge seat in Nebraska, about his membership in the Knights of Columbus, the world’s largest Catholic fraternal organization.

In response, Democratic congresswoman Tulsi Gabbard will strongly condemn Hirono and Harris for “fomenting religious bigotry.” (In July 2019, the Senate will confirm Buescher’s nomination.)

M. Edward Whelan III
Distinguished Senior Fellow and

Antonin Scalia Chair in Constitutional Studies
Ethics and Public Policy Center
1730 M Street N.W., Suite 910
Washington, D.C. 20036

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About abyssum

I am a retired Roman Catholic Bishop, Bishop Emeritus of Corpus Christi, Texas
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