Ed Whelan on the Barrett Nomination


EPPC President Ed Whelan is offering running commentary in support of the confirmation of Judge Amy Coney Barrett to the U.S. Supreme Court. Mr. Whelan, a former law clerk to Justice Antonin Scalia, is a regular contributor to National Review Online’s Bench Memos blog. [Click here to view Mr. Whelan’s full bio and past publications, and to sign up for his email distribution list.]




Selected Publications

Below is an index to a selection of Mr. Whelan’s commentary on the Barrett nomination:

Justice Barrett Would Extend Scalia’s Legacy

September 30, 2020 (link)

“His judicial philosophy is mine too,” declared Amy Coney Barrett of her beloved mentor Antonin Scalia, at the White House ceremony for her nomination to the Supreme Court. Judge Barrett packed a lot of meaning into those few words. Her record, both as a judge and in her earlier career as a distinguished law professor at Notre Dame, shows both her profound commitment to Justice Scalia’s principles of textualism and originalism and her stellar ability to implement them.

As Barrett has explained, “textualism” and “originalism” are essentially two names for the same methodology, one arising in the field of statutory interpretation, the other in constitutional decision-making. The Constitution and statutes are legal texts, and the duty of the judge is to interpret their provisions according to the meaning they bore at the time they were adopted. Rival theories such as purposivism, pragmatism, and living-constitutionalism empower judges to ignore and override legal texts in order to impose their own solutions to the problems of the age.

“Judges are not policymakers,” Barrett explained in her White House remarks, “and they must be resolute in setting aside any policy views they might hold.” Judges have an obligation not to read their own personal convictions into legal texts, she has consistently emphasized, and that obligation is the same whether those convictions derive from their religious beliefs or from any other source.

Textualism and originalism deal with how people actually use language. Barrett has condemned as a canard the widespread view that textualism is literalism. As she notes, Scalia himself, for whom she worked as a Supreme Court law clerk, emphasized that “the good textualist is not a literalist.” Textualism and originalism do not allow legal texts to be read, as Justice Alito memorably objected in a dissent last spring, “as if they were messages picked up by a powerful radio telescope from a distant and unknown civilization.”

Barrett’s textualist criticisms of Chief Justice Roberts mirror Scalia’s. Before she became a judge, Barrett faulted Roberts for his 2012 ruling upholding Obamacare’s individual mandate as a tax rather than as a penalty. In so doing, he “pushed the Affordable Care Act beyond its plausible meaning.” Citing several other of his opinions and votes, she objected more broadly that the chief justice “has not proven himself to be a textualist.” (Her critique has little bearing on the current challenge to the ACA, and, contrary to Democratic rhetoric, there is ample reason to believe that conservative justices will reject that challenge.)

Although you wouldn’t know it from immediate distortions of her position, Barrett also shares Scalia’s embrace of the Court’s long-standing principle of stare decisis—adherence to precedent—on constitutional issues. Under that approach, erroneous precedent is not sacrosanct, but neither should it be overturned simply because it’s wrong. In a lengthy law-review article, Barrett defends the Court’s approach on the ground that “it promotes doctrinal stability while still accommodating pluralism.” As she spells out, a majority’s decision to overrule precedent on a constitutional question requires it to “take account of reliance interests”—that is, the extent to which citizens or government actors have made decisions that rely on that precedent and would be costly to alter—and to explain “why its view is so compelling as to warrant reversal.” Among the justices, only Justice Thomas rejects the Court’s approach: He would overturn a precedent if it’s “demonstrably” erroneous.

Barrett’s clear position in support of conventional stare decisis doctrine somehow hasn’t stopped respected journalists from claiming that her position is akin to Justice Thomas’s and “extreme.” The obvious reason that Barrett’s critics are distorting her position on stare decisis is to stoke alarm over the prospect that she will be part of a majority that will overturn Roe v.Wade. I welcome that prospect and the ensuing restoration of policymaking on abortion to the democratic processes in the states, and I take considerable hope on this matter from Barrett’s embrace of Scalia’s judicial philosophy. But there is nothing in Barrett’s record that speaks specifically to her view of Roe, much less to whether it should be overturned.

In her three years on the Seventh Circuit, Barrett has taken part in three proceedings involving abortion. In two of the proceedings, she voted unsuccessfully to have the full court review panel rulings that invalidated Indiana laws regulating disposal of fetal remains and requiring parental notification, and the opinion she joined expressed doubts about a panel ruling that invalidated another Indiana law prohibiting abortions motivated solely by the race, sex, or disability of the fetus. (The Supreme Court, by a seven-justice majority, overturned the panel ruling on the fetal-remains issue. It sent the parental-notification question back to the Seventh Circuit for further consideration.) In her one panel ruling, she was part of a unanimous majority that applied Supreme Court precedent to allow Chicago to enforce its “bubble zone” ordinance against pro-life sidewalk counselors outside abortion clinics.

Perhaps Barrett’s most impressive opinion as an appellate judge—one that demonstrates her masterful application of originalism—is her dissent last year on an important Second Amendment question. Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. As a convicted felon, he was barred by federal law and Wisconsin law from possessing a firearm. When he argued that the Second Amendment did not allow those laws to be applied against him, the panel majority rejected his claim.

In her dissent, Barrett marshaled and analyzed extensive historical evidence to conclude that, while the Second Amendment allows legislatures to prohibit dangerous people from possessing guns, felons do not lose their right to possess firearms solely because of their status as felons. It’s one thing for the government to conclude categorically that those who have been convicted of violent felonies are dangerous. But it’s quite another to draw that conclusion regarding nonviolent felons (yes, even makers of therapeutic shoe inserts). Neither the federal government nor Wisconsin had shown support for that conclusion. Nor did they in any other way show that Kanter was likely to be dangerous with firearms. Therefore, the Second Amendment, Barrett concluded, did not allow their laws to be applied against him.

The Obama administration’s threat to withhold federal funding from colleges if they did not take more severe measures against students accused of sexual misconduct provided the backdrop for a ruling by Barrett that has earned widespread praise and been cited favorably by courts across the country. Her ruling allowed a Purdue University student who had been suspended for sexual violence to pursue his claim that Purdue, in determining his guilt, deprived him of adequate procedural protections and discriminated against him because he is male.

At Barrett’s confirmation hearing for the Seventh Circuit, Senator Dianne Feinstein infamously insinuated that Barrett’s ardent Catholic faith would prevent her from being an impartial judge: “The dogma lives loudly within you.” But critics of Barrett cannot point to anything in her record that fairly supports that charge. Her opinions are powerfully reasoned and reflect principles of law, not faith.

Strangely enough, those who expressed concerns back in 2017 that Barrett could not separate her faith from her judging relied on an article from her days as a law student in which she (and her co-author, a law professor) argued that trial judges who are faithful to Catholic teaching can’t impose the death penalty and should therefore disqualify themselves from sitting on cases in which they might be required to do so. Removing oneself from ruling on a matter would be a curious way to try to make one’s religious beliefs triumph. Further, Barrett’s article opines that appellate judges affirming death sentences aren’t engaged in what Catholic moral theologians call illicit “formal cooperation” with evil (and that the inquiry into “material cooperation” is “exceedingly difficult”). It turns out that Barrett has sat on two death-penalty cases and ruled in both against blocking the execution, so concerns that she would recuse herself or rule on the basis of Catholic teaching on the death penalty are unwarranted.

As providence might have it, President Trump announced his nomination of Barrett to the Supreme Court on the anniversary of Scalia’s joining the Court in 1986. If all goes smoothly, she will take her own seat on the Court before the end of October. In doing so, Barrett will help extend and entrench Scalia’s great legacy for decades to come.

Liberal Legal All-Stars on Barrett’s ‘Remarkable Intellect and Character’

September 23, 2020 (link)

In 2017, every single Supreme Court law clerk who clerked the same term (October Term 1998) that Amy Coney Barrett clerked for Justice Scalia signed a letter supporting her nomination to the Seventh Circuit. In that letter, the signatories hailed Barrett as a “woman of remarkable intellect and character,” as someone who “conducted herself with professionalism, grace, and integrity” and “was able to work collaboratively with her colleagues (even those with whom she disagreed) on challenging legal questions,” and as “smart, honorable, and fair-minded.”

The signatories include some leading figures in liberal academia: Stanford law school dean Jennifer Martinez, Harvard law professor Noah Feldman, Yale law professor Oona Hathaway, and Stanford law professor Jeffrey Fisher.

To be clear, I am not maintaining that this letter means or even remotely implies that these academics should or will support Barrett if she is nominated to the Supreme Court. Among other things, it’s entirely reasonable to give heavier weight to ideological considerations for a Supreme Court seat, and the letter itself is carefully crafted as only an endorsement for the appellate bench.

That said, the glowing assessments that the signatories offered of Barrett’s intellect and character remain noteworthy. While it’s in theory possible that one of more of the signatories has now developed a different view of Barrett, I’m not aware of any reason why that might be the case.

Slate Hit Piece on Judge Barrett Badly Misfires—Part 1

January 15, 2020 (link)

In this Slate piece yesterday, Mark Joseph Stern fires his ammunition at Seventh Circuit judge Amy Coney Barrett, a leading contender for the next Supreme Court vacancy. Stern manages, however, to get wrong just about everything that matters.

In this post, I’ll address each of the nine cases that Stern invokes in supposed support of his sweeping mischaracterizations of Barrett’s record. In a second post, I’ll have some further comments on those mischaracterizations.

