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KBJ on judges as umpires, and moreInbox Ed Whelan <ewhelan@eppc.org> Unsubscribe3:57 PM (19 minutes ago)to meFrom NRO’s Bench Memos:KBJ Offers Formalist Account of Judicial RoleBy ED WHELANMarch 21, 2022 4:49 PMFrom Judge Ketanji Brown Jackson’s opening statement today:I decide cases from a neutral posture. I evaluate the facts, and I interpret and apply the law to the facts of the case before me, without fear or favor, consistent with my judicial oath.If the nominee of a Republican president uttered those words, lefty law professors would be racing to condemn them as hopelessly naïve or outright deceptive. There is no such thing as a “neutral posture,” they would tell us, and the pretense of adopting such a posture disguises the policy choices that inhere in judging. The Left would heap scorn on a conservative nominee who summarized the judicial role as impartially applying the law to the facts—as being an umpire calling balls and strikes, if you will.Lest you take false hope from KBJ’s statement, have in mind that even Sonia Sotomayor adopted formalist-sounding rhetoric at her confirmation hearing. As I wrote back then:Judge Sotomayor deserves an A+ for brazen doublespeak. She emphatically rejected the lawless “empathy” standard for judging that President Obama used to select her, but she denied the plain import of her many statements contesting the possibility and desirability of judicial impartiality. She hid behind a ridiculously simplistic caricature of judging that embarrassed and disgusted her most vociferous backers, but she never recognized any meaningful bounds on the role of a Supreme Court justice. She gave a series of confused statements about the use of foreign law that are inconsistent with each other and that contradict a speech that she gave just three months ago.This Day in Liberal Judicial Activism—March 21By ED WHELANMarch 21, 2022 8:00 AM2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.” As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.” In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds: “As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.” Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement. 2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury. The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there is no real constitutional violation here anyway.” 2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.) This Day in Liberal Judicial Activism—March 20By ED WHELANMarch 20, 2022 8:00 AM Mar. 20, 1981—By a vote of 4 to 2, the California supreme court rules (in Committee to Defend Reproductive Rights v. Myers) that the state constitution forbids California from placing restrictions on the Medicaid funding of abortions when it fully funds the childbirth expenses of indigent women. This Day in Liberal Judicial Activism—March 19By ED WHELANMarch 19, 2022 8:00 AM 1957—President Eisenhower’s nomination of William J. Brennan, Jr. to serve on the Supreme Court is confirmed by the Senate. Brennan, a former New Jersey supreme court justice, is already serving on the Court by virtue of Eisenhower’s October 1956 recess appointment of him. Eisenhower’s selection of Brennan—which Eisenhower later identifies as one of his two biggest mistakes as president (see This Day item for March 1, 1954)—is said to have resulted from a recommendation by his campaign advisers that an appointment of a Catholic Democrat from the Northeast would attract critical voters. So much for basing Supreme Court selections on short-term political calculations. In retrospect, that recommendation appears to have been as unnecessary as it was foolish: Eisenhower wins re-election over Adlai Stevenson by a huge margin, 57%-42% in the popular vote and 457 to 73 in the electoral college. In his 34 years on the Court, Brennan deploys his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution. This Day in Liberal Judicial Activism—March 18By ED WHELANMarch 18, 2022 8:00 AM1963— As Seth Stern and Stephen Wermiel write in Justice Brennan, this day stands out among all others as the day when Justice Brennan’s “new majority”—resulting from Arthur Goldberg’s replacement of Felix Frankfurter—“flexed its muscles”: “The liberal bloc overturned four of the Court’s long-standing precedents” on a single day. In Fay v. Noia and Townsend v. Sain, in (as Justice Harlan puts it in his dissent in Fay) a “square rejection of long-accepted principles governing the nature and scope of the Great Writ,” the Court dramatically expands the federal habeas corpus rights of state prisoners. In Gideon v. Wainwright, the Court, overruling its 1942 decision in Betts v. Brady, holds that the Constitution requires that states provide counsel for indigent defendants in all criminal trials. And in Gray v. Sanders, the Court rushes deeper into the thicket of state redistricting, as it adopts a theory of political equality that it had previously rejected. This Day in Liberal Judicial Activism—March 17By ED WHELANMarch 17, 2022 8:00 AM1992—By order of a trial court, the sponsors of the annual St. Patrick’s Day parade in Boston are required to allow the Irish-American Gay, Lesbian and Bisexual Group of Boston to participate in their parade. In 1994, in an error of judicial passivism, the Massachusetts supreme court rules that the parade is not an exercise of First Amendment rights and that compelling the parade organizers to comply with state law banning discrimination on the basis of sexual orientation did not raise any significant First Amendment issue. In 1995, in Hurley v. Irish-American Gay Group of Boston, the U.S. Supreme Court unanimously reverses: “The selection of contingents to make a parade is entitled to [First Amendment] protection.” 2009—President Obama makes his first federal appellate nomination as he selects district judge David F. Hamilton for a Seventh Circuit seat. Among the distinctions in the judicial record of the former ACLU activist are an extraordinary seven-year-long series of rulings (ultimately reversed by the Seventh Circuit) obstructing Indiana’s implementation of its law providing for informed consent on abortion; a reckless invocation of substantive due process to suppress evidence of violation of drug laws (also reversed by the Seventh Circuit); a ruling barring Indiana’s House of Representatives from permitting invocations that refer to “Christ” but permitting invocations by Muslim imams that refer to “Allah” (reversed, for lack of standing, by the Seventh Circuit); and a reputation among criminal defense lawyers as the most lenient judge in the district. All of which, of course, leads the New York Times to proclaim Hamilton a “moderate”! 2020—In a divided panel ruling (in Pakdel v. City of San Francisco), the majority opinion of Ninth Circuit judge Michelle T. Friedland holds that a takings challenge is “unripe” because plaintiffs failed to avail themselves of a previously existing opportunity to apply for an exemption. But as Judge Carlos T. Bea argues in dissent, the government’s action is final and therefore ripe for review, and the majority is instead importing into the takings context a requirement that plaintiffs exhaust state remedies—a requirement that the Supreme Court had rejected just the previous year. Some months later, nine judges will dissent from the Ninth Circuit’s denial of en banc review. M. Edward Whelan III Distinguished Senior Fellow andAntonin Scalia Chair in Constitutional Studies Ethics and Public Policy Center 1730 M Street N.W., Suite 910 Washington, D.C. 20036 202-682-1200 |
ABYSSUS ABYSSUM INVOCAT / DEEP CALLS TO DEEP 