Stanford and Judge Duncan; Fourth Circuit transgender follies; and more


Ed Whelan via Mar 13, 2023, 2:10 PM (1 day ago)
to me

From NRO’s Bench Memos:

What Punishments Must Stanford Impose?

Ed Whelan

about 3 hours ago

In their joint apology to Judge Kyle Duncan, Stanford president Marc Tessier-Lavigne and Stanford law dean Jenny Martinez acknowledged the obvious fact that the protestors’ disruption of Duncan’s presentation “was inconsistent with our policies on free speech.” They further acknowledged that “staff members who should have enforced university policies failed to do so, and instead intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”

The question now is what punishments Stanford should impose. I think that it’s clear that DEI dean Tirien Steinbach should be fired. As for the student protestors, Stanford’s written policy on campus disruptions—a policy that Steinbach herself linked to in her email to students before the event—provides valuable guidance. That policy expressly states that while Stanford “firmly supports the rights of all members of the University community to express their views or to protest against actions and opinions with which they disagree”:

It is a violation of University policy for a member of the faculty, staff, or student body to:

Prevent or disrupt the effective carrying out of a University function or approved activity, such as lectures, meetings, interviews, ceremonies, the conduct of University business in a University office, and public events.

That policy also expressly states that while there is no “ordinary” penalty for violations, past infractions “have led to penalties ranging from censure to expulsion.” (Emphasis added.) It thus gives clear notice that censure should be expected as the minimum penalty.

Princeton professor Robert P. George offered this helpful guidance:

Hold everything constant–the interruptions, vile language, and the rest–except the speaker is Sonia Sotomayor, the sponsor is the Stanford Women’s Collective, and the students disrupting the event and hurling hateful epithets at the speaker are anti-abortion. What would happen?

Whatever the true answer to that question is, is also the answer to the questions of what should have been done by administrators at Judge Duncan’s talk, and what sanctions should be imposed now on those who disrupted it.

Boston University professor David Decosimo responded:

Let’s be real. If a group of conservative Stanford law students shouted down a federal judge w/ obscenities & mocked their sex life while a Dean watched & praised them, there’d be front page stories on fascism, the Dean would be fired, & they’d be expelled & banished from big law.

‘Please Reach Out To Your Abuser For Support’

Ed Whelan

about 1 hour ago

Another entry in the beyond-parody category: As the Free Beacon’s Aaron Sibarium has reported, one of the Stanford law bureaucrats who attended Judge Duncan’s event and who did nothing to stop the disruption has emailed student leaders of Stanford’s Federalist Society chapter “to provide you with resources that you can use right now to support your safety and mental health.”

Believe it or not, one of acting associate dean of students Jeanne Merino’s suggestions is to “reach out” to DEI dean Tirien Steinbach—yes, the leading culprit in this whole matter—“if you would like support or would like to process last week’s events:

Fourth Circuit’s Transgender Follies

Ed Whelan

about 1 hour ago

In early January, I highlighted the federal district judge, Clinton appointee Joseph R. Goodwin, who had the guts and humility to reverse his position and to dissolve the preliminary injunction that he had initially entered against West Virginia’s “Save Women’s Sports” law. Under the West Virginia law, biological males cannot take part on girls’ sports teams in public schools. Goodwin ruled that the law survives intermediate scrutiny under the Equal Protection Clause and that it satisfied—indeed, “largely mirrors”—Title IX.

Just after expedited briefing was completed on appeal (in B.P.J. v. West Virginia Board of Education), a divided Fourth Circuit panel, in a one-sentence order devoid of reasoning, dramatically altered the status quo, as it enjoined operation of the West Virginia law for the duration of the appeal.

West Virginia has now filed in the Supreme Court a motion to vacate the Fourth Circuit’s injunction. From the introduction to that motion (citations omitted):

[The Fourth Circuit’s] unreasoned order unjustifiably upsets the way that things traditionally work in school sports. For as long as schools have offered sports teams, it has been the “norm” to designate student athletes to them by sex. Without that separation, there is “a substantial risk that boys would dominate the girls’ programs and deny them an equal opportunity to compete in interscholastic events.” Separate teams also “aid in th[e] equalization” of athletics programs for men and women by “mak[ing] monitoring of the opportunities provided easier.” And sometimes, co-ed teams cause a “detrimental effect on the safety of the participants.” For these and other reasons, many have recognized that “commingling of the biological sexes in the female athletics arena would significantly undermine the benefits” that separate sports teams “afford to female student athletes.”

