This Day in Liberal Judicial Activism—February 25

by Ed Whelan

1992—Justice Thomas’s dissenting opinion in Hudson v. McMillian—four months into his service on the Court—produces a spasm of confused outrage from the Left. As Thomas explains in the opening of his dissent, the sole issue before the Court is a legal one: Must a prisoner alleging that he has suffered “cruel and unusual punishment” establish that he has suffered a significant injury? The court below had found the prisoner’s injuries to be “minor,” and that factual determination was not under review by the Court. Addressing the legal question, Thomas reads the Court’s precedents as requiring showing of a significant injury, and he abides by that view. He also declares: “Abusive behavior by prison guards is deplorable conduct that properly evokes outrage and contempt. But that does not mean that it is invariably unconstitutional. The Eighth Amendment is not, and should not be turned into, a National Code of Prison Regulation.” Thomas further notes that the prisoner had state-law remedies available and, if those remedies were not adequate, a federal due-process claim.

The next day, this hitherto obscure case is featured in the lead article on the front page of the New York Times. Linda Greenhouse’s article highlights the injuries suffered by the prisoner, but fails to mention that the lower court’s finding that the injuries were minor was not under review by the Court. She also quotes extravagant language from Justice O’Connor’s majority opinion that, responding to Thomas’s position that the same legal standard should govern both excessive-force and conditions-of-confinement claims under the Eighth Amendment, falsely implies that Thomas denies the factual “difference between punching a prisoner in the face and serving him unappetizing food.” Greenhouse juxtaposes Thomas’s dissent with his confirmation testimony about his compassion. She also highlights a supposed “close alliance” between Thomas and Scalia.

One day later, a New York Times editorial, viciously titled “The Youngest, Cruelest Justice,” falsely asserts that Thomas’s dissent “contended that since the prisoner suffered only a split lip, loosened teeth, and a broken dental plate, he had no constitutional complaint.” The editorial feigns “crashing disappointment” with him. Happily, unlike others subjected to the gaseous pollutants of the Greenhouse effect, Thomas remains unaffected.

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is

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.

This day in liberal judicial activism—February 24

by Ed Whelan

2010—President Obama nominates Berkeley law professor Goodwin Liu to a Ninth Circuit seat. With his volatile mix of aggressive ideology and raw inexperience, the 39-year-old Liu is that rare nominee who threatens to make the laughingstock Ninth Circuit even more ridiculous. Liu openly embraces a freewheeling constitutional approach that yields a plethora of extreme left-wing results: among them, support for the invention of a federal constitutional right to same-sex marriage, pervasive and perpetual racial quotas, and judicial imposition (usually in an “interstitial” role) of an array of rights to social “welfare” goods, including education, shelter, subsistence, and health care.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But later that year, California governor Jerry Brown will appoint Liu to the California supreme court. Liu follows in the line of three aggressive liberal activists whom Brown appointed to the state supreme court during his first stint as governor three decades ago, Rose Bird, Cruz Reynoso, and Joseph Grodin (all of whom were ousted by voters in their 1986 retention election).

2016—As the Left awaits President Obama’s nomination to fill the vacancy resulting from Justice Scalia’s death eleven days earlier, it concocts all sorts of crazy claims that the Senate has some sort of duty to vote on his nomination.

Appearing on national television on PBS NewsHour, Senator Dick Durbin badly misstates the Constitution’s Appointments Clause:

“The Constitution which we’ve sworn to uphold is very clear when it comes to Article two, section two. The President shall appoint a nominee to fill a vacancy on the Supreme Court and the Senate shall by advice and consent vote on that nominee. Those are not, uh, vague words. Those are words that impose a responsibility on the Senate which the Republican leader is ignoring.”

Yes, Senator Durbin, those aren’t vague words. They’re imaginary ones. The Appointments Clause restricts the president’s power to appoint executive-branch and judicial-branch officers by conditioning any such appointment on prior receipt of the Senate’s “Advice and Consent” on a nomination. It does not speak at all to how the Senate should go about exercising its power over nominations.

Law professor Geoffrey Stone out-Durbins Durbin. Appearing at a mock hearing held by Senate Democrats, Stone purports to discern a practice under which “the Senate always defers to the president as long as the president puts forth nominees who are clearly qualified and who are reasonably moderate in their views.” Stone specifically cites Justice Samuel Alito as one such nominee. Yes, this is the same Stone who urged the Senate in 2006 not to confirm Alito and who emphasized back then that a “Supreme Court nomination is, and always has been, a political process” (Stone’s emphasis) and that “members of the Senate are free to reject nominees if they disagree with [the nominee’s] views.”

Police Officer Dead from Liberal Judicial Activism?

by Ed Whelan

This one hits close to home: Keith Boyer, a police officer in my hometown of Whittier, California, was shot to death on Monday at an intersection near my childhood home. Police have identified Michael Christopher Mejia as the suspect in Boyer’s killing. According to this Whittier Daily News article (emphasis added):

Mejia was released from state prison in April 2016 following a grand theft auto conviction in 2014. He was on county probation under Assembly Bill 109 when he allegedly shot and killed Boyer and Torres and also had been arrested multiple times in recent months for violating his probation, Corina said.

