More on the Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

by Ed Whelan

A follow-up to yesterday’s post on the Ginsburg Standard:

As then-Judge Ginsburg explained at her confirmation hearing (transcript here), her record of opinions, law-review articles, speeches, and briefs provided the “most tangible, reliable indicator of [her] attitude, outlook, approach, and style” as a judge. Insofar as the hearing sought “helpful clarifications” of that record, it served a useful and legitimate purpose. But insofar as it instead sought to induce her to offer “forecasts” or “hints” about how she might rule in cases that might come before her, she regarded herself as ethically bound not to provide any such forecasts or hints.

Adhering steadfastly to the Ginsburg Standard is not easy, as Ginsburg herself observed: “I appreciate now more than ever how difficult it is for the [nominee] to maintain that line [i.e., the line ‘between judicial philosophy and votes in particular cases’] and not pass beyond it into forecasting or giving hints about votes in particular cases.” Part of the reason that steadfast adherence isn’t easy is that it’s politically tempting to win praise for endorsing popular precedents and for criticizing unpopular ones. (Some Democrats have argued that Ginsburg didn’t live up to her stated standard; as I explained way back during the Roberts nomination, that would be an indictment of Ginsburg, not an argument against the Ginsburg Standard.)

When senators ask a Supreme Court nominee to state whether the nominee believes that a particular precedent was rightly decided, they are either (a) seeking to have the nominee offer a hint on how the nominee would rule in a case that arguably involves the meaning or scope of that precedent on a matter that involve, or (b) using the precedent as a proxy for exploring the nominee’s judicial philosophy. Even when the inquiring senator has the latter motivation, answering the question risks giving a hint and thus violating the Ginsburg Standard.* Plus, there are plenty of other available means to explore the nominee’s judicial philosophy.

In short, the most sensible and principled way to apply the Ginsburg Standard is to refuse to answer any question about whether a particular precedent was rightly decided, except in those rare instances in which it’s clear that the meaning or scope of that precedent will not be at issue in any case that might foreseeably come before the Court.

An additional reason to take this approach is that appellate judges decide cases by reading briefs, conducting oral argument, and conferring with each other. But a question whether a judge believes that a particular precedent was rightly decided seeks to shortcut this deliberative process, and answering that question (in the absence of careful study of the case) gives the impression that judging is little more than picking the results one likes.

* Linda Greenhouse misses this elementary point when she oh-so-cleverly advises senators: “Don’t accept the standard nominee response that ‘I can’t answer because that question might come before the court.’ It has already come before the court.” (Emphasis in original.)

‘Former Client Recommended Gorsuch for Tenth Circuit’

by Ed Whelan

The headline above surely isn’t as attention-grabbing, much less as conspiracy-mongering, as the actual headline on this New York Times article—“Neil Gorsuch Has Web of Ties to Secretive Billionaire”—but it does strike me as markedly more accurate.

For starters, the article itself describes the billionaire in question, Philip F. Anschutz, merely as “publicity-shy” rather than “secretive.” And if the NYT reporters wanted to learn more about Mr. Anschutz, they might have been able to get a useful lead or two from their own editorial-page editor James Bennet, whose brother, current Colorado senator Michael Bennet, worked for Anschutz for years.

But, more importantly, here’s the core of what the supposed “web of ties” between Gorsuch and Anschutz is alleged to consist of:

As a lawyer at a Washington law firm in the early 2000s, Judge Gorsuch represented Mr. Anschutz, his companies and lower-ranking business executives as an outside counsel. In 2006, Mr. Anschutz successfully lobbied Colorado’s lone Republican senator and the Bush administration to nominate Judge Gorsuch to the federal appeals court. And since joining the court, Judge Gorsuch has been a semiregular speaker at the mogul’s annual dove-hunting retreats for the wealthy and politically prominent at his 60-square-mile Eagles Nest Ranch.

Two observations:

1. The article’s claim that Mr. Anschutz “successfully lobbied … the Bush administration to nominate Judge Gorsuch to the federal appeals court” strikes me as curious phrasing. To be sure, a lawyer for Anschutz sent a letter on his behalf to the White House recommending that Gorsuch be nominated. But are we really supposed to believe that the Bush White House, on the lookout for bright young conservatives to appoint to the federal bench, had to be “lobbied” by Anschutz to select Gorsuch?

