Stanford and Judge Duncan; Fourth Circuit transgender follies; and more
Inbox
| Ed Whelan ewhelan@eppc.org via gmail.mcsv.net | Mar 13, 2023, 2:10 PM (1 day ago) | ![]() ![]() | |
to me![]() | |||
From NRO’s Bench Memos:
What Punishments Must Stanford Impose?
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’
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
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
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
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
202-682-1200
www.EPPC.org
Sign up for email distributions of my blog posts
at National Review’s Bench Memos,
and subscribe to my Substack, Confirmation Tales.



By Charlie JohnstonSouth Bend, Indiana – In the 19th Chapter of 1 Kings, the prophet, Elijah, goes up in the mountain in search of God. While there he is buffeted by ferocious winds, a big earthquake, and the outbreak of a terrible fire. But God was in none of these. When a still, small whisper came to him, Elijah went out in adoration, for here was the Lord God.The modern world and the modern church is buffeted by heavy winds, terrible quakes, and ravenous fires. God has sovereignty over all these things, but that is not where He is. Do not go looking for Him there or become distracted by the fearful violence of the winds, quakes and fires around you. I speak of these things, but I try to keep us focused on God’s still, small voice – which we find in the little things we can do to make life a little better and a little more joyful for those around us.Let’s take a look at some of the winds and waves…A lot of very serious people are giving me their assessment of when, exactly, everything will go ka-flooey. They are also telling me what they are doing in hopes of cushioning themselves from the consequences of complete social collapse.I have said, from the beginning, that this was coming. It has come to a head later than I expected but much quicker than almost all the rest of the world believed possible. Far more important than the precise timing of specific events is the purpose behind each of those events. It is to bring as many of us back to God as is possible by our internal dispositions. God is changing our way of thinking, if we allow it. Let us call it the seven stages of renewal…First, reveal the depth of the rot. While that pot has been bubbling for almost a century, it finally came to full boil in late 2017 with the “me-too” revelations throughout entertainment, politics and news media. But this was just the beginning. We saw, once the Russian collusion hoax was revealed to be just that – a hoax – that the institutions we have long relied on are no longer working for the public good, but in an organized grasp for power over all of us. The news media lies all the time about everything. Gov’t bureaucrats serve neither the people nor their elected superiors: they work to enslave us and choose their own allies to rule us, while relentlessly working to topple anyone outside the cabal who accidentally wins election. Credentialed Churchmen work to topple Scripture and the Gospels to remake the “faith” into their own image. In their hands, Jesus is demoted from God to front man for their progressive project. You cannot change this. Rather, God wills you to see it with clarity that you may advance to the second stage.Second, you are forced to choose where you stand. While instinctively quick in most people, this stage takes time to play out for two reasons. Most people, even if solidly grounded in their faith, desperately want to believe that things will smooth over. Who wants to believe they will have to actually fight for their most foundational beliefs? While it may seem this breeds nothing but raw paralysis, it also gives time for those who are honestly misled to literally get right with God. As Mark Twain said, it is easier to fool people than to convince them they have been fooled. As I have often said, nothing is lost in God’s economy – so God gives time for those who have an honest heart but a foolish head to choose well. If they are not eaten up with narcissistic hubris, many will. Those who persist in believing, contra the growing evidence around them, that they – not God – are the source of all wisdom will become part of the ash heap of salvation history. Before this step is fully completed in the bulk of humanity the next step begins.Third, you must publicly declare yourself. It avails nothing to believe in God while keeping it to yourself, as Gideon found out before he stepped it up. As the Apostle says, “Even the demons believe – and tremble.” (James 2:19) Your choice must be followed by declaration and action or it is just an evasion of your active duty before God.Fourth, battle begins. As the lines are drawn with growing clarity, subtle subversion gives way to overt attacks. That does not mean efforts to deceive cease, but the deception is far more brazen. Attackers twist language, using the semantics of liberty and faith in their efforts to subvert it all. Censorship is touted to “save our democracy.” Biblically forbidden sexuality is endorsed in the name of “tolerance.” It is largely a more concentrated form of the old, “evil is good and good is evil” play. It only fools those who are already committed to evil. It fortifies the resolve of those who are committed to God. It does, however, confuse those meek souls who desperately want to believe that, in the face of determined evil, there can be some compromise between good and evil. Some of these succumb to the siren song of evil while others awake to the danger before them and re-commit to God. After the initial confusion and chaos, this stage solidifies the lines of the battle.Fifth, people realize there is no place of safety. The forces of aggression will not stop and are not at all shamed or slowed when their depredations are fully revealed. Even as people realize the battle cannot be stopped; that there will be no peace until one side has prevailed and the other defeated, some timid souls still hope to find safety by keeping their heads down. But the forces of evil now no longer demand mere tolerance for their depredations; they will only accept outright endorsement and participation. Those who try to insist on neutrality after this stage commences will be swept away by the forces of evil, with little help from the forces of good which they have determinedly held at arm’s length in hopes of avoiding trouble.Sixth, people begin to mount plans for defense. Having deceived themselves for so long that everything was going to smooth out, they are now shocked into action, realizing that it is not going to go away if they just ignore it all. Unfortunately, the action most choose initially is panicked and childish. Most begin devising a plan of escape that counts entirely on their cleverness and not at all on God. A little wisdom would tell them that if they were not clever enough to see that this was NOT just the normal give-and-take of politics it is a fool’s game to make their cleverness the foundation of their defense. A smaller group retreats into a restless search for signs, for “messages from heaven” that will tell how God is going to do everything for us to get us out of the mess our neglect and avarice have created. In short, they double down on the neglect that got us here but now call that neglect “faith.” This is the most chaotic stage of all – and would be terribly prolonged if not for God’s mercy and grace.Seventh, the mature ora et labora – or pray and work – stage. Those who work furiously from their own cleverness may spend all day mapping out how to feed the multitude with a couple of fish and a crust of bread but, despite their exhaustive efforts, all will go hungry. Those who spin ever more dire or hopeful pronouncements from heaven will ignore their constant failure and keep spinning in the void. Even the best, most clear-sighted among us still see as through a glass, darkly. The worst just relentlessly spin fantasies, either to terrify the masses or give false hope to themselves. The disengaged gear may spin furiously, but until it engages, it won’t move anything. Ora et labora. Without God, our labors are in vain. Without work, God’s grace has nothing to anoint. When we grow wise enough to know that it is all way too big for us, but do the little we can right in front of us, trusting to Him for all that we genuinely can’t do, God’s grace will take up residence among us. The force of 10,000 evil empires cannot withstand the power of a tiny smidgeon of God’s grace. Ora et labora. Not when we say it, but when we live it – without fear and without expectation, but simply because that is what God calls us to – is when satan and his evil will be swept away by the tidal wave of God’s grace.Then, and only then, will we be properly attired and ready for the Triumph of the Immaculate Heart. We will see the goodness of the Lord in the land of the living because we will be the goodness of the Lord in the land of the living. And then will open a new era of real peace, prosperity and brotherhood under God among men. Cast away childish things and become heralds of the Triumph.From the beginning, I founded CORAC as a foundational tool to live ora et labora. I have little sympathy for survivalism. Most survivalists won’t. Though I have – and continue – to live a life of profound mysticism, my mysticism tells me it is time to work, to trust God when I can’t even see the step right in front of me, to hoe my little garden because it is what God calls me to do right now and until He reveals His hand. If you must have a sign or a formula, that is what I have. Join me.Ora et labora.*********






You must be logged in to post a comment.