Signed into law in 2011, AB 109 mandated “realignment,” which shifted nonviolent offenders from state prisons to county jails, or placed them on probation under county supervision rather than parole under state supervision. It was a response to a U.S. Supreme Court order declaring the condition of California’s overcrowded prisons as violating the constitutional rights of inmates.

[Update (12:35 p.m.): According to an e-mail that has been forwarded to me, state prison officials are contesting (or at least attenuating) the causal connection between AB 109 and Officer Boyer's death. By their account, AB 109 "did not impact time served" by Mejia, but only "the entity handling supervision of [him] following [his] release.”]

The Supreme Court ruling that the article refers to is the Court’s 5-4 decision in 2011 in Brown v. Plata. That decision affirmed what Justice Scalia in dissent called “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals” and to maintain its prison population below a certain threshold.  In his own dissent, Justice Alito lambasted the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faulted the Court majority for “gambling with the safety of the people of California” in a way that “will lead to a grim roster of victims.”

And guess who issued the injunction that Justice Kennedy and his four liberal colleagues affirmed? A three-judge district court consisting of three hard-Left Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson.

On the assumption that it was Mejia who killed Officer Boyer, is it unfair of me to also lay blame for his death on Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan and Judges Reinhardt, Karlton, and Henderson? I certainly don’t think so. [This conclusion of mine is subject to the update above and is predicated on the article's understanding that there is a traceable connection between Brown v. Plata and Officer Boyer's death. I have added a question mark to the title of this post to reflect the uncertainty.]

Let me emphasize that I believe that a judge has a duty to interpret and apply the law faithfully, irrespective of the consequences. So if the court rulings were objectively faithful applications of the law, I would not fault any of the justices and judges who made those rulings. But for the reasons spelled out in Scalia’s and Alito’s dissents, I believe those rulings were glaringly wrongful exercises of judicial activism. And while I will happily assume that all the jurists were acting in subjective good faith, that doesn’t render their rulings objectively faithful to the Constitution.  

I’ll also note that so-called “living constitutionalists” routinely offer consequentialist justifications for their judicial inventions. As I’ve explained, I don’t believe that consequences provide the proper measure of the soundness of an interpretive methodology. But for those who do, they should be ready to accept responsibility for the adverse consequences of their rulings—including (so it appears) the murder of Officer Boyer.

This Day in Liberal Judicial Activism—February 23

by Ed Whelan

1993—When is a quota not a quota? The St. Petersburg Times reports that Florida chief justice Rosemary Barkett, a member of the Florida Commission on the Status of Women, defends a commission report that recommends passage of legislation requiring that all of Florida’s decisionmaking boards and commissions be half male and half female by 1998. Barkett explains: “It is not in the context of a quota system. It is simply an acknowledgment that women make up one-half of the population of this state.” Oh.

Impressed by her willingness and ability to deny the obvious, President Clinton months later nominates Barkett to an Eleventh Circuit seat.

2009—In an effort to bamboozle Republican senators and advance her own prospects for a Supreme Court nomination, Solicitor General nominee Elena Kagan submits evasive responses to post-hearing questions. For example, in response to the question, “Do you believe that there is a federal constitutional right to same-sex marriage?,” Kagan states, “There is no federal constitutional right to same-sex marriage.” Only in a further follow-up exchange does she make clear that she is not conveying her own view as to how the Constitution is best read on this matter but is merely stating that no such right has yet been generally recognized. Or, as she puts it in her academic gobbledygook:

I meant for this statement to bear its natural meaning. [sic!] Constitutional rights are a product of constitutional text as interpreted by courts and understood by the nation’s citizenry and its elected representatives. By this measure, which is the best measure I know for determining whether a constitutional right exists, there is no federal constitutional right to same-sex marriage.

Kagan’s ruse nonetheless snookers the mainstream media: Upon her nomination to the Supreme Court a year later, various major newspapers leave their readers thinking that Kagan is on record against inventing a constitutional right to same-sex marriage.

‘Occupy’ Law Professor’s Empty Attack on Gorsuch—Part 2

by Ed Whelan

Having shown in my Part 1 post that Fordham law professor Zephyr Teachout has no actual evidence to support her Occupy Wall Street attack on Neil Gorsuch, I’ll now turn to her broader misframing of antitrust law.

Teachout purports to present the “two sharply different philosophies” of antitrust law that “have emerged” among Supreme Court justices in “the 137 [sic; should be 127] years since Congress passed the Sherman Act.” In her cartoonish account, on one side is her “democratic,” big-is-bad philosophy that holds that it is “vital to use antitrust law to distribute power and opportunity as widely as possible in society.” On the other side is the “anti-democratic” view that “allows the rich and powerful to do whatever they will to the independent businessman and farmer.”​

The historic battle in antitrust is better understood as over whether the antitrust laws protect competitors or competition. That battle has been fought and won by the latter view, as in recent decades a consensus has developed among conservative and liberal justices that the antitrust laws protect competition (and advance the public interest by doing so). Thus, Justice Brennan, in his majority opinion in Cargill, Inc. v. Monfort of Colorado (1986), explained the concept of antitrust injury by citing the “principle that the ‘antitrust laws … were enacted for “the protection of competition, not competitors.”’” For that proposition, he quoted a unanimous opinion written in 1977 by Justice Thurgood Marshall.  