Gorsuch, after all, was serving at the time in the Department of Justice as the principal deputy associate attorney general. As a former D.C. Circuit and Supreme Court law clerk who practiced law in D.C., he was well known in conservative legal circles. And as a native Coloradan and former clerk to Byron White, he was an obvious pick for the Tenth Circuit vacancy that opened up in Denver.

As it happens, someone in the Bush administration who was very involved in the process that led to the nomination of Gorsuch tells me that, as far as he recalls, Anschutz’s name never came up during the process. What he does recall is that the idea to nominate Gorsuch arose during the normal interplay between the White House Counsel’s office and senior DOJ leadership, and that both the White House and DOJ immediately responded enthusiastically.

2. The article’s claim that Mr. Anschutz “sought to secure [the Tenth Circuit seat] for [Gorsuch]” sounds nefarious. But it’s far more plausible that Anschutz simply recognized Gorsuch to be, as the letter puts it, “an exceptionally talented lawyer” who would make an excellent judge.

What, after all, could possibly have been in it for Anschutz? He lost his past (and potential future) lawyer to the Tenth Circuit, where Gorsuch (as Anschutz and his top legal team would surely have foreseen) regularly recused himself from all matters involving Anschutz and his companies. That’s hardly the stuff of a conspiracy.

Disclosure: As its publicly available tax returns show, the Anschutz Foundation has generously supported the Ethics and Public Policy Center, the think tank I run. For example, this return—the most recent I have been able to find quickly in searchable format—reflects a $20,000 contribution in 2012.

The Ginsburg Standard: ‘No Hints, No Forecasts, No Previews’

by Ed Whelan

In her opening statement at her 1993 confirmation hearing (transcript here), Ruth Bader Ginsburg explained that she could “offer no forecasts, no hints” on how she might rule on issues that might come before the Supreme Court:

You are well aware that I come to this proceeding to be judged as a judge, not as an advocate. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process. [Emphasis added.]

As she put it later in responding to a question about possible constitutional protections against discrimination based on sexual orientation:

I cannot address that question without violating what I said had to be my rule about no hints, no forecasts, no previews. [Emphasis added.]

Instead, she explained, the Senate should “judge [her] qualifications principally on [her] written record” of judicial rulings, briefs, and articles,” and she was happy to discuss those at her hearing.

Senator Schumer Attacks Rule of Law

by Ed Whelan

Senate Democratic leader Chuck Schumer’s press conference today (ongoing as I write this) with supposed victims of Judge Gorsuch’s principled judicial decisionmaking is a stupid stunt that highlights that so many on the Left have a completely results-oriented approach to judging.

Liberal Harvard law professor Noah Feldman soundly denounces this whole line of attack as a “truly terrible idea” that contradicts the “whole point of a rule-of-law system.” As Feldman explains, the rule of law means that judges are “to decide cases under the law, not based on preferences for individuals.”

Schumer himself used to understand this (or at least to pretend to). Indeed, his opening statement at Justice Sonia Sotomayor’s confirmation hearing (see pages 24-25 of transcript) is replete with praise for her “hew[ing] carefully to the text of statutes, even when doing so results in rulings that go against sympathetic litigants”:

[S]he has ruled for the government in 83 percent of immigration cases against the immigration plaintiff, she has ruled for the government in 92 percent of criminal cases, she has denied race claims in 83 percent of cases and has split evenly on employment cases between employer and employee.…

In a case involving a New York police officer who made white supremacist remarks, she upheld his right to make them.

In a case brought by plaintiffs who claimed they had been bumped from a plane because of race, she dismissed their case because the law required it.

So why is Schumer abandoning the rule of law in attacking the Gorsuch nomination?