Let’s start with the cases in which Stern makes glaring errors:

Schmidt v. Foster: Stern complains that Barrett “wrote (again in dissent) that a criminal defendant did not have a right to counsel when a judge grilled him on the details of his crime.” In fact, Barrett never reached the question whether the defendant, Schmidt, had a right to counsel, and expressly left open that, if that question were actually teed up for decision, he might: “Perhaps the right to counsel should extend to a hearing like the one the judge conducted in Schmidt’s case.” (Slip op. at 44.)

What Stern completely misses is that Schmidt’s case involved his application for a writ of habeas corpus—a challenge, that is, to his state-law conviction for murder—not a direct appeal of a federal conviction. The relevant question in addressing Schmidt’s habeas application was whether the judge’s decision to question Schmidt without counsel in a pretrial hearing involved an unreasonable application of clearly established Supreme Court precedent. Barrett explains at length that “[n]o Supreme Court precedent addresses the question presented by this case: whether a defendant has the right to counsel when testifying before a judge in a nonadversarial proceeding.” Schmidt’s habeas petition therefore failed.

Stern also somehow misses that the en banc Seventh Circuit, by a vote of 7 to 3 (with Barrett in the majority), reversed the panel majority’s decision and adopted the position in Barrett’s dissent.

Given Stern’s highly selective practice of citing judges who disagree with Barrett when he thinks it helps his case, I’ll note that the district judge (Charles N. Clevert Jr.) who denied Schmidt’s habeas petition was a Clinton appointee and that the two judges in the panel majority were liberal Democratic appointees Diane Wood and David Hamilton. (Wood and Hamilton were joined in the en banc dissent by Ilana Rovner, who, though appointed by President George H.W. Bush, is no one’s idea of a judicial conservative.)

Ramos v. Barr: Stern faults Barrett for “cast[ing] the deciding vote permitting the deportation of a lawful permanent resident who resided in the U.S. for 30 years, even though—as the dissent pointed out—the law banishing him may violate equal protection.” (Emphasis added.) That curious last phrase is a tell. The dissenter (the liberal Hamilton) did indeed offer the very weak assessment that Ramos’s equal-protection claim “might be right” and that “it is not impossible” that he might prevail on it. But that assessment validates the majority’s conclusion (in a five-sentence order) that Ramos had failed to demonstrate the “substantial likelihood of success on the merits” required for a stay of his deportation.

Stern leaves the impression that Ramos was deported without ever having his equal-protection claim addressed. He somehow overlooks that several months later a unanimous merits panel rejected Ramos’s equal-protection claim (and cited decisions of the Second Circuit and the Ninth Circuit in doing so).

Kanter v. Barr: In a nasty swipe, Stern writes: “If Barrett has little sympathy for most powerless people, there is one class she favors: individuals convicted of a felony who seek to possess firearms.” He complains that Barrett’s dissent in this case “was larded with historical references and jabs at other judges for treating the Second Amendment as a ‘second-class right,’” and he charges that her dissent “was an obvious audition for the Supreme Court.”

Barrett’s dissent in fact affirms the proposition that “the state can take the right to bear arms away from a category of people that it deems dangerous”—a category that, she notes, is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” What the state can’t do, she concludes from her lengthy historical analysis, is deprive felons of their Second Amendment rights “solely because of their status as felons.”

Stern conveniently omits to mention that the felon in this case who was seeking restoration of his right to possess a firearm had committed the offense of—lock your doors now!—falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and of billing Medicare on that basis.

To contend that Barrett’s dissent “was larded with historical references” is a strangely pejorative way to refer to her impressive historical analysis, which runs over some twenty pages. I have no idea what “jabs at other judges” Stern is imagining. In her only reference to a “second-class right,” Barrett is quoting Justice Alito’s plurality opinion (more precisely, from a portion of his lead opinion that garnered a plurality rather than from the majority portions) in the Second Amendment ruling in McDonald v. City of Chicago.

Planned Parenthood v. Commissioner: Stern contends that Barrett joined a dissent by Judge Frank Easterbrook “[1] suggesting that states may prohibit women from terminating a pregnancy because of the fetus’ race, sex, or disability [and] [2] suggesting that states may enact total bans on pre-viable abortions in contradiction of Supreme Court precedent.

The first supposed suggestion is a stretch: Easterbrook argued that the Supreme Court’s precedents “did not address” the validity of an anti-eugenics law. The second supposed suggestion is an outright falsehood. The case had nothing to do with a “total ban.” (Stern also misses that Easterbrook concurred in the denial of en banc rehearing on this issue.)

Planned Parenthood v. Box: Entangled in his own confusion, Stern asserts that “Barrett also voted to vacate a decision that would’ve forced minors to notify their parents before undergoing an abortion under all circumstances, a direct violation of Supreme Court precedent.” I gather that he means roughly the opposite of what he says: in other words, he is objecting that Barrett supposedly voted to vacate a decision that relieved minors of a parental-notification requirement.

What Barrett did do was vote to rehear en banc a panel decision (liberal majority of Hamilton and Rovner) that barred an Indiana law from ever taking effect. That law, enacted in 2017, provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.”

Stern is plainly wrong to say that the law required parental notification for a minor’s abortion “under all circumstances.” For the same reason, he’s wrong to say that the law was “a direct violation” of the Supreme Court precedent, Bellotti v. Baird (1979), that he links to. Indeed, the panel majority expressly disclaimed reliance on Bellotti: “Because we decide this appeal based only on an application of Casey’s undue burden standard, we need not and do not decide whether Bellotti applies to all parental notice requirements.” (He’s also wrong to say that the law required notification by the minor.)

Now let’s look at some of Stern’s somewhat more subtle errors and distortions:

McCottrell v. White: Stern’s lead claim in his piece is that Barrett’s “troubling dissent” in this case somehow “signaled her eagerness to weaken constitutional protections for inmates injured by prison guards.” In this case, two inmates sued two prison guards for injuries they suffered when the guards discharged their shotguns over a crowded prison dining hall. The legal question on appeal was whether the district court properly granted summary judgment in favor of the guards on the inmates’ claim that the guards violated their Eighth Amendment right against cruel and unusual punishments.

Applying settled Supreme Court precedent, Barrett explained that the inmates, in order to establish an Eighth Amendment violation for the use of excessive force, had to show that the guards acted “maliciously and sadistically.” On her understanding of the briefing, the inmates “did not argue—and had no evidence to prove—that the [guards] intentionally hit anyone.”

There is a lot of back and forth between the majority and Barrett, and I can’t possibly do justice to it concisely, but the relevant point here is that their differences turned heavily on such highly particularistic matters as whether there was any plausible evidence that the guards fired directly toward the inmates rather than into the ceiling. Barrett’s dissent doesn’t undertake to revise “constitutional protections”; she and the majority simply disagree on how those protections apply in this case.

Stern posits that the fact that the inmates were struck by buckshot—or that buckshot “tore through their bodies,” in his more colorful rendering—is evidence that the guards shot directly into the crowd. But the majority itself acknowledges that their injuries were compatible with ricochet from the ceiling. Stern also contends that Barrett “blithely dismiss[es] evidence that ‘the officers lied in their affidavits about the direction of the shots.’” But Barrett’s point is that the inmates “have no evidence that the officers shot into the crowd” and thus can’t defeat summary judgment.

Stern selectively assesses Barrett’s rulings by looking to see who she agreed or disagreed with, but he doesn’t note that the district judge who granted summary judgment in favor of the guards was Amy J. St. Eve. In her long tenure as a district judge, St. Eve earned a reputation as “a middle-of-the-road judge with no bias towards either conservative or liberal judicial philosophies.” That helps explain why home-state Democratic senators Dick Durbin and Tammy Duckworth supported President Trump’s nomination of her to the Seventh Circuit and why the Senate unanimously confirmed her nomination.

Alvarenga-Flores v. Sessions: Stern faults Barrett for her majority decision “permitting the deportation of an immigrant to El Salvador, where he may be tortured and killed by gangs, because of ‘inconsistencies’ in his testimony.” But it was the immigration judge and the Board of Immigration Appeals, not Barrett, who concluded that the immigrant lacked credibility. As Barrett explains, the reviewing court is obligated to provide a “deferential standard of review” under which the immigration judge and the Board need only provide “specific reasons” for his credibility determination. Barrett faults the dissenter (an Obama district-judge appointee sitting by designation) for failing to apply that deferential standard.

Yafai v. Pompeo: Stern objects to Barrett’s ruling “approving the denial of a visa to the Yemeni wife of a U.S. citizen—even though, as the dissent put it, the consular officer may have merely relied on a ‘stereotypical assumption’ that Yeminis [sic] commit crimes.”

But what was at issue in the case was whether the doctrine of consular nonreviewability—that is, the general rule that judges can’t review visa decisions made by consular officials abroad—allowed an exception in this case. As Barrett explains, the Supreme Court has recognized a limited exception when a visa denial implicate a constitutional right of an American citizen. But under that limited exception, the visa denial must be respected if the reason given is “facially legitimate and bona fide.” Here, on the assumption that the exception applied, the challenge failed because the consular officer’s decision was facially legitimate and bona fide. Barrett explains how the dissent’s proposed additional hurdle—proof that the official adequately considered the evidence in the visa application—contradicts Supreme Court precedent.