Teachout also makes the bizarre claim that Justice Scalia in his three decades on the Court “undermine[d] basic tenets of antitrust law.” But all that Teachout offers in support of that extravagant claim is Justice Scalia’s majority opinion in Verizon Communications v. Trinko (2004), which held that a complaint that an incumbent local telephone company had breached its statutory duty to share its network with its competitors did not allege a violation of section 2 of the Sherman Act. (Disclosure: I worked for Verizon and its predecessor company GTE from 1995 to 2001.)

Among the justices who joined Scalia’s opinion in Trinko were Ginsburg and Breyer. Indeed, Scalia favorably cites two Breyer opinions, one as a justice, one as a First Circuit judge. There were no dissenters. (The three justices who didn’t join Scalia’s opinion—Stevens, Souter, and Thomas—would have ruled that the plaintiff lacked standing to assert its antitrust claim.)

Continuing in fantasy mode, Teachout asserts that Trinko “had a chilling effect on [antitrust] prosecutions.” Oh, really? Prosecutions under section 2 of the Sherman Act have long been rare, and there is no reason to think that Trinko had any effect on them. And Teachout’s claim that Trinko “is part of the reason a handful of big companies now dominate U.S. markets for cable, drugs, hospital beds, seeds, eyeglasses, office supplies, milk, beer and books” (emphasis added) seems to be just another way for her to gripe that her own “philosophy” of antitrust has been thoroughly rejected and marginalized.

In short, the one and only person whom Teachout’s piece exposes as an extremist on antitrust law is Teachout herself.

North Carolina Governor’s Supreme Court Hijinx

by Ed Whelan

In late December, the state of North Carolina, its then-governor Patrick McCrory, the state board of elections, and the executive director and individual members of the state board of elections filed a joint petition for certiorari seeking the Supreme Court’s review of a Fourth Circuit ruling striking down various state election reforms. Briefing on the petition was completed last week.

Then, just yesterday, acting at the behest of new governor Roy Cooper, new North Carolina attorney general Josh Stein filed a motion confusingly titled “Motion of Petitioners the State of Carolina and Governor Roy Cooper to Dismiss the Case” (emphasis added). Contrary to the title, the motion itself asks only that Cooper and the state of North Carolina “be dismissed as parties to the case.”

Cooper had the motion filed without providing any advance notice to his fellow petitioners. Even worse, he and Stein failed to inform the leadership of North Carolina’s General Assembly, even though it was that legislative leadership that had actually retained counsel to represent the state of North Carolina in the Supreme Court proceedings. This happened after Cooper, who was then attorney general, declined to continue to handle the matter and said (per paraphrase in this article) that the “[o]utside counsel … who are already involved in the case can handle any [Supreme Court] appeals.”

In a letter yesterday, the governor’s office now claims that the two firms that the General Assembly retained to represent the state were not authorized to do so. In response, an attorney from one of the firms explains in detail that Cooper’s new claim “is completely inconsistent with the position” he took as attorney general and that the firms intend to continue representing the state.

‘Occupy’ Law Professor’s Empty Attack on Gorsuch—Part 1

by Ed Whelan

It’s a good thing that Fordham law professor Zephyr Teachout’s official bio touts her as an “immensely talented and creative scholar”—because you sure wouldn’t know it from her Washington Post (online only?) hit piece on Supreme Court nominee Neil Gorsuch. Or does it take immense talent to string together a series of boilerplate attacks? And is it creative to just make things up out of whole cloth?

Teachout, an Occupy Wall Street supporter who recently ran for Congress, and lost, as a Bernie Sanders favorite, tries to play the leftist populist card against Gorsuch. (Her piece was initially titled “Neil Gorsuch always sides with big business, big donors and big bosses,” but the “always” has now been dropped, and a more tentative subtitle has been added.) Teachout’s piece is replete with sweeping claims:

Gorsuch’s record on the bench reveals a man with a strong top-down streak, a preference for concentrated wealth and power. He has consistently been the friend of big business and monopolies at the expense of competition and open markets, and the friend of big donors at the expense of small donors. In disputes between the employee and employer, he sides with the boss.

She rails about what a “Gorsuch economy” and a “Gorsuch democracy” will look like, and she claims that Gorsuch’s views on antitrust and campaign finance “reveal a judge who will further open the way for a few wealthy people to rob the American people of their basic freedoms and properties, and to subvert our democracy once and for all.”