Judicial Conference Calls for More Judges

by Jonathan H. Adler

The Judicial Conference of the United States is recommending that Congress create several dozen additional seats on the federal judiciary. Specifically, the Judicial Conference is calling for the creation of five new seats on the U.S. Court of Appeals for the Ninth Circuit, and 52 federal district court seats in parts of the country that have seen a dramatic increase in filings. The Conference also suggests that Congress could leave one seat open on the U.S. Court of Appeals for the Tenth Circuit, due to a low caseload. According to the Judicial Conference, Congress has not enacted “comprehensive judgeship legislation” in over twenty-five years.

Were Congress to follow the Judicial Conference’s advice, this would give President Trump more judicial seats to fill, primarily on federal district courts. I doubt that Congress is in any rush to increase the size of the U.S. Court of Appeals for the Ninth Circuit, however. That Court is already an unwieldy size. A more likely — and, perhaps, more controversial — course would be to create new appellate judgeships in conjunction with splitting the Ninth Circuit into two more-regular-sized courts, as has been proposed by Senator Jeff Flake, among others.

There are also members of Congress that wish to add seats to the U.S. Court of Appeals for the D.C. Circuit, in part to rebalance the court after then-Senate Majority Leader Harry Reid forced through all of President Obama’s nominations to the court. The problem with this idea is that the D.C. Circuit is in no need of additional judges. If anything, it has more than its current caseload requires. To be defensible, any increase in the D.C. Circuit’s size would have to be combined with an expansion of its jurisdiction. In all likelihood, the D.C. Circuit’s size will remain at eleven active judges.

This Day in Liberal Judicial Activism—March 15

by Ed Whelan

1933—Ruth Joan Bader is born in Brooklyn, New York. At her Supreme Court confirmation hearing sixty years later, Ruth Bader Ginsburg, defending the invention of a constitutional right to abortion, decries the fact that her mother did not have the legal right to kill her in utero: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself.”

 

2016—No plaintiff? So what?

 

Federal district judge Susan Dlott somehow sees fit to order Ohio’s secretary of state to keep polls open an extra hour in four counties. Dlott issues her order in response to phone calls that the clerk’s office received from unidentified individuals concerned that a serious accident on a bridge would prevent stranded motorists from voting. As the local paper notes, her action “came without a written complaint, a court hearing or a formal presentation of evidence that might show federal election laws were about to be violated.” 

 

On review, a Sixth Circuit will rule that Dlott lacked jurisdiction because no plaintiff had standing. As Judge Jeffrey Sutton succinctly puts it, “There is no plaintiff with standing if there is no plaintiff.”

This Day in Liberal Judicial Activism—March 14

by Ed Whelan

2011—Elevated by President Obama to the Ninth Circuit two months earlier, Mary H. Murguia still has damage to carry out as a federal district judge. In acquitting Elton Simpson of a charge of making a false statement involving international terrorism, Murguia does verbal somersaults to rule that the government did not prove beyond a reasonable doubt that Simpson’s discussions about traveling to Somalia were sufficiently related to international terrorism:

It is true that the Defendant had expressed sympathy and admiration for individuals who “fight” non-Muslims as well as his belief in the establishment of Shariah law, all over the world including in Somalia. What precisely was meant by “fighting” whenever he discussed it, however, was not clear. Neither was what the Defendant meant when he stated he wanted to get to the “battlefield” in Somalia.

Some four years later, in May 2015, Elton Simpson will launch a jihadist attack in Garland, Texas. 

Democrats’ Empty Case Against Gorsuch

by Ed Whelan

This New York Times article on Democrats’ “most prominent planned line of attack” on Supreme Court nominee Neil Gorsuch shows that they have no ammunition.

Here’s how the article sums up the Democrats’ two-pronged attack:

[1] Judge Gorsuch’s rulings have favored the powerful and well connected. [2] And he has done little, they will say, to demonstrate his independence from a president whose combative relationship with the judiciary has already clouded the nominating process. [Bracketed numbers added.]

Let’s consider these two prongs:

1. In the article, Democrats manage to cite a grand total of three cases (out of some three thousand during Gorsuch’s judicial career) in support of their charge:

a. “In one case, Judge Gorsuch argued in a dissent that a company was permitted to fire a truck driver for abandoning his cargo for his own safety in subzero temperatures.”