As Stern points out, the en banc Seventh Circuit denied rehearing of Barrett’s ruling. The vote was 8 to 3 (yes, the same liberal trio of Wood, Hamilton, and Rovner in dissent).

Sims v. Hyatte: Stern asserts that Barrett in dissent “voted to uphold the conviction of Mack Sims, who was found guilty of attempted murder on the basis of eyewitness testimony secretly procured through hypnosis.” (Emphasis added.) As with Schmidt v. Foster, Stern completely obscures that the case involved Sims’s habeas petition.

Thus, while Barrett states that she thinks that “the undisclosed evidence of [the eyewitness’s] hypnosis constitutes a Brady violation”—something Stern doesn’t acknowledge—she determines that “it was neither contrary to, nor an unreasonable application of, clearly established federal law for the Indiana Court of Appeals to conclude otherwise.”

Slate Hit Piece on Judge Barrett Badly Misfires—Part 2

January 17, 2020 (link)

In my Part 1 post, I showed that Mark Joseph Stern, in his Slate article attacking Seventh Circuit judge Amy Coney Barrett, badly messes up his account of the nine cases that he invokes against Barrett. In this post, I will offer some broader criticisms of his hit piece.

In her two-plus years on the Seventh Circuit, Judge Barrett has taken part in nearly 200 reported decisions and has written nearly 60 opinions. That’s on top of the larger number of unpublished decisions that she has taken part in. Any serious review of Barrett as a judge would attempt to take account of her whole record.

Had Stern made any effort to do so, he would have encountered much that would complicate his simplistic flawed narrative. To cite just a few examples:

Barrett joined an opinion by liberal Obama appointee David Hamilton (Gonzalez Ruano v. Barr) that held that an alien had demonstrated statutory eligibility for asylum. She also wrote an opinion (Ruderman v. Whitaker), joined by liberal Clinton appointee Diane Wood, that rejected the Board of Immigration Appeal’s conclusion that an alien was statutorily inadmissible. So much for Stern’s claim that Barrett “consistently rules against immigrants seeking relief from deportation.”

Barrett joined an opinion (Price v. City of Chicago—see my fuller discussion here) that ruled that Chicago’s “bubble zone” ordinance against anti-abortion sidewalk counselors did not violate the counselors’ First Amendment rights. That rather complicates Stern’s baseless insinuation that Barrett’s judging is warped by pro-life sentiments.

As for Stern’s charge—based on zero actual evidence—that Barrett “has little sympathy for most powerless people”: Barrett has ruled for “powerless people” on lots of occasions, not because she was improperly indulging her “sympathy,” but because she was applying the law impartially.

Barrett has voted to reverse the Social Security Administration’s denial of benefits in several cases. See, e.g., Derry v. Berryhill, Akin v. Berryhill, Thompson v. Berryhill, and Kaminski v. Berryhill.

She wrote an opinion (Goplin v. WeConnect) that denied an employer’s effort to compel arbitration; the employee in whose favor she ruled alleged violations of the Fair Labor Standards Act and sought to pursue a class action under state law.

She wrote an opinion (United States v. Watson), joined by Hamilton, that held that the police violated a felon’s Fourth Amendment rights when they blocked his car from leaving a parking lot (and found that he had a gun). She wrote another opinion (United States v. Terry), joined by Wood, that held that DEA agents executing an arrest warrant for conspiracy to possess and distribute heroin violated the suspect’s Fourth Amendment rights when they concluded that a woman who answered the door at the suspect’s apartment while wearing a bathrobe had authority to consent to a search of the premises.

She voted to reverse summary judgment and deny qualified immunity in a case (Howard v. Koeller) involving alleged retaliation by a prison guard. She also voted to deny qualified immunity (Broadfield v. McGrath) on a claim that jail officials used excessive force against a detainee. She also joined an opinion by Judge Hamilton (Wallace v. Baldwin) that, reversing the district court, held that a prisoner was entitled to pursue a claim that his prolonged isolation in solitary confinement violated his constitutional rights. So much for Stern’s ill-founded claims that Barrett has an “eagerness to weaken constitutional protections for inmates injured by prison guards” and a “zeal to protect these guards from consequences.”

She has voted to reverse several district-court judgments that dismissed section 1983 claims against state officers for alleged civil-rights violations. See, e.g., Miller v. Larson, Walker v. Price (opinion by Barrett), Brooking v. Branham, and Phillips v. Illinois Department of Finance.

Yes, this is the judge (and longtime law professor) who Stern, unembarrassed by his most extravagant rhetoric, alleges “has spent her career opposing the very principles of justice and equality for which [Justice] Ginsburg stands.” Ridiculous.

Lest anyone be concerned by this litany of rulings: On my review of them, I think that Barrett probably got them all right. More broadly, I believe that she, like many other of the rumored leading candidates, would be an outstanding nominee for a Supreme Court vacancy.

NWLC’s Absurd Attack on Judge Barrett

October 19, 2020 (link)

When a male guard at a county jail, in defiance of the county’s clear policies, repeatedly raped a female inmate, was he acting within the scope of his employment such that he is entitled under Wisconsin law to be indemnified by the county for the damages award that the inmate receives against him?

Litigation makes odd bedfellows. So it is that the National Women’s Law Center, a feminist group dedicated to “fight[ing] for gender justice,” insists that the male prison guard was acting within the scope of his employment when he raped the inmate. For that was the only way to ensure that the inmate was able to recover the $6.7 million award that she received against him. And, much more importantly, after all the other attacks on Supreme Court nominee Amy Coney Barrett have fizzled out, NWLC now desperately seizes on that claim as a way to bash her.

There are lots of good reasons why the opinion rendered more than two years ago in Martin v. Milwaukee County was never mentioned at Judge Barrett’s confirmation hearing last week and never made it onto the hit lists that Barrett’s opponents have been compiling ever since she rose to national attention during her Seventh Circuit confirmation battle three years ago.

In that case, Barrett joined a unanimous panel opinion by Judge Daniel Manion that ruled that the county was entitled to judgment as a matter of law that the guard’s rapes “were outside the scope of employment and not susceptible to statutory indemnification”—in other words, that the district court erred in allowing the jury to decide this question.

Given the misuse that NWLC and others are trying to make of this case, it’s worth noting that the third judge on the unanimous panel was liberal Clinton appointee Robert W. Gettleman.  (Gettleman, a district judge sitting on the panel by designation, has described liberal lion Abner Mikva as “a friend and inspiration to me since I first met him in the late 1960s.”) Further, when the plaintiff requested en banc review of the panel’s decision, not a single judge on the Seventh Circuit called for a vote on the request.

On the legal question in this case, which is a question of Wisconsin law, here’s an extensive excerpt from the panel ruling:

Courts have phrased the scope[-of-employment] test for § 895.46 [the indemnification statute] in slightly different but compatible ways. We distill the test to its essence. An act is not in the scope unless it is a natural, not disconnected and not extraordinary, part or incident of the services contemplated. An act is not in the scope if it is different in kind from that authorized, far beyond the authorized time or space, or too little actuated by a purpose to serve the employer. But an act is in the scope if it is so closely connected with the employment objectives, and so fairly and reasonably incidental to them, that it may be regarded as a method, even if improper, of carrying out the employment objectives. We must consider the employee’s intent and purpose, in light of subjective and objective circumstances….

No reasonable jury could conclude the sexual assaults were natural, connected, ordinary parts or incidents of contemplated services; were of the same or similar kind of conduct as that Thicklen was employed to perform; or were actuated even to a slight degree by a purpose to serve County. No reasonable jury could conclude the sexual assaults were connected with the employment objectives (much less closely connected) or incidental to them in any way. No reasonable jury could regard the sexual assaults as improper methods of carrying out employment objectives. The evidence negates the verdict.

Uncontested evidence at trial demonstrated County thoroughly trained Thicklen not to have sexual contact with inmates. County expressly forbade him from having sexual contact with an inmate under any circumstances, regardless of apparent consent. County’s training warned him that such sexual contact violates state law and the Sheriff’s Office’s mission. County not only instructed him not to rape inmates; it also trained him how to avoid or reject any opportunity or invitation to engage in any sort of sexual encounter with inmates. For example, if an inmate “comes on” to him, he should tell the inmate the behavior is inappropriate, discipline the inmate, and report the incident to a supervisor. Thicklen even answered quizzes demonstrating his understanding. Martin presented no evidence at trial that this training was deficient or that Thicklen did not understand it. Martin failed to offer any evidence the sexual assaults were natural, connected, ordinary parts or incidents of the services contemplated. She presented no evidence from which a reasonable jury could conclude these sexual assaults were similar to guarding inmates. And she presented no evidence from which a reasonable jury could conclude the sexual assaults were actuated in any way by a purpose to serve County.

In short, NWLC’s charge that this opinion is evidence of Judge Barrett’s supposed “extremist beliefs” and “completely disregards the lived experiences of millions of sexual assault survivors” is baseless.

Judge Barrett on Textualism and Originalism

September 25, 2020 (link)

Judge Amy Coney Barrett embraces the twin interpretive methodologies of textualism and originalism that Justice Scalia (for whom she clerked) espoused, and she has displayed a thorough and sophisticated understanding of those methodologies.