Nothing warrants the Fourth Circuit majority’s radical approach, and this Court should vacate its unreasoned and incorrect injunction. Complete lack of analysis is the first tell that something is amiss, as federal courts should not enjoin democratically passed legislation without at least providing a rationale. What’s more, B.P.J. will not succeed on the merits. All parties, B.P.J. included, agree that separated sports teams serve important interests. Consistent with that starting point, the Act makes the reasonable judgment that many have made before: Biological differences between males and females matter in sports. Both Title IX and the Fourteenth Amendment allow that judgment.

Let’s hope that the Court promptly grants West Virginia’s motion.

This Day in Liberal Judicial Activism—March 13

Ed Whelan

about 7 hours ago

1963—Ernesto Miranda is arrested in Phoenix on charges of abduction and rape. His interrogation by police yields a written confession. His confession is admitted at trial, and he is convicted.

Three years later, in Miranda v. Arizona, the Supreme Court rules by a 5-4 vote (with the majority opinion by Chief Justice Warren) that a confession made during custodial interrogation will be conclusively deemed involuntary and inadmissible unless police first provide what are now known as the Miranda warnings (or unless other effective safeguards are adopted). It therefore vacates Miranda’s conviction. In dissent, Justice Harlan states that “[o]ne is entitled to feel astonished that the Constitution can be read” to bar admission of a confession “obtained during brief, daytime questioning … and unmarked by any of the traditional indicia of coercion.” Harlan also observes that the “thrust of the [Court’s] new rules” is not to protect against coerced confessions but “ultimately to discourage any confession at all.”

In response to Miranda, Congress in 1968 enacts a law providing that voluntary confessions shall be admissible in evidence in federal prosecutions, whether or not Miranda warnings were given. In 2000, in a striking illustration of the staying power of activist precedents, the Supreme Court rules 7-2 in Dickerson v. United States that Miranda “announced a constitutional rule that Congress may not supersede legislatively,” and it voids the federal statute. As Justice Scalia argues in dissent, the majority in Dickerson does not in fact hold that the use at trial of a voluntary confession, in the absence of Miranda warnings, violates the Constitution, but rather regards Miranda’s rules as merely “prophylactic.” Thus, in voiding the federal law, the majority necessarily rules that it has the “immense and frightening antidemocratic power” “not merely to apply the Constitution, but to expand it, imposing what it regards as useful ‘prophylactic’ restrictions upon Congress and the States.”   

2014—By a vote of 5 to 2, the Florida supreme court rules (in Estate of McCall v. United States) that a statutory cap on wrongful-death non-economic damages on medical-malpractice claims violates the equal-rights guarantee under the state constitution. Five justices agree that the plurality opinion misapplies rational-basis review. But three of those justices nonetheless concur in the plurality’s result. That leaves only the two dissenters to embrace the simple reality that the cap “is rationally related to the legitimate state interest of decreasing medical malpractice insurance rates and increasing the affordability and availability of health care in Florida.”

This Day in Liberal Judicial Activism—March 11

Ed Whelan

March 11, 2023

2020—“I think it needed to be said,” asserts octogenarian federal district judge Lynn S. Adelman in defense of his 35-page political screed titled “The Roberts Court’s Assault on Democracy.” 

In fact, Adelman says nothing that hasn’t already been said, over and over, in the fever swamps of the Left. He condemns Chief Justice Roberts’s metaphor of a judge as umpire as a “masterpiece of disingenuousness,” charges that “the Court’s hard right majority is actively participating in undermining American democracy,” alleges that the Court’s rulings “constitute a direct assault on the right of poor people and minorities to vote,” and complains that the “Republican Party has been particularly afflicted by the concentration of wealth at the top,” “has also become more partisan, more ideological and more uncompromising,” and has displayed a “zealous partisanship” on judicial appointments that “reminds one of nothing so much as … those fervent defenders of slavery who pushed the South into the Civil War.” (And that’s all just in his screed’s first eight pages. How could anyone read further?) 

Adelman, a longtime liberal state senator who was appointed to the federal bench by Bill Clinton in 1997, might be said to epitomize the judge as politician in a robe—except that he is known to appear frequently in his courtroom without even bothering with the pretense of a robe.

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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