As I’ve explained in this extended account, the legal question in the case was whether a whistleblower provision that protects a driver when he “refuses to operate a vehicle” because of safety concerns protected a trucker who (as Gorsuch put in in his dissent) “chose instead to operate his vehicle in a manner he thought wise but his employer did not.” As Gorsuch points out, “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.” Nor is there any law giving judges free rein to second-guess whether an employer’s decision to fire an employee “was a wise or kind one.”

In short, Gorsuch was dispassionately applying the law.

b. “In another [case], he ruled against a family seeking reimbursement under a federal disabilities law for the cost of sending a child with severe autism to a specialized school.”

I addressed this case in the second half of this post. I’ll note briefly here that Gorsuch’s opinion was unanimous, that it was joined by a very liberal Clinton appointee (Mary Beck Briscoe), and that it steadfastly sought to follow a 1982 Supreme Court precedent that it cited some twenty times. So it’s difficult to see how Democrats could make effective use of this case.

c. “Then there was the professor who lost her job after taking time off to recover from cancer: Judge Gorsuch denied her federal discrimination claim, saying that while the predicament was ‘in no way of her own making,’ it was ‘a problem other forms of social security aim to address.’”

I addressed this case in the first half of this post. Once again, we have a unanimous Gorsuch opinion joined by a very liberal Clinton appointee (Carlos Lucero this time). (The article notes this, but oddly doesn’t do the same for the autism case.)

As Gorsuch explains, in order to establish a claim for discrimination under the Rehabilitation Act, the professor had to show (among other things) that she could “perform the job’s essential functions with a reasonable accommodation for her disability.” But it was undisputed that “she couldn’t work at any point or in any manner for a period spanning more than six months.” So she wasn’t capable of performing the job’s essential functions. 

d. As the article notes, “Judge Gorsuch’s defenders have accused Democrats of cherry-picking.” At his hearing, Gorsuch and Senate Republicans will have plenty of cases to cite to show that Gorsuch neutrally applies the law.

It’s not Gorsuch’s job to be a “friend of the little guy” (as the article’s headline sums up the Democrats’ position) or a friend of the big guy or a friend of any party. So, yes, individuals whose plights win our sympathy will lose their cases when they have weak legal claims. That’s what the rule of law means.

e. Democratic leader Chuck Schumer, of course, doesn’t get it (or at least pretends not to). He complains that Gorsuch “sort of expresses sympathetic words in many of these cases, but then his decision is coldly—he would say pragmatic, we would say coldly—on the side of the big interests.”

No, Senator Schumer, Gorsuch would not “say pragmatic.” Gorsuch soundly rejects the notion that judges have broad discretion to read statutes in furtherance of their own assessments of what is “pragmatic.” Gorsuch would instead say that he was striving to apply the law dispassionately in these cases. And any fair reading of them would support his account.

2. Democrats’ second charge can be readily disposed of. No one who knows Judge Gorsuch or who has examined his record with care has any basis for concern that he will exercise proper judicial independence, whether from President Trump or from any other political considerations. That’s obviously part of the reason why the ABA’s judicial-evaluations committee gave Gorsuch its “strongest affirmative endorsement.”

Democrats, I gather, will try to fault Gorsuch for not speaking out against various things that President Trump has said or done. But the idea that it’s incumbent on, or proper for, a Supreme Court nominee—who is also a sitting federal judge—to inject himself into political disputes is a very odd one.

In short, this second line of attack, like the first, will operate primarily to show that Democrats don’t understand the proper role of a judge.

(By the way, my posts on the Gorsuch nomination are being compiled on this single page, for easy searching.)

This Day in Liberal Judicial Activism—March 13

by Ed Whelan

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 violated 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.”

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

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.

Leading Members of Supreme Court Bar Endorse Gorsuch

by Ed Whelan

Members of the Supreme Court bar who collectively* “have argued more than 500 cases before the Court” and who “hold a broad range of political, policy, and jurisprudential views” have signed a letter to the Senate Judiciary Committee stating that they “are unified in offering our support of Judge Gorsuch’s nomination.”