As I understand Judge Barrett’s use of the terms (which is the same as my own), textualism and originalism are essentially two names for the same methodology. The term textualism arose in the statutory context to counter purposivism, while the term originalism arose in the constitutional context to counter living-constitutionalism (and other non-interpretive methods of inventing constitutional meaning). As Barrett explained last year:

Originalists, like textualists, care about what people understood words to mean at the time that the law was enacted because those people had the authority to make law. They did so through legitimate processes, which included writing down and fixing the law. So “[e]ach textual provision must necessarily bear the meaning attributed to it at the time of its own adoption.” And, as with statutes, the law can mean no more or less than that communicated by the language in which it is written. Just as “when a precise statute seems over- or underinclusive in relation to its ultimate aims[,] . . . [a textualist] hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes,” so too an originalist submits to the precise compromise reflected in the text of the Constitution. That is how judges approach legal text, and the Constitution is no exception. [Footnote citations omitted.]

Consistent with the dissents in the Supreme Court’s opinion last term in the Title VII case (Bostock v. Clayton County), Barrett emphasizes that textualism is not literalism and that the distinction between the two concepts “is fundamental to the validity of the textualist enterprise.” She quotes with approval one scholar’s concise explanation of the difference:

Literalism should be distinguished from the genuine search for textual meaning based on the way people commonly understand language. Literalism is a kind of “spurious” textualism, unconcerned with how people actually communicate—with how the author wanted to use language or the audience might understand it. It holds up the text in isolation from actual usage.

In a law-review article from 2016 (“Congressional Originalism,” co-authored with John Copeland Nagle), Barrett explains that originalism “is characterized by a commitment to two core principles”:

First, the meaning of the constitutional text is fixed at the time of its ratification. Second, the historical meaning of the text “has legal significance and is authoritative in most circumstances.” Commitment to these two principles marks the most significant disagreement between originalists and their critics. A nonoriginalist may take the text’s historical meaning as a relevant data point in interpreting the demands of the Constitution, but other considerations, like social justice or contemporary values, might overcome it. For an originalist, by contrast, the historical meaning of the text is a hard constraint. [Footnote citations omitted.]

Judge Barrett on Stare Decisis

September 26, 2020 (link)

In her previous career as a law professor, Judge Amy Coney Barrett wrote extensively and intelligently on the topic of stare decisis (adherence to precedent).

In “Precedent and Jurisprudential Disagreement,” Barrett responds to academics who “have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.” In particular, she argues that “one virtue of the weak presumption is that it promotes doctrinal stability while still accommodating pluralism on the Court.” She also argues that stare decisis is just one of many features of our judicial system that promotes doctrinal stability.

Look for Barrett’s critics to obscure the fact that Barrett is defending the Court’s existing “weak presumption” of stare decisis, not calling for a weaker version.

I’ll highlight here passages of the article that are most likely to be of interest to those assessing Barrett’s candidacy for the Supreme Court.

Barrett summarizes her “thesis that, at least in controversial constitutional cases, an overlooked function of stare decisis is mediating jurisprudential disagreement”:

On the one hand, [the weak presumption of stare decisis] avoids entrenching particular resolutions to methodological controversies. This reflects respect for pluralism on and off the Court, as well as realism about the likelihood that justices will lightly let go of their deeply held interpretive commitments. On the other hand, placing the burden of justification on those justices who would reverse precedent disciplines jurisprudential disagreement lest it become too disruptive. A new majority cannot impose its vision with only votes. It must defend its approach to the Constitution and be sure enough of that approach to warrant unsettling reliance interests. Uncertainty in that regard counsels retention of the status quo.

She develops the same point more fully later:

In hot-button cases where differences in constitutional philosophy are in the foreground, the preference for continuity disciplines jurisprudential disagreement. Absent a presumption in favor of keeping precedent, and absent the system of written opinions on which stare decisis depends, new majorities could brush away a prior decision without explanation. If only the votes mattered, and neither deference to precedent nor a reason for departing from it was required, a reversal would represent an abrupt act of will more akin to a decision made by one of the political branches. But in a system of precedent, the new majority bears the weight of explaining why the constitutional vision of their predecessors was flawed and of making the case as to why theirs better captures the meaning of our fundamental law. Justifying an initial opinion requires reason giving, particularly if the majority is challenged by a dissent. Justifying a decision to overrule precedent, however, requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps. Stare decisis protects reliance interests by putting newly ascendant coalitions at an institutional disadvantage. It doesn’t prohibit them from rejecting a predecessor majority’s methodological approach in favor of their own, but it makes it more difficult for them to do so. The doctrine thus serves as an intertemporal referee, moderating any knee-jerk conviction of rightness by forcing a current majority to advance a special justification for rejecting the competing methodology of its predecessor. It also channels disagreements into the less disruptive approach of refusing to extend precedent—an approach that maintains better continuity with the past than does the abrupt turn of getting rid of it altogether.

Barrett addresses the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. She argues that the Court’s longstanding “weak presumption” that she is defending “protects institutional legitimacy and reliance interests more than is commonly supposed.* Citing Yale law professor Akhil Amar, she questions the proposition that the Court “should make decisions with an eye toward its reputation.” And even if it should, she observes that “there is little reason to think that reversals would do it great damage.” After all, stare decisis

is not a hard-and-fast rule in the Court’s constitutional cases, and the Court has not been afraid to exercise its prerogative to overrule precedent…. If anything, the public response to controversial cases like Roe reflects public rejection of the proposition that stare decisis can declare a permanent victor in a divisive constitutional struggle….

The “protecting public confidence” argument seems to assume that the public would be shaken to learn that a justice’s judicial philosophy can affect the way she decides a case and that justices do not all share the same judicial philosophy. This, however, is not news to the citizenry.

On the specific goal of advancing legitimacy, Barrett further states that she “tend[s] to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it. That itself serves an important rule-of-law value.”

As for the claim by some critics that “reversals occur because new appointments make new political preferences dominant”:

It is surely true that reversal is more likely to result from a new justice’s heretofore unexpressed opinion than from an existing justice’s change of mind. But the criticism is framed to suggest that overruling is driven by—and therefore tainted by—partisan political preferences. To be sure, partisan politics are not a good reason for overturning precedent. But neither are they a good reason for deciding a case of first impression. One who believes that an overruling reflects votes cast based on political preference must believe that all cases (or at least all the hot-button ones) are decided that way, for there would be no reason for politics to taint reversals but not initial decisions. If all such decisions are based on politics, there is no reason why the precedent—itself thus tainted—is worthy of deference. (Nor, for that matter, would there be reason to accept the legitimacy of judicial review.) Basic confidence in the Supreme Court requires the assumption that, as a general matter, justices decide cases based on their honestly held beliefs about how the Constitution should be interpreted. If one is willing to make that assumption about the decision of cases of first impression, one should also be willing to make it about the decision to overrule precedent. A change in personnel may well shift the balance of views on the Court with respect to constitutional methodology. Yet the fact that a reversal flows from a disagreement between the new majority and its predecessors about constitutional methodology does not itself render the overruling illegitimate, as criticisms of overruling sometimes suggest. Reversal because of honest jurisprudential disagreement is illegitimate only if it is done without adequate consideration of, and due deference to, the arguments in favor of letting the precedent stand.

Barrett also discusses “so-called superprecedents” like Brown v. Board of Education—“cases that no justice would overrule, even if she disagrees with the interpretive premises from which the precedent proceeds.” The force of these superprecedents, she argues, come not “from any decision by the Court about the degree of deference they warrant” but rather from the fact that there is an overwhelming public consensus supporting them. Barrett notes that “[s]cholars … do not put Roe on the superprecedent list because the public controversy about Roe has never abated.”

In “Originalism and Stare Decisis,” written after Justice Scalia’s death, Barrett explores Justice Scalia’s approach to precedent and the question whether stare decisis is compatible with originalism. She disputes the claim that originalism without stare decisis would produce chaos: “This threat is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.” In particular, a “combination of rules—some constitutional, some statutory, and some judicially adopted—keep most challenges to precedent off the Court’s agenda.”

* The original version of this post did not frame this point as well as it should have.

Ruth Marcus Badly Distorts Judge Barrett on Stare Decisis

September 26, 2020 (link)

In her Washington Post column, Ruth Marcus grossly misrepresents Judge Amy Coney Barrett’s academic writing on the principle of stare decisis (adherence to precedent).

On constitutional questions, the Supreme Court has adopted what Barrett labels a “weak presumption of stare decisis”: Precedent can be overruled (stare decisis is not absolute), but it’s not enough that the Court concludes that the precedent is wrong. Rather:

Justifying a decision to overrule precedent … requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.

It is this approach that Barrett is defending.

Marcus is therefore dead wrong when she claims that Barrett’s position is that “she would not hesitate to jettison decisions with which she disagrees.” She is dead wrong to contend that that Barrett’s view—defending the Court’s existing practice—is “extreme.”

Marcus clips out of context this statement by Barrett: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” As my fuller account of Barrett’s article shows, Barrett offers this (tentative) statement in addressing the narrow question whether the Court’s existing practice is best defended on the ground that it advances the Court’s legitimacy. The entire point of her article is to argue that the Court’s practice is better defended on the separate ground that it “promotes doctrinal stability while still accommodating pluralism on the Court.”

Addendum (9/27): On context, I’d add/clarify that Barrett in that portion of her article (pp. 1725-30) is specifically addressing the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. Barrett argues that the Court’s longstanding “weak presumption” that she is defending “protects institutional legitimacy and reliance interests more than is commonly supposed.”