Teachout barely tries to provide any actual evidence for her sweeping claims. Let’s look at her feeble case against Gorsuch:

1. After a longwinded misframing of antitrust law (which I will address in my Part 2 post), Teachout finally cites two of Gorsuch’s opinions in which, she complains, he “found no antitrust violations despite substantial evidence that a dominant player used its power to push out rivals.”

In Novell v. Microsoft, Gorsuch wrote a unanimous panel opinion that held that the district judge properly ruled that Microsoft had no duty to share its intellectual property with Novell. So that’s four judges on one side, and Teachout on the other. Plus, the Supreme Court denied Novell’s petition for certiorari, and the Obama administration did not support that petition.

Gorsuch explained that it’s rare that a business’s unilateral refusal to share its property with its rival violates the antitrust laws and that Novell had presented no evidence from which a jury could find that one of those rare situations existed. Teachout claims that Gorsuch, “a strict follower of the formalistic theories of Chicago School economics,” “elevated the writing of conservative academics above the congressional intent underpinning antitrust law.” But Gorsuch’s opinion, far from relying on the “writing of conservative academics,” extensively discusses and applies Supreme Court precedents. His opinion doesn’t include a single mention of Bork or Posner or (unless I missed it) any other Chicago School academic. He instead has a dozen or so secondary cites to the hornbook written by Phillip Areeda of the rival (and putatively more moderate) Harvard School.

The second Gorsuch opinion that Teachout complains of is Four Corners Nephrology Associates v. Mercy Medical Center. Teachout can’t even muster a specific sentence about the opinion, and no wonder: Gorsuch’s unanimous opinion was joined by Robert Henry and William Holloway, both Democratic appointees.

(Teachout doesn’t even link to the two opinions she is criticizing. Her links instead are only news to articles about them, one of which isn’t even publicly available.)

2. Teachout likewise provides no support for her claim that on campaign finance Gorsuch is “the friend of big donors at the expense of small donors.” Teachout repeats the Left’s false talking point that in his concurrence in Riddle v. Hickenlooper Gorsuch “suggested that donating to a politician is a ‘fundamental’ right that ought to be afforded the highest form of constitutional protection.” She further frets that that supposed suggestion “matters because Gorsuch could vote to strike down the existing limits of $2,700 per person for a federal candidate.” But, as I’ve explained, far from making any “suggest[ion]” of his own, Gorsuch was simply highlighting the confusion that he saw in the Supreme Court’s precedents. Further, he cited with approval the federal “model” of regulating campaign contributions, so it’s beyond strange to read his opinion as evidence that he would strike down the federal limits.

That’s it. There’s nothing else in Gorsuch’s record that Teachout cites in support of her outlandish characterizations.

This Day in Liberal Judicial Activism—February 22

by Ed Whelan

1994—Justice Blackmun’s law clerks, perhaps concerned that he is falling behind on his citechecking responsibilities, melodramatically announce (in a dissent from denial of certiorari in Callins v. Collins) that he “no longer shall tinker with the machinery of death.” No, he’s not abandoning his lawless abortion jurisprudence. Rather, he is announcing that he will henceforth—in the few remaining months of his 24-year career on the Court—regard the death penalty as unconstitutional.

According to liberal legal scholar David J. Garrow (in this essay), Blackmun’s records show, “especially after 1990, … a scandalous abdication of judicial responsibility.” Among other things, “his clerks were almost wholly responsible for his famous denunciation of capital punishment” in Callins. One memo from a clerk to Blackmun regarding a new draft of the Callins opinion encapsulates the role reversal: “I have not altered any of the cites. It is therefore unnecessary for you to recheck the cites for accuracy.”

This Day in Liberal Judicial Activism—February 21

by Ed Whelan

1996—In Fierro v. Gomez, a Ninth Circuit panel, in an opinion by Judge Harry Pregerson, rules that California’s method of execution by lethal gas violates the Eighth Amendment. 

This Day in Liberal Judicial Activism—February 20

by Ed Whelan

1980—Justices Brennan, Marshall, Blackmun, and Stevens dissent from Justice White’s majority opinion in Committee for Public Education v. Regan, which rules constitutionally permissible a New York statute authorizing the use of public funds to reimburse private schools (both religious and secular) for performing various testing and reporting services mandated by state law. The dissenters would have permitted a statute that provided such aid only to secular private schools, but imagined that the inclusion of nondiscriminatory support for state-mandated costs incurred by private religious schools violated the Establishment Clause. Blackmun laments “a long step backwards,” and Stevens calls for “resurrect[ion]” of the mythical “wall” of separation. (For more on the “wall” myth, see This Day entry for February 10, 1947.)

This Day in Liberal Judicial Activism—February 18

by Ed Whelan

1972—In a Brennanesque opinion in People v. Anderson, the California supreme court, by a 6-1 vote, misconstrues the state constitution’s prohibition on cruel or unusual punishment to reflect “contemporary standards of decency” and rules that the death penalty violates what it imagines contemporary standards to be. All pending death sentences, including those of Charles Manson and Sirhan Sirhan, are voided. Nine months later, the people of California, expressing actual contemporary standards, override the ruling by voting overwhelmingly to amend the state constitution to authorize the death penalty. 

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is

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.

This Day in Liberal Judicial Activism—February 17

by Ed Whelan

1964—In Wesberry v. Sanders, the Supreme Court somehow extracts from the provision in Article I, section 2 that members of the House of Representatives be chosen “by the People of the several States” a supposed mandate that congressional districts in each state have, as nearly as practicable, equal populations.

In dissent, Justice Harlan lambastes the majority opinion as “unsound logically on its face, and demonstrably unsound historically.” He explains that Article I, section 4 confers on each state “plenary power to select their allotted Representatives in accordance with any method of popular elections they please, subject only to the supervisory power of Congress.” He closes by observing that the Constitution “does not confer on the Court blanket authority to step into every situation where the political branch may be thought to have fallen short,” and by warning that the Court’s “stability” depends “not only on its being alert to keep the other branches of government within constitutional bounds, but equally upon recognition of the limitations on the Court’s own functions in the constitutional system.” 

Re: Erwin Chemerinsky Is Beyond Parody

by Ed Whelan

One follow-up to this post: Both in this Politico whack at Gorsuch (which I had forgotten about) and in his San Francisco Daily Journal piece, Erwin Chemerinsky writes:

In deciding whether to filibuster, Democrats should remember that there were 48 votes against Clarence Thomas and 42 votes against Samuel Alito. They could have been blocked by filibusters, and it was a huge mistake that Democrats did not do so.

Does Chemerinsky really not recall that, with his urging, Democrats tried to filibuster the Alito nomination but failed (on a cloture vote of 72 to 25)? Is he really so clueless about the political process to think that a senator’s vote against a nomination means that he would necessarily also vote to filibuster that nomination?  

Left-Wing Letter Against Gorsuch—Part 3

by Ed Whelan

Okay, let me complete my wade (see Part 1 and Part 2 posts) through the sludge of the LCCHR letter against Supreme Court nominee Neil Gorsuch:

“Students with Disabilities”: LCCHR complains of three rulings by Gorsuch involving the Individuals with Disabilities Education Act.

I’ve already extensively addressed Gorsuch’s unanimous opinion in Thompson R2-J School District v. Luke P. in the second half of this blog post, so I’ll just highlight here that his opinion steadfastly sought to follow the Supreme Court’s 1982 ruling in Board of Education v. Rowley and succeeded so well in doing so that Judge Mary Beck Briscoe, a very liberal Clinton appointee, joined his opinion in full.

LCCHR faults Gorsuch for supposedly holding in Garcia v. Board of Education of Albuquerque Schools that “a student who left the school out of frustration with the school’s failure to follow the IDEA was entitled to no remedy.” But what Gorsuch held was that the district court did not abuse its broad discretion under IDEA in denying relief to the student. In part that was because the student already possessed the same right (to provision of a “free and appropriate public education”) that she sought to have imposed as a remedy. In part it was because the student, with her “significant record of disciplinary problems and truancy,” had “demonstrated a clear commitment to avoid school and [to] disregard the educational opportunities available to” her. (LCCHR’s assertion that the student “left the school out of frustration with the school’s failure to follow the IDEA” is a fabrication.) Once again, Briscoe joined Gorsuch’s opinion in full.

The third ruling that LCCHR complains about is A.F. v. Española Public Schools. The case presents a complicated statutory question whether a student who has settled, and had dismissed with prejudice, an IDEA complaint may pursue under other federal disabilities laws the same relief that she could have pursued under IDEA. It would take far too much time and space to present the competing views of Gorsuch’s majority opinion and the dissent (by Briscoe). I’ll limit myself to noting that the tie-breaking vote in favor of Gorsuch’s position was cast by Clinton appointee Michael R. Murphy.

“Corporate Bias”: LCCHR imagines that Gorsuch’s concurring opinion (in Gutierrez-Brizuela v. Lynch) calling into question the Chevron doctrine of judicial deference to administrative agencies reflects some sort of “corporate bias” on his part. But as I have explained, and as some folks on the Left fearing a Trump administration are coming to realize, the Chevron doctrine has no inherent ideological valence; how it operates in practice depends on who is running the agencies. Instead of recklessly impugning Gorsuch’s motives, defenders of Chevron should engage the separation-of-powers arguments that Gorsuch has made.

“Money in Politics”: LCCHR contends that Gorsuch’s concurring opinion in Riddle v. Hickenlooper “suggested courts should afford strict scrutiny … to political contribution limits.” But as I explained in this post, Gorsuch was simply highlighting the “conflicting clues” he saw in the Supreme Court guidance on the proper level of scrutiny. His approving statement about how the “federal government regulates campaign contributions” contradicts LCCHR’s silly assertion that he would be “extremely hostile to campaign finance reform measures and would essentially gut the ability of Congress and the states to set any reasonable limits on money in our elections.”

“Environmental Protection”: Beyond repeating its Chevron canard, LCCHR complains about two of Gorsuch’s cases.

LCCHR argues that Gorsuch’s dissent in United States v. Nichols “tried to revive an obscure legal doctrine that could strike down many significant environmental laws.” In case you’re wondering, that “obscure legal doctrine” that LCCHR doesn’t dare to identify is, as Gorsuch puts it, that “the prosecutor isn’t allowed to define the crimes he gets to enforce.” Or, if you prefer, that under the so-called nondelegation doctrine, the Constitution’s separation of powers places some limits on the legislative powers that Congress may delegate to executive-branch agencies, especially when criminal liability is involved.

LCCHR also complains that Gorsuch “concurred” in Wilderness Society v. Kane County. In that case, the en banc Tenth Circuit ruled by a vote of 9 to 2 that an environmentalist group’s lawsuit to vindicate the property rights of the federal government should have been dismissed. The majority opinion for six judges ruled that the group lacked prudential standing to sue. Gorsuch did not join that opinion but instead wrote an opinion concurring in the judgment that rested on mootness and redressability grounds. One of the two judges who joined his opinion was liberal Clinton appointee Mary Beck Briscoe. In quoting the dissent’s criticism of the majority opinion, LCCHR leaves the false impression that it applies to Gorsuch’s concurrence.

LCCHR also errs by omission. It fails to note, much less credit Gorsuch for, his opinion in Energy & Environmental Legal Institute v. Epel, which rejected a constitutional challenge to a Colorado clean-energy law. Lefty environmental groups celebrated Gorsuch’s ruling when it was issued.

* * *

I thank the tireless readers who have made it with me to the end. I would not have bothered to address LCCHR’s letter so extensively but for the fact that some people, whether from gullibility or political bias, might be inclined to take it seriously. But what we see here, as we’ve already seen with People for the American Way and American Bridge, is a shoddy and thinly disguised political attack made by folks who amply demonstrate that they have no idea what good judging entails or no interest in seeing it prevail.

Erwin Chemerinsky Is Beyond Parody

by Ed Whelan

For most of the last year, law professor Erwin Chemerinsky was propagating the “silly” and “obviously fatuous” claim that the Senate had a constitutional duty to hold an up-or-down vote on President Obama’s nomination of Merrick Garland. Never mind that back in 2005 Chemerinsky wrote a law-review article that defended the use of the filibuster to block judicial nominations, including Supreme Court nominations. Never mind that in January 2006 he urged Senate Democrats to filibuster the Alito nomination. (See cites in linked post.)

In a Los Angeles Daily News op-ed (and in a very similar piece, not available online, in the San Francisco Daily Journal, a newspaper for lawyers), Chemerinsky now calls for Senate Democrats to filibuster the Gorsuch nomination. Chemerinsky does not acknowledge, much less try to explain away, the blatant contradiction in his positions. (And, no, as I explain in the link above, Chemerinsky can’t plausibly claim that the “timely vote” to which he said Garland was constitutionally entitled was something other than a final Senate floor vote on the nomination.) He even continues to claim that Senate Republicans “stole” the seat.

What’s perhaps most telling is that Chemerinsky makes his call for a filibuster in the midst of a cartoonish attack on originalism. Is there any stronger indictment of Chemerinsky’s “living Constitution” approach than the fact that Chemerinsky’s positions on the constitutionality of the filibuster flip back and forth depending on who is president?

Left-Wing Letter Against Gorsuch—Part 2

by Ed Whelan

Before continuing my section-by-section response to the LCCHR letter against Supreme Court nominee Neil Gorsuch, I’d just like to observe that one of the most galling aspects of the letter is its signatories’ purported opposition to “litmus tests.” Never mind its failure to distinguish between tests of judicial philosophy and tests of political ideology. The larger scandal is that the LCHHR letter is nothing more than a series of political litmus tests.

The letter rarely acknowledges, much less engages, Gorsuch’s legal reasoning and instead persistently objects (even if wild distortions are required to do so) to the results that he reaches. In its manifest contempt for legal reasoning, the letter thoroughly discredits every organization that has signed it.

Back to the letter’s specific claims:

“Women’s Health”: It’s no surprise that LCCHR goes way off the deep end here.

Of the Tenth Circuit’s decision in Hobby Lobby Stores v. Sebelius, LCCHR says that Gorsuch “signed on to an opinion allowing certain for-profit employers to refuse to comply with the birth control benefit in the Affordable Care Act.” It’s wrong that the HHS contraceptive mandate was set forth in the Obamacare statute. (It was imposed by regulation.) But more importantly, it omits that Gorsuch and the Tenth Circuit majority were applying the federal Religious Freedom Restoration Act; that the Supreme Court affirmed their judgment and reasoning; and that only two justices (Ginsburg and Sotomayor) adopted the (clearly wrong) position that a for-profit corporation is never a person capable of an exercise of religion within the meaning of RFRA. LCCHR’s claim that Gorsuch’s legal reading enables employers “to block employees’ insurance coverage of birth control” also misses the elementary point that the Supreme Court and the Tenth Circuit, faithfully applying the RFRA test, recognized that the government had ways of providing such access that didn’t dragoon religious objectors.​

LCCHR contends that in Little Sisters of the Poor v. Burwell Gorsuch “joined a dissent that argued that the simple act of filling out an opt-out from constitutes a substantial burden on religious exercise.” Wrong. What the dissent argued, correctly, is that subjecting someone to massive fines for refusing to execute a document in violation of her religious beliefs imposes a substantial burden on her religious exercise:

When a law demands that a person do something the person considers sinful, and the penalty for refusal is a large financial penalty, then the law imposes a substantial burden on that person’s free exercise of religion. All the plaintiffs in this case sincerely believe that they will be violating God’s law if they execute the documents required by the government. And the penalty for refusal to execute the documents may be in the millions of dollars. How can it be any clearer that the law substantially burdens the plaintiffs’ free exercise of religion?

LCCHR complains that in Planned Parenthood Ass’n of Utah v. Herbert Gorsuch “dissented from the majority’s decision to keep in place a preliminary injunction that stopped the state of Utah from blocking access to health care and education for thousands of Planned Parenthood’s patients.” But (as I explain more fully in point 3 here), the case involved discontinuing taxpayer funding of Planned Parenthood, not “blocking access to health care and education”; the district court had denied Planned Parenthood’s request for a preliminary injunction, only to be overturned by a Tenth Circuit panel; and the narrow legal objections that Gorsuch raised were over the panel’s departure from circuit practice on the standard of review and burden of proof.

“LGBT Rights”: LCCHR repeats its false claim that Gorsuch, in a 2005 National Review article, “expressed disdain for those seeking to use the courts to enforce their rights under the law.” (See my Part 1 post, section on “Discrimination Claims.”) It further falsely claims that Gorsuch “specifically criticized LGBT Americans who have relied on federal courts in their quest for equality.” No, Gorsuch cited “gay marriage” as an example of the “overweening addiction” of “American liberals” to “the courtroom as the place to debate social policy.”

LCCHR also charges that the “rationale [Gorsuch] employed in the Hobby Lobby case—a license to discriminate for private corporations—has also been used by several states to justify discrimination against LGBT Americans.” But Gorsuch didn’t “employ” a “rationale” in Hobby Lobby, nor did he confer “a license to discriminate.” He enforced the religious-liberty rights that Congress recognized in RFRA. It would seem that it’s LCCHR that is guilty of “express[ing] disdain for those seeking to use the courts to enforce their rights under law” as well as for those seeking to have their religious-liberty rights protected by state legislation.

LCCHR complains that in Druley v. Patton Gorsuch “voted to reject a claim by a transgender woman [prisoner] who alleged that her constitutional rights were violated when she was denied medically necessary hormone treatment and the right to wear feminine clothing.” But the unanimous opinion that Gorsuch joined straightforwardly relied on three circuit precedents (each of which had at least two Democratic appointees on the unanimous three-member panel) and on the district court’s determination that the hormone treatment was not medically necessary.

“Police Misconduct”: LCCHR complains of a single ruling by Judge Gorsuch, in Wilson v. City of Lafayette, but fails to note that Obama appointee Scott M. Matheson Jr. joined Gorsuch’s opinion in its entirety. LCCHR also gets the basic holding of the case wrong. Gorsuch did not conclude that the officer’s use of force “was reasonable because the young man was fleeing arrest.” Rather, applying the long-established test for qualified immunity, he concluded that a person who is actively resisting arrest had no “clearly established right” not to be tased

This Day in Liberal Judicial Activism—February 16

by Ed Whelan

2016—Harry Reid, D-Fantasyland. In an op-ed in the Washington Post opposing the Senate Republican strategy to keep open through the November 2016 elections the Supreme Court vacancy resulting from Justice Scalia’s death, Democratic leader Reid claims that Senate Democrats “always guaranteed Supreme Court nominees a fair hearing and a floor vote.”

Yes, believe it or not, that’s the same Reid who, as Senate minority leader in 2006, voted to support an attempt to filibuster the nomination of Justice Alito (and thus prevent a floor vote). That filibuster attempt won the support of 25 Democratic senators (a majority of the caucus), including Barack Obama, Joe Biden, Hillary Clinton, Patrick Leahy, Chuck Schumer, and Dick Durbin.


Left-Wing Letter Against Gorsuch—Part 1

by Ed Whelan

The Leadership Conference on Civil and Human Rights and a collection of other left-wing self-styled “civil and human rights organizations” have sent the Senate their all-too-predictable letter opposing the confirmation of Supreme Court nominee Neil Gorsuch. Their letter is replete with boilerplate blather, but it woefully fails to support their claims.

The lefty groups (which I will refer to collectively as LCCHR) organize their claims about Judge Gorsuch’s record in ten sections. I will address each of these in turn. (I will pass over, at least for now, their last two sections, which complain about some things that happened at the Department of Justice while Gorsuch served in the Associate Attorney General’s office but which simply say that he “should be questioned” to see what role, if any, he had in such matters.)

“Discrimination Claims”: LCCHR claims that Gorsuch’s 2005 National Review article manifested a “hostility to the use of courts by discrimination victims to enforce their rights under the Constitution” (emphasis added). But Gorsuch showed no such hostility. On the contrary, he was simply endorsing the critique made by David von Drehle, a Washington Post columnist and “self-identified liberal,” that American liberals excessively rely on the courts to impose their social agenda. Gorsuch made clear that he was not applying that critique to the “constitutional lawsuits [that] have secured critical civil-rights victories, with the desegregation cases culminating in Brown v. Board of Education topping the list.” And, by its own terms, his critique plainly also did not apply to lawsuits to enforce established rights under the Constitution.

LCCHR cites two of Gorsuch’s opinions, but its accounts of both are grossly inadequate and misleading. In Strickland v. UPS, Gorsuch joined the parts of the panel opinion that held that the plaintiff was entitled to a new trial on her claim that she had been retaliated against for using her rights under the Family and Medical Leave Act. He dissented only from the panel’s ruling that she was also entitled to a new trial on her Title VII sex-discrimination claim, and he did so on the ground (not hinted at, much less disclosed, by LCCHR) that the record showed that the employer mistreated male employees “in very much the same manner” that he mistreated the plaintiff. In other words, the plaintiff offered no evidence that she was being discriminated against on the basis of sex.

The second opinion that LCCHR cites, Weeks v. Kansas, was a short unanimous opinion that involved a straightforward application of circuit precedent. The case did not involve sex discrimination but rather an employer’s alleged unlawful retaliation against an in-house lawyer for her advice concerning two other employees’ claims of unlawful discrimination. Under Tenth Circuit precedent, an in-house lawyer does not engage in “protected opposition to discrimination” when she merely provides legal advice to the employer. Gorsuch’s opinion affirmed the district-court ruling of Judge Carlos Murguia, a Clinton appointee.

“Workers’ Rights”: In Compass Environmental, Inc. v. Occupational Safety & Health Review Comm’n, Gorsuch dissented from a panel ruling upholding a fine imposed against a company for allegedly failing to adequately train a worker who was electrocuted. LCCHR claims that Gorsuch dissented “because he didn’t believe the employer was negligent” (as though he were making some sort of free-form assessment). But, as Gorsuch explains, he dissented on the very narrow ground that the Secretary of Labor failed to present any evidence to satisfy her burden, under Department regulations, of showing that industry norms would have required more training than the worker received. As he points out, the administrative-law judge in the matter “dismissed the citation against [the employer] for exactly this reason.”

LCCHR’s account of TransAm Trucking v. Administrative Review Board badly obscures the legal issue that was the basis for Gorsuch’s dissent. According to LCCHR, Gorsuch “said the [fired trucker] should have followed orders even at the risk of serious injury.” No. What Gorsuch said was that the trucker who “chose … to operate his vehicle in a manner he thought wise but his employer did not” (emphasis in original) could not claim the statutory whistleblower protection extended to those who refuse to operate a vehicle out of safety concerns. As he put it, the company’s decision to fire the trucker under the circumstances may not have been “a wise or kind one.” But “there’s simply no law anyone has pointed us to giving employees the right to operate their vehicles in ways their employers forbid.”

LCCHR doesn’t even bother to try to explain, much less intelligently criticize, Gorsuch’s dissent in NLRB v. Community Health Services. Gorsuch was not objecting to the employees’ eligibility for back pay where their hours had been unlawfully reduced. He was objecting, rather, to the NLRB’s adoption of a “new rule” governing the calculation of that back pay.

“Immigration”: In its discussion of the Tenth Circuit’s en banc ruling in 2007 in Zamora v. Elite Logistics, Inc., LCCHR again does a remarkable job of obscuring what the case was about. When Elite Logistics hired Ramon Zamora, he was a Mexican citizen and a lawful permanent resident of the United States. When Elite later discovered that he was using the same social security number that another employee was using, it gave him ten days to provide documents establishing that he had a right to work in the United States. When he failed to do so, Elite suspended him. When he later provided these documents, it reinstated him, but when he requested an apology, it fired him.

The Tenth Circuit divided evenly, seven to seven, on the question whether Elite was entitled to summary judgment on Zamora’s suspension claim; Gorsuch voted that it was. It ruled by a vote of nine to five, with Gorsuch in the majority, that Elite was entitled to summary judgment on Zamora’s firing claim.

The fact that Gorsuch was part of a seven-judge coalition on one question and a nine-judge coalition on the other defeats any claim that his positions in the case were somehow extreme. Moreover, LCCHR’s effort to draw broader lessons from this case about Gorsuch’s approach to immigration-law issues and “immigration enforcement strategies” mistakes the discrete legal issues that the case presented.

It’s also very odd that LCCHR doesn’t discuss, or even acknowledge, here Gorsuch’s notable rulings in favor of illegal aliens in Gutierrez-Brizuela v. Lynch and De Niz Robles v. Lynch. But I guess that those don’t fit the contrived narrative.