Prominent liberal signatories include former Stanford law school dean Kathleen M. Sullivan, American Constitution Society board member David C. Frederick, and Lisa Blatt (head of Arnold & Porter’s Supreme Court practice).

* I will note that the 30 or so signatories include two wannabes—two GOP-affiliated attorneys from the same law firm who are eager to be in the company of leading members of the Supreme Court bar but who between them have argued a grand total of one case before the Court. 

ABA Committee Unanimously Awards Gorsuch Its ‘Strongest Affirmative Endorsement’

by Ed Whelan

The American Bar Association’s Standing Committee on the Federal Judiciary has unanimously awarded Supreme Court nominee Neil Gorsuch its highest rating of “Well Qualified.”

Here’s the Committee’s fuller explanation (emphasis added) of what “Well Qualified” means for a Supreme Court nominee:

To merit the Committee’s rating of “Well Qualified,” a Supreme Court nominee must be a preeminent member of the legal profession, have outstanding legal ability and exceptional breadth of experience, and meet the very highest standards of integrity, professional competence and judicial temperament. The rating of “Well Qualified” is reserved for those found to merit the Committee’s strongest affirmative endorsement.

Diverse Group of Law School Classmates Support Gorsuch

by Ed Whelan

Dozens of Neil Gorsuch’s Harvard Law School classmates—“Democrats, Republicans, Libertarians and independents; progressives, conservatives and moderates; religious and non-observant; married, single and divorced; men and women; straight and gay”—have signed a powerful letter setting forth why they support his Supreme Court nomination.

Among the signatories is prominent Democrat Norm Eisen, who was special counsel for ethics in President Obama’s White House (as well as ambassador to the Czech Republic).  

Excerpts from the letter:

[W]e attended law school with Judge Neil Gorsuch—a man we’ve known for more than a quarter century—and we unanimously believe Neil possesses the exemplary character, outstanding intellect, steady temperament, humility and open-mindedness to be an excellent addition to the United States Supreme Court….

Judge Neil Gorsuch is a person for all seasons. For Republicans, Neil personifies a disinterested philosophy that respects judicial modesty combined with compassionate appreciation of the lives impacted by his decisions. For Democrats, he is a reasonable, qualified, intelligent person who will give each case fair and impartial consideration on its merits with sensitivity to our nation’s history, values, aspirations and constitutional traditions. For all Americans, he is a person of integrity who respects the rule of law and will ensure that it applies equally to all.

Victory in Guam

by Roger Clegg

Yesterday a federal trial court in Guam ruled unconstitutional a proposed plebiscite in which only Chamorros (the native group indigenous to Guam) would have been allowed to vote. That’s the right decision, since such racial discrimination is banned by the 14th and 15th Amendments. Congratulations and kudos to Christian Adams, the Center for Individual Rights, and the law firm Gibson Dunn, all of whom had a hand in this important victory.

By the way, you might have thought that the U.S. Department of Justice would have played some role in vindicating the voting rights at stake here, but you would have been wrong: The Obama administration stayed conspicuously on the sidelines. Here’s hoping that if there is an appeal from or outright resistance to this week’s court ruling — the governor of Guam has made some George Wallacesque pronouncements — the Trump administration will get in the game.

Prominent Progressive Lawyer: No Reason to Vote No on Gorsuch

by Ed Whelan

In this Washington Post op-ed, prominent appellate lawyer David C. Frederick, “a longtime supporter of Democratic candidates and progressive causes” and a member of the board of directors of the left-wing American Constitution Society, explains to his fellow Democrats why “there is no principled reason to vote no” on the nomination of Neil Gorsuch to the Supreme Court.

Frederick praises Gorsuch (his “former law partner and longtime friend”) as “brilliant, diligent, open-minded and thoughtful.” Frederick also refutes the wildly distorted attacks that various groups on the Left have launched (and that I’ve critiqued in various posts collected here). An excerpt:

As a judge on the U.S. Court of Appeals for the 10th Circuit, Gorsuch has not been the reflexive, hard-edged conservative that many depict him to be. He has ruled for plaintiffs and for defendants; for those accused of crimes as well as for law enforcement; for those who entered the country illegally; and for those harmed by environmental damage.

Anyone who sees Gorsuch as automatically pro-corporation should talk to the officers at Rockwell International and Dow Chemical, against whom he reinstated a $920 million jury verdict for environmental contamination at the Rocky Flats nuclear facility. Executives at U.S. Tobacco Company might also be wringing their hands at the moment, given that Gorsuch, as an attorney, helped to attain one of the largest antitrust verdicts in history against the company.

This Day in Liberal Judicial Activism—March 9

by Ed Whelan

1964—Does the New York Times lack First Amendment rights because it is owned and operated by a corporation? The idiotic suggestion embedded in that question will confound New York Times editors decades later, but it properly plays no role in the Supreme Court’s decision in New York Times v. Sullivan.

The Court unanimously overturns a libel judgment of $500,000 in punitive damages entered in favor of Montgomery (Alabama) city commissioner L.B. Sullivan against the New York Times Company and four black ministers whose names were attached to a full-page advertisement that protested against mistreatment of blacks in the South. But illustrating that racist facts generate bad law, the Court doesn’t limit itself to the solid ground that there was zero evidence that the allegedly libelous statements could plausibly have been understood to refer to Sullivan.

Instead, relying heavily on a 1908 Kansas supreme court case, Justice Brennan’s majority opinion invents the rule that the First Amendment “prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard of whether it was false or not.”

Three justices would go even further—by recognizing an “unconditional right to say what one pleases about public affairs” (Black, joined by Douglas) and “an absolute, unconditional privilege to criticize official conduct despite the harm which may flow from excesses and abuses” (Goldberg, joined by Douglas).

1983—In Community for Creative Non-Violence v. Watt, the en banc D.C. Circuit rules, by a 6-5 vote, that the First Amendment bars the National Park Service from applying its anti-camping regulations to demonstrators who, as part of their protests on behalf of the poor and the homeless, sought permission to sleep in Lafayette Park. The six justices in the majority divide among four separate opinions, leading Judge Malcolm Wilkey in dissent to observe that “it seems apparent that [our six colleagues] are quite sure that these appellants should be allowed to sleep in Lafayette Park, but they have had great difficulty in figuring out why.”

Judge Wilkey, in the principal dissent (for all five dissenters), opines that even on the assumption that sleeping qualifies as speech for First Amendment purposes, the anti-camping regulations may be applied. Judge Antonin Scalia (joined by Judges MacKinnon and Bork) separately dissents “flatly to deny that sleeping is or can ever be speech for First Amendment purposes.” Scalia observes: “That this should seem a bold assertion is a commentary upon how far judicial and scholarly discussion of this basic constitutional guarantee has strayed from common and common-sense understanding.”

One year later, in Clark v. Community for Creative Non-Violence, the Supreme Court will reverse the D.C. Circuit by a 7-2 vote (with—surprise!—Justices Brennan and Marshall in dissent).             

This Day in Liberal Judicial Activism—March 8

by Ed Whelan

1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.
 

This Day in Liberal Judicial Activism—March 7

by Ed Whelan

2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy).

Heritage Foundation Event on Judge Gorsuch

by Ed Whelan

Tomorrow (Tuesday) at noon, I’ll be taking part in a panel discussion on Judge Gorsuch at the Heritage Foundation. My fellow panelists are Michael Carvin and C. Boyden Gray.

I’ve been asked to discuss Gorsuch’s rulings on religious liberty, and my co-panelists will address his rulings on free speech and administrative law.

The event will be live-streamed.

Supreme Court Vacates Fourth Circuit Transgender Ruling

by Ed Whelan

In an important procedural victory for the Gloucester County School Board, the Supreme Court today issued an order (without any recorded dissent) that vacates the Fourth Circuit’s (unsound) judgment in G.G. v. Gloucester County School Board and remands the case to the Fourth Circuit “for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.” That guidance document is available here.

What this means is that the Fourth Circuit’s badly confused ruling has been wiped out: It is no longer binding precedent in the Fourth Circuit, nor should it be cited by any other court.

Let’s hope that the Fourth Circuit panel does a better job on remand (or that G.G.’s imminent graduation moots the case).