Another Misreading of Barrett on Precedent

September 27, 2020 (link)

In this essay, Garrett Epps contends that Judge Amy Coney Barrett “may very well provide another vote for Thomas-style radicalism” on stare decisis—in other words, that she might be ready to overturn a precedent on the sole ground that she believes that it was wrongly decided. Epps badly misrepresents Barrett’s record and has no foundation for his claim.

For starters, Epps entirely neglects Barrett’s 2013 law-review article (which I excerpted here) in which she vigorously defends the Court’s traditional approach to stare decisis on constitutional issues on the ground that that approach “promotes doctrinal stability while still accommodating pluralism on the Court.” As she states in that article:

Justifying a decision to overrule precedent … requires both reason giving on the merits and an explanation of why its view is so compelling as to warrant reversal. The need to take account of reliance interests forces a justice to think carefully about whether she is sure enough about her rationale for overruling to pay the cost of upsetting institutional investment in the prior approach. If she is not sure enough, the preference for continuity trumps.

Epps instead relies on a 2017 article by Barrett. But his account of that article (which he doesn’t link to) requires a huge imaginative leap on his part. Although you wouldn’t know it from his account, Barrett in that article explores Justice Scalia’s approach to precedent. She argues that Scalia’s record illustrates that the clash between originalism and stare decisis “is vastly overstated, because no originalist Justice will have to choose between his principles and the kind of chaos critics predict.”

Nowhere in that 2017 article does Barrett retreat one inch from what she wrote in her 2013 article. Nowhere does she endorse, or even hint at endorsing, Justice Thomas’s approach.

Epps is alarmed by the fact that Barrett argues that originalism “can be understood as a quintessentially precedent-based theory, albeit one that does not look primarily to judicial decisions as its guide.” As she explains more fully:

Originalists maintain that the decisions of prior generations, cast in ratified text, are controlling until lawfully changed. The contours of those decisions are typically discerned by historical sources. For example, the meaning of the original Constitution may be gleaned from sources like the Constitutional Convention, the ratification debates, the Federalist and Anti-Federalist Papers, actions of the early Congresses and Presidents, and early opinions of the federal courts. Originalism thus places a premium on precedent, and to the extent that originalists reject the possibility of deviating from historically settled meaning, one could say that their view of precedent is particularly strong, not weak as their critics often contend.

Epps somehow imagines that this account of originalism has some sort of implications for how an originalist justice should deal with judicial precedent that is unsound on originalist grounds. But all that Barrett is providing is the originalist benchmark for determining whether a judicial ruling is wrong. She presents the competing positions of originalist scholars on how to deal with non-originalist precedent, but she nowhere states that she thinks that the fact that a ruling can’t be defended on originalist grounds means that it should be overruled. Again, such a position is flatly contrary to her 2013 article.

Another Distorted Account of Barrett’s View on Stare Decisis

September 29, 2020 (link)

The rank distortions of Judge Amy Coney Barrett’s entirely conventional view on stare decisis (adherence to precedent) are already getting tiresome, but let’s give it another go.

In New York magazine, law professor Barbara McQuade contends that Judge Barrett “is right of Antonin Scalia.” In particular, she argues that whereas Scalia “was willing to allow case precedent to influence what he believed to be the original intent of the framers of the Constitution, Barrett makes no such concession.”

If you suspect that someone who thinks that Scalia looked to “original intent” (rather than “original meaning”) might not have a full grasp of his jurisprudence, you’d be right.

McQuade first complains that Barrett “wrote in a 2013 law-review article that stare decisis — the principle that courts should follow prior case decisions — is a ‘soft rule,’ not an ‘inexorable command,’ with ‘constitutional cases the easiest to overrule.’” But that’s an elementary account of stare decisis that Scalia and every current Supreme Court justice agrees with. Indeed, Barrett’s actual sentence in that article reads:

In the Supreme Court, stare decisis is a soft rule; the Court describes it as one of policy rather than as an “inexorable command.”

Barrett properly cites the Court’s ruling in Payne v. Tennessee (1991) for that basic proposition. Did McQuade edit out the passage I’ve italicized in order to dupe her readers? Or does she not know the basics of stare decisis?

McQuade then says that this sentence from Barrett’s article “should shake fear into” supporters of Roe v. Wade: “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.”

Let me be clear that I hope and expect that Barrett will vote to overturn Roe. But that sentence, clipped out of its context, sheds no light on the question. To repeat what I explained in my critique of Ruth Marcus’s column and in this tweet thread, the entire thrust of Barrett’s article is to defend the Court’s traditional principle of stare decisis on constitutional issues—which requires a “compelling” reason to overturn precedent and which “need[s] to take account of reliance interests”—on the ground that it “promotes doctrinal stability while still accommodating pluralism on the Court.”

Barrett goes on to address the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. She argues that the Court’s longstanding approach “protects institutional legitimacy and reliance interests more than is commonly supposed.” It’s in the narrow context of addressing legitimacy arguments that Barrett offers the tentative (“I tend …”) observation that somehow has McQuade quaking.

At the end of her essay, McQuade pieces together words from the conclusion of a 2017 article by Barrett to suggest that she would be “even less bound to precedent” than Scalia. But what Barrett argues in that article, as her conclusion sums it up (in words that McQuade avoids quoting) is that Scalia rarely was “in a crunch” between originalism and stare decisis, “mostly because of the underappreciated features of our system that keep the law stable without the need for resort to the doctrine of stare decisis.” Barrett doesn’t retreat at all from her embrace of the Court’s traditional principle of stare decisis, and McQuade has no basis for contending otherwise.

I’ll limit myself to noting one other set of errors McQuade makes. She asserts that Barrett “dissented in a case that struck down an Indiana law that banned abortions on the basis of the sex or disability of a fetus.” I don’t know why McQuade leaves out that the anti-eugenics law also banned abortions motivated by the race of the fetus. In any event, as I explain more fully here, Barrett was not on the panel that decided the case (as McQuade’s summary would have you believe) and she did not express a bottom-line view on whether the anti-eugenics law was constitutional. Rather, when the full Seventh Circuit addressed whether to rehear the case en banc, Barrett joined an opinion that stated that the panel was wrong to conclude that the question was governed by existing Supreme Court precedent.

Bashing Judge Barrett

October 8, 2020 (link)

In an incompetent essay in Commonweal, philosophy professor Gregory Bassham tries to bash Judge Amy Coney Barrett by contending that she and Justice Scalia “have very different views on the issues of judicial restraint and respect for legal precedent.” Barrett, Bassham contends, holds a “judicial philosophy outside the mainstream, … a fringe view that even Scalia would reject.”

Bassham provides no hyperlinks in his essay, so it’s sometimes not clear what he purports to be summarizing. In any event, he gets every single one of his charges wrong. Let’s march through them in order:

1. Bassham writes:

For Scalia, the central virtue of originalism as a method of interpreting the Constitution is the way it limits judicial policymaking by unelected and tenured judges, thus honoring the basic democratic values of our constitutional tradition. By contrast, Barrett argues that it was a mistake for “early originalists” such as Scalia to stress the importance of judicial restraint. In her view, the original textual meaning of the Constitution is the law, period. Originalist judges have a sworn duty to uphold the law—even if that requires activist rulings, which may be deeply unpopular and invite frequent collisions with Congress and other democratically accountable legislative bodies.

Bassham posits a false “contrast” between Scalia’s views and Barrett’s. One of Scalia’s frequent criticisms of “living constitutionalism” and other alternatives to originalism is that they “can take away old rights as well as create new ones.” (The Essential Scalia, p. 16.) Insofar as Bassham is presenting Scalia as, above all, an apostle of judicial restraint, he is missing that Scalia was as adamant about enforcing the rights that are in the Constitution as he was about not inventing rights that aren’t in it.

I don’t know what Bassham is referring to in stating that “Barrett argues that it was a mistake for ‘early originalists’ such as Scalia to stress the importance of judicial restraint.” Barrett observes (in “Countering the Majoritarian Difficulty”) that originalism “is associated with judicial restraint in the popular consciousness because it emerged in the 1980s as a conservative response to the perceived activism of the Warren and Burger Courts.” That observation strikes me as correct as a historical matter.

In that same article, Barrett writes:

For Justice Scalia and those who share his commitment to uphold text, the measure of a court is its fairminded application of the rule of law, which means going where the law leads.

If Bassham has any support for his suggestion that Scalia didn’t believe that “the original textual meaning of the Constitution is the law” and that originalist judges “have a sworn duty to uphold the law,” I’d be eager to see it.

Bassham’s claim that Barrett’s originalism “requires activist rulings” is sloppy wordplay at best. When Barrett states that “deference to a democratic majority should not supersede a judge’s duty to apply clear text,” she is repeating Scalia, not departing from him.

2. Bassham asserts that one “clear example” of Barrett’s supposed “activist bent” is her “rejection of the long-standing view that courts, in interpreting statutes, should view themselves as ‘faithful agents’ of the relevant legislative bodies.” More fully:

Since lawmaking powers have been granted to legislatures, not courts, in our constitutional system, judges have been seen as properly playing a subordinate role in furthering and implementing the rule-making prerogatives of legislatures. Barrett once accepted this traditional view, but recently renounced it in a 2017 article “Congressional Insiders and Outsiders.” When interpreting statutes, judges should see themselves as “agents of the people,” not of legislatures, she argued. They can best carry out this populist role by enforcing statutory words in their “plain,” ordinary meanings, even when such meanings were clearly not intended or desired by the lawmakers, and even when such readings lead to apparent absurdities or gross injustices. (Why such absurdities and injustices are thought to be in the interest of “the people” is unexplained.) The upshot is that courts would see themselves not as partners and honest agents of legislative bodies, but as adversarial watchdogs.

Far from this “subordinate role” of the judiciary being “long-standing” and “traditional,” Barrett, in the very article that Bassham is invoking, attributes it to a “process-based turn in statutory interpretation” that took place in the last decade. She makes clear that Scalia rejected that view of the judiciary’s role. The position of Barrett’s that Bassham would have his readers think is different from Scalia’s is in fact Scalia’s:

Textualists have routinely described courts as the faithful agents of Congress. I have done it myself. Justice Scalia, however, put it differently. He took a relatively strong view of legislative supremacy, consistently arguing that courts must follow Congress’s will, as expressed in the text, and denying any judicial power to alter the text. At the same time, he did not think that a commitment to legislative supremacy casts courts in the role of Congress’s agents. He characterized courts as agents of the people rather than agents of Congress, and he depicted the duty of fidelity as one owed to enacted texts rather than to the legislature itself.

3. Bassham contends that another “major point of disagreement between Barrett and Scalia “is the importance of respecting prior court decisions that are mistaken according to public meaning originalists. But Barrett has vigorously defended the traditional principle of stare decisis (adherence to precedent) that Scalia endorsed. Bassham’s claim to the contrary rests on a series of errors or deceptions.

a. Bassham contends that Barrett “criticized Scalia for his ‘faint-hearted’ originalism, and instead argued for a ‘fearless’ originalism that recognizes no legal duty to preserve non-originalist precedent, no matter how entrenched or widely accepted it may be today.” I gather that he is purporting to present Barrett’s views in “Originalism and Stare Decisis,” but he botches them badly.

Barrett sets forth her thesis in that article quite clearly: “I argue that while [Scalia] did treat stare decisis as a pragmatic exception to originalism, that exception was not nearly so gaping as his ‘faint-hearted’ quip suggests.” Nowhere in that article does she “criticize[] Scalia for his ‘faint-hearted’ originalism.”

Nor does she argue for a “fearless” originalism—or, indeed, argue in that article for any theory of the relationship between originalism and precedent. She instead discusses the competing views of different originalists. It’s in that context that the word “fearless” appears once in her article, in a footnote quoting Randy Barnett:

See, e.g., Randy E. Barnett, It’s a Bird, It’s a Plane, No, It’s Super Precedent: A Response to Farber and Gerhardt, 90 Minn. L. Rev. 1232, 1233 (2006) (insisting that while “faint-hearted originalists” are willing to make a pragmatic exception to stare decisis to avoid political suicide, “[o]ther originalists like Mike Paulsen, Gary Lawson, and myself—call us ‘fearless originalists,’ . . .—reject the doctrine of stare decisis in the following sense: if a prior decision of the Supreme Court is in conflict with the original meaning of the text of the Constitution, it is the Constitution and not precedent that binds present and future Justices.” [Emphasis added.]

I have to wonder whether Bassham didn’t recognize that “and myself” was part of Randy Barnett’s quote speaking of himself and whether he instead misattributed it to Amy Coney Barrett. If so, it wouldn’t be the worst of his errors.

b. Citing “Precedent and Jurisprudential Disagreement,” Bassham complains that Barrett “supports only a ‘weak’ doctrine of adherence to precedent in constitutional cases.” But Barrett is defending the Court’s traditional principle against those academics who “have urged the Court to abandon its weak presumption of stare decisis in constitutional cases in favor of a more stringent rule.” (See substantial excerpts here.) Her position is the same as Justice Scalia’s and of every sitting justice except Justice Thomas.

Bassham clips out of context Barrett’s statement, “I tend to agree with those who say that a justice’s duty is to the Constitution and that it is thus more legitimate for her to enforce her best understanding of the Constitution rather than a precedent she thinks clearly in conflict with it.” As I have explained, the entire thrust of Barrett’s article is to defend the Court’s traditional principle of stare decisis on constitutional issues—which requires a “compelling” reason to overturn precedent and which “need[s] to take account of reliance interests”—on the ground that it “promotes doctrinal stability while still accommodating pluralism on the Court.”

Barrett goes on to address the “institutional legitimacy” arguments made by those who favor “a significantly stronger role for stare decisis” than the Court has adopted. She argues that the Court’s longstanding approach “protects institutional legitimacy and reliance interests more than is commonly supposed.” It’s in the narrow context of addressing legitimacy arguments that Barrett offers the tentative (“I tend …”) observation that Bassham mispresents as though it were a comprehensive statement of her position on precedent.

c. Here’s how Bassham brazenly summarizes Barrett’s supposed position on precedent in her “Congressional Originalism” article:

As Barrett explains in a 2016 article co-authored with John Copeland Nagle, mistaken constitutional rulings should at best be considered “provisional law” that can be overruled when the time is ripe. Even in cases of so-called erroneous “super precedents” that no sensible judge would now consider overruling, judges have no duty to treat such holdings as legally valid or binding. Their status as “law,” Barrett claims, is wholly derived from the widespread support they currently enjoy. Should that support ever significantly wane, judges should, if squarely confronted with the issue, boldly overrule the mistaken rulings.

Try to reconcile that summary with these passages from Barrett’s article:

[O]riginalists, like their counterparts, recognize that there are some mistakes whose correction would do far more harm than good.

Institutional features of Supreme Court practice permit all Justices to let some sleeping dogs lie, and so far as we are aware, no one has ever argued that a Justice is duty-bound to wake them up. Such a claim would be extraordinary, for the Court’s agenda-limiting rules are well within its authority to adopt.

If a nonoriginalist precedent is truly part of the constitutional fabric, the Court will not be asked to reconsider it, nor does a commitment to originalism require that any Justice volunteer to do so.

Focusing on the source of super precedent’s force reveals a point that is entirely overlooked in the stare decisis debate: the rules of adjudication contemplate the presence of mistaken constitutional interpretations that the Court has no obligation to correct. They promote stability by instructing the Court at almost every stage of the process not to pick a fight.

In short, Bassham’s account of Barrett’s article is a gross distortion.

Bottom line: Bassham utterly fails to show that Barrett’s views on these matters are any different from Scalia’s.

Judge Barrett on the Second Amendment

September 25, 2020 (link)

Judge Amy Coney Barrett’s impressive dissent in Kanter v. Barr (pp. 27-64) illustrates both her fidelity to the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller (2008) and her masterful application of the constitutional methodology of originalism.

Rickey I. Kanter pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. As a convicted felon, he was categorically prohibited by federal law and Wisconsin law from possessing a firearm. When he argued that the Second Amendment did not allow those laws to be applied against him, the panel majority rejected his claim.

Based on her extensive marshalling and analysis of the historical evidence, Judge Barrett concludes that the Second Amendment leaves legislatures the power to prohibit dangerous people from possessing guns but that felons do not lose their Second Amendment rights solely because of their status as felons. The federal government and the state of Wisconsin failed to show that disarming all nonviolent felons is carefully tailored to the goal of protecting public safety, nor did they show that mail fraud is substantially related to violent behavior. They also failed to demonstrate that anything else in Kanter’s history or characteristics made him likely to misuse firearms. Therefore, they could not bar him from possessing a firearm.

Re: Judge Barrett on the Second Amendment

October 8, 2020 (link)

In this post, I briefly outlined Judge Amy Coney Barrett’s impressive dissent in Kanter v. Barr, in which she determined that categorical bans on a felon’s possession of firearms could not be applied to Rickey Kanter, who had pleaded guilty to one count of federal mail fraud for falsely representing that his company’s therapeutic shoe inserts were Medicare-approved and for billing Medicare on that basis. Barrett concluded that the federal government and the state of Wisconsin had failed to show that their categorical bans could be applied against all nonviolent felons or that there was anything in Kanter’s history or characteristics that indicated that he was likely to misuse firearms.

Having run across various distortions of Barrett’s position, I will go a bit deeper in this post.

1. In District of Columbia v. Heller (2008), Justice Scalia stated in his majority opinion:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

In a footnote appended to that sentence, he referred to “these presumptively lawful regulatory measures.”

2. The panel majority in Kanter observed that the Court in Heller “never actually addressed the historical pedigree of felon possession laws” and that the Seventh Circuit had “refused to read too much into the Court’s ‘precautionary language.’” (P. 15.) It expressly acknowledged that the Seventh Circuit is among the several federal appellate courts that “have left room for as-applied challenges” to the federal ban on firearm possession by a felon. Indeed, it cited and quoted Seventh Circuit precedent for the proposition that “[W]e recognize that § 922(g)(1) [the federal ban] may be subject to an overbreadth challenge at some point because of its disqualification of all felons, including those who are non-violent.” (P. 10.)

The panel majority recognized that whether nonviolent felons as a class historically enjoyed Second Amendment rights was an open question:

The first question is whether nonviolent felons as a class historically enjoyed Second Amendment rights. Heller did not answer this question. [P. 14.]

The panel majority ultimately concluded that it “need not resolve this difficult question.” (P. 19.) It instead proceeded on the assumption that nonviolent felons have Second Amendment rights and held that the felon-dispossession statutes satisfy intermediate scrutiny and can therefore be applied against Kanter. (Pp. 19-26.)

3. Garrett Epps (whose misrepresentation of Barrett’s position on stare decisis I’ve already refuted) is simply wrong when he claims that Barrett “asserted that Heller didn’t really mean that felon possession laws were constitutional.” (His emphasis.) The question in the case was not whether the laws were constitutionally permissible; it was instead whether the constitutionally permissible laws could be applied against Kanter. Under Barrett’s position, the laws remain enforceable against violent felons as well as against any subcategory of nonviolent felons whose convictions can be shown to be “substantially related to violent behavior” and against any nonviolent felon whose other personal circumstances or characteristics indicate that he would pose a risk to public safety if he possessed a gun.

Indeed, as Barrett points out, her historical analysis indicates that the category of persons who can be disarmed is “simultaneously broader and narrower than ‘felons’—it includes dangerous people who have not been convicted of felonies but not felons lacking indicia of dangerousness.” (My emphasis.)

I’ve seen various other claims that Barrett somehow disregards Heller’s statement that felon-dispossession statutes are “presumptively lawful.” Not so. She addresses that statement for a full page (p. 32) and concludes, like the majority, that that statement provides only “a place to start”: “I agree with the majority that Heller’s dictum does not settle the question before us.”

4. Tweeting on the Kanter case, liberal Second Amendment scholar Adam Winkler has stated that he “agree[s] with Barrett” and has “argued that blanket bans on firearm possession by felons goes too far. Some felonies do not suggest violent tendencies (think of Martha Stewart), and the interest in public safety is not advanced by denying those people their rights.” (In the same tweet thread, he says that theirs is not the “mainstream” position among judges who have ruled on the question so far.) Liberal law professor Alan Morrison expressed a similar agreement with Barrett in this recent Federalist Society panel discussion.

Judge Barrett’s Record on Abortion

September 24, 2020 (link)

Nothing in Judge Amy Coney Barrett’s record provides any support for the charge that she would indulge her Catholic faith and her reputed pro-life convictions in deciding cases, and one of her votes cuts directly against such a charge.

During her three years on the Seventh Circuit, Judge Barrett has taken part in two proceedings involving state regulation of abortion. Both were decisions by the en banc Seventh Circuit whether to rehear panel rulings.

In Planned Parenthood v. Commissioner, the en banc court, by an evenly divided vote, denied Indiana’s request that it review the panel ruling that held that a state provision regulating the disposal of fetal remains was unconstitutional. Barrett was one of five dissenters. She joined an opinion by Judge Frank Easterbrook that pointed out that the panel had “held invalid a statute that would be sustained had it concerned the remains of cats or gerbils.” (See pp. 6-8.) On summary disposition (without even the need for oral argument), the Supreme Court reversed the panel ruling by a 7-2 vote. Justice Breyer and Justice Kagan were part of the majority.

In that same en banc proceeding, Judge Easterbrook (joined by Barrett and three others) stated that he was “skeptical” about the panel’s ruling on another question, the validity of an Indiana provision that prohibits abortions motivated solely by the race, sex, or disability of the fetus. The panel had ruled the provision invalid. Easterbrook opined that Supreme Court precedent did not clearly govern the question. He did not support en banc rehearing on that question, but instead said that he was “content to leave it to the Supreme Court.” (Some folks on the Left object to the fact that he used the shorthand “eugenics statute” for the provision. I’d counter that “anti-eugenics statute” would have been a better shorthand.) The Supreme Court denied review.

In the second proceeding (Planned Parenthood v. Box), the en banc court declined to rehear a divided panel ruling that invalidated an Indiana parental-notification law. (Specifically, that law provides that when a minor seeking an abortion obtains a judicial order exempting her from obtaining parental consent, the judge shall give notice to her parents of the planned abortion unless the judge finds that such notice is not in the minor’s “best interests.”) Of the 11 judges taking part in the en banc proceeding, four denied en banc review without comment, two others voted to deny en banc review on the ground that the Supreme Court, having made a mess in this area, should clean up its own mess, and five others dissented. Barrett joined the one-paragraph opinion for the dissenters. It reads:

This case implicates an important and recurring issue of federalism: Under what circumstances, and with what evidence, may a state be prevented from enforcing its law before it goes into effect? Given the existing unsettled status of pre-enforcement challenges in the abortion context, I believe this issue should be decided by our full court. Preventing a state statute from taking effect is a judicial act of extraordinary gravity in our federal structure.

In July, the Supreme Court sent the case back to the Seventh Circuit for further consideration in light of its ruling in June Medical Services v. Russo.

One other abortion-related case: Barrett was on a Seventh Circuit panel that ruled unanimously (in Price v. City of Chicago) that Chicago’s “bubble zone” ordinance, which (in the panel’s summary) “prohibit[s] any person from approaching within eight feet of another person near an abortion clinic for the purpose of engaging in the type of speech associated with sidewalk counseling,” is permissible under the Supreme Court’s ruling in Hill v. Colorado (2000). As the panel explained, the Chicago ordinance is indistinguishable from the Colorado law that the Court allowed in Hill.

The Court’s ruling in Hill was widely regarded as egregious when it was rendered—Harvard law professor Laurence Tribe called the case “slam-dunk simple and slam-dunk wrong”—and it has fared very poorly over the years. As the panel explained, recent Supreme Court rulings “have deeply shaken Hill’s foundation,” and Hill “is incompatible with current First Amendment doctrine.” Nonetheless, Hill “remains on the books and directly controls here.” More broadly:

The [Supreme] Court’s instructions in this situation are clear: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case [that] directly controls, leaving to this Court the prerogative of overruling its own decisions.” Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (quotation marks omitted).

That’s basically it. One newspaper article has asserted that Barrett, in her earlier career as an academic, “suggested Roe vs. Wade was an ‘erroneous decision.’” But, as I explain more fully here, that assertion is contradicted by the article it relies on.

False Claim on Judge Amy Coney Barrett on Roe v. Wade

June 29, 2018 (link)

A Los Angeles Times piece claims that Supreme Court candidate (and Seventh Circuit judge) Amy Coney Barrett, in her previous career as an academic, “suggested Roe vs. Wade was an ‘erroneous decision.’” But the “2003 scholarly article” that the piece refers to suggests nothing of the sort.

Here is the passage in the article (“Stare Decisis and Due Process”) that contains Barrett’s only use of the phrase “erroneous decision” (with my underlining):

The questions that traditionally have occupied courts and scholars with respect to stare decisis are systemic. Courts and commentators have considered the kinds of errors that justify or even require the overruling of precedent. They have thought about the kinds of reliance interests that justify keeping an erroneous decision on the books.

To the last sentence is appended a footnote (footnote 70), which reads in its entirety:

See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 855-57 (1992) (holding that reliance on availability of abortion counts in stare decisis calculus); id. at 956-57 (Rehnquist, C.J., dissenting) (insisting that such abstract interests do not count); Michael J. Gerhardt, The Pressure of Precedent: A Critique of the Conservative Approaches to Stare Decisis in Abortion Cases, 10 Const. Comment. 67, 78 (1993) (claiming that reliance interests at stake in Casey were even greater than plurality imagined); see also A. Goldberg, Equal Justice: The Warren Era of the Supreme Court 74 (1971) (arguing that stare decisis should be strongest when overruling precedent would contract individual freedom and weakest when overruling would expand individual freedom), quoted in Charles J. Cooper, Stare Decisis: Precedent and Principle in Constitutional Adjudication, 73 Cornell L. Rev. 401, 403 (1988).

As ought to be obvious in context, Barrett is citing competing opinions in Planned Parenthood v. Casey because they present different views “about the kinds of reliance interests that justify keeping an erroneous decision on the books.” Any scholar addressing the topic could reasonably be expected to do so. (Casey is of course widely cited in discussions of stare decisis.) Such a citation does not remotely “suggest” any view of the scholar on Roe.

Michael McConnell’s Very Weak Argument on Judge Barrett and Roe

October 1, 2020 (link)

In a curious Washington Post op-ed, distinguished conservative law professor Michael McConnell argues that confirming and appointing Judge Amy Coney Barrett to the Supreme Court “would not end abortion rights.” He is certainly correct in the sense that the long overdue overturning of Roe v. Wade and Planned Parenthood v. Casey would simply restore abortion policy to the democratic processes in the states. Many states would surely provide robust protections for abortion for the foreseeable future, and even the most pro-life states might well allow abortion in limited circumstances.

But that isn’t the argument that McConnell is making. He instead argues that it is implausible to expect that the Court will ever overturn its abortion regime:

[I]n confirmation battles going back to the 1980s, abortion rights advocates have predicted that every nominee by a Republican president, if confirmed, would mean the reversal of Roe v. Wade. Yet it has never happened. Republican presidents have filled nine seats since Ronald Reagan was elected president; nine times the nation was warned that Roe was on the chopping block. Somehow, the blade never falls. Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush. Roe is the Road Runner of all precedents. Wile E. Coyote just never catches up.

There are reasons Roe is so resilient — and one of them is not the legal persuasiveness of the opinion, which is nil. But the ruling is nearly a half-century old and has been reaffirmed multiple times by justices of both parties. Such a decision will not be lightly overruled.

This argument, which treats pro-lifers as chumps, is badly flawed. Only three (O’Connor, Kennedy, and Souter) of the justices appointed by Republican presidents since Reagan have voted to sustain the Court’s power grab on abortion, and all three are no longer on the Court. Roe and Casey weren’t even teed up for reconsideration in June Medical or in any other cases since Casey. It’s strange to see McConnell use a pro-abortion talking point, not sound legal analysis, in mischaracterizing those cases as having “reaffirmed” Roe.

It’s an elementary principle of the conventional stare decisis framework that Barrett (contrary to what her critics claim) accepts that a precedent “will not be lightly overruled.” But that observation merely tees up the stare decisis analysis; it does not carry it out. And although I certainly don’t claim to know better than anyone else whether Barrett or the four sitting Republican appointees who haven’t yet addressed the question would join with Justice Thomas in voting to overturn Roe, there is ample reason that they should.

McConnell continues:

[W]hatever one may think of abortion, the practice is so widespread and ingrained, and the right to it so intensely defended by a significant minority of Americans, that trying to use the force of the state to end it would wrench the nation apart — while almost surely failing.

The politics would not be kind to pro-lifers. Right now, abortion-related disputes concern marginal cases (such as late-term abortions, parental consent, sex-selective abortion and disposal of fetal remains) where public opinion is divided and the majority might even support increased restrictions. If Roe were overruled, the debate would shift to out-and-out prohibitions, where public opinion is squarely on the side of abortion rights. Republican Party primaries would feature fights to the death between purists and compromisers, and a united pro-choice Democratic Party would gain the advantage.

Insofar as McConnell might be read to be arguing that overturning Roe would be “trying to use the force of the state to end” abortion, that’s a ludicrous argument. Overturning Roe would return policymaking on abortion to the democratic processes in the states.

McConnell’s pessimistic claim that the ensuing politics “would not be kind to pro-lifers” might end up being right. But the fact of the matter is that the perpetuation of Roe has meant that “purists” on both sides haven’t had to try to build majority support for their positions and that the American public hasn’t had occasion to give abortion policy serious attention. Polls regularly show that the American people support various restrictions that the Roe/Casey regime doesn’t allow. There is no reason to expect abortion-rights extremists to moderate their demands and to be more effective than pro-lifers in crafting compromises in a post-Roe world.

Moreover, the genius of our system of federalism means that legislators in different states would adopt different approaches that best suit their citizens and would be free to revise those approaches over time. Far from “wrench[ing] the nation apart” (as Roe has done), overturning Roe offers the surest path to peaceful resolution of the abortion wars.

McConnell’s argument could easily be read to suggest that justices appointed by Republican presidents would (or perhaps even should) retain Roe in order to advance the interests of the Republican party. That would be a damning indictment, and it’s not one that I would make of any of the current justices. (I’ve heard others speculate that Justice Kennedy and Justice O’Connor might have had that motivation in Planned Parenthood v. Casey.)

Cultural elites have long subjected justices to intense pressure to retain Roe. It’s very unfortunate that McConnell seems to be piling on with them. I have too much admiration for Judge Barrett to believe that she would cave to such pressure rather than decide the matter on the basis of law.

Judge Barrett on Title IX Protections for Accused Students

September 25, 2020 (link)

Writing for a unanimous panel in Doe v. Purdue University, Judge Amy Coney Barrett ruled that John Doe, the pseudonym of a student suspended by Purdue University for supposedly having committed sexual violence, could pursue his claim that Purdue had discriminated against him “on the basis of sex” in violation of Title IX. Given the issue, I will note that all three judges on the panel were women.

The legal question in the case was whether Doe had adequately pleaded a claim under Title IX.* In order to meet that threshold, Doe had to allege facts sufficient to support an inference that Purdue acted against him at least partly on the basis of sex. Barrett determined that he had. In particular, Doe alleged that the college official who found him guilty of committing sexual violence found his accuser credible even though she had never spoken with the accuser or even received a written statement from her. (A Title IX coordinator relayed the accuser’s account.) In addition, Doe alleged that advisors to the official likewise credited the victim based on the accusation alone, made up their minds without reading the investigative report and before even talking to Doe, refused to hear from his witnesses, and were openly hostile to him when they did meet with him.

Barrett determined that Doe plausibly alleged that the official and advisors chose to believe the accuser because she is a woman and to disbelieve Doe because he is a man.

In the 15 months since she issued her ruling, her opinion has already been cited extensively by courts across the country (including the Third Circuit, the Sixth Circuit, the Ninth Circuit, and the Tenth Circuit).

* A separate question, on which the panel also reversed the lower court, was whether Doe had adequately pleaded that Purdue had violated his right to procedural due process. See pp. 8-24.

Christian School Board Membership: A Tale of Two Supreme Court Candidates

September 28, 2020 (link)

A Politico article finds it newsworthy that the Christian school to which Judge Amy Coney Barrett and her husband send their older kids, and on whose board she sat for two years before becoming a judge, espouses orthodox Christian beliefs:

The school publishes a “cultural statement” laying out its views on social issues. It articulates a clear, conservative Christian set of values, including discouraging sex before marriage and cautioning students who experience same-sex attraction from “prematurely interpret[ing] any particular emotional experience as identity-defining.”

The article even makes the preposterous claim that the school “appears to have been at odds with American law while Barrett served on the board” because, notwithstanding the Supreme Court’s imposition of a constitutional right to same-sex marriage in Obergefell v. Hodges (2015), the school continued to profess that “marriage is a legal and committed relationship between one man and one woman.”

Earth to Politico: The “American law” of religious freedom entitles religious institutions and religious persons to profess their religious beliefs. The Court in Obergefell spelled out this elementary point:

Finally, it must be emphasized that religions, and those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned. The First Amendment ensures that religious organizations and persons are given proper protection as they seek to teach the principles that are so fulfilling and so central to their lives and faiths, and to their own deep aspirations to continue the family structure they have long revered. The same is true of those who oppose same-sex marriage for other reasons.

As it happens, Judge Ketanji Brown Jackson, who is on lots of lefty short lists (including that of Demand Justice) for the Supreme Court if Joe Biden is elected president, served as an advisory board member for a Christian school that proclaimed these beliefs:

Man is the special creation of God, made in His own image. He created them male and female as the crowning work of His creation. The gift of gender is thus part of the goodness of God’s creation . . . .

All Christians are under obligation to seek to make the will of Christ supreme in our own lives and in human society. . . . In the spirit of Christ, Christians should oppose racism, every form of greed, selfishness, and vice, and all forms of sexual immorality, including adultery, homosexuality, and pornography. We should work to provide for the orphaned, the needy, the abused, the aged, the helpless, and the sick. We should speak on behalf of the unborn and contend for the sanctity of all human life from conception to natural death. Every Christian should seek to bring industry, government, and society as a whole under the sway of the principles of righteousness, truth, and brotherly love.…

Marriage is the uniting of one man and one woman in covenant commitment for a lifetime. It is God’s unique gift to reveal the union between Christ and His church and to provide for the man and the woman in marriage the framework for intimate companionship, the channel of sexual expression according to biblical standards, and the means for procreation of the human race.

The husband and wife are of equal worth before God, since both are created in God’s image. The marriage relationship models the way God relates to His people. A husband is to love his wife as Christ loved the church. He has the God-given responsibility to provide for, to protect, and to lead his family. A wife is to submit herself graciously to the servant leadership of her husband even as the church willingly submits to the headship of Christ. She, being in the image of God as is her husband and thus equal to him, has the God-given responsibility to respect her husband and to serve as his helper in managing the household and nurturing the next generation.

Children, from the moment of conception, are a blessing and heritage from the Lord.

‘Al Franken Supports State-Sanctioned Sterilization of Transgendered People’

September 12, 2017 (link)

Senator Feinstein’s display of anti-Catholic bigotry at Seventh Circuit nominee Amy Coney Barrett’s hearing last week overshadowed an even more vicious—and equally baseless—attack by Senator Al Franken on Alliance Defending Freedom, a leading defender of religious liberty. Franken parroted the Southern Poverty Law Center’s claim that ADF is a “hate group” and faulted Barrett for speaking to ADF’s Blackstone Fellowship program.

SPLC has an ugly practice of promiscuously misusing labels like “hate group” and “anti-Muslim extremist” to stigmatize its political opponents and (as one liberal critic puts in this Politico article) “to milk money out of the public.” Its targets and victims include heroes like Ayaan Hirsi Ali, Carol Swain (an African-American academic whom, as she explains in a Wall Street Journal op-ed today, SPLC smeared as “an apologist for white supremacists”), Princeton professor Robert P. George, Ben Carson, and, perhaps most notoriously, the Family Research Council, which five years ago faced a near-massacre by an unstable individual incited by SPLC’s ugly rhetoric. So ADF has plenty of good company.

A has-been comic who has evidently lost his sense of irony, Franken faulted Barrett for failing to “vet” ADF even as he failed to vet SPLC’s attack on ADF. For example, Franken quoted and credited SPLC’s claim that ADF “has defended state-sanctioned sterilization of transgendered people abroad.” And he then adopted the charge as his own: “This is a group that calls for the sterilization of transgender people abroad.”

Franken’s claim is flatly false. If Franken or his staff had bothered to click SPLC’s supposedly supporting link, they would have discovered that the European Court of Human Rights case that SPLC was relying on was one that involved the vexing question whether and when government-issued documents should redefine a person’s biological sex to comport with the person’s gender identity. One possible answer to that question—an answer that is available to the federal government and to all fifty states—is to allow a sex change on a government-issued document only when the person has undergone a so-called sex-change operation. So the “state-sanctioned sterilization” that ADF purportedly defended was in fact an individual transgender person’s own decision to undergo surgical mutilation.

Even worse, SPLC and Franken are wrong in claiming that ADF advocated that government-issued documents should redefine a person’s biological sex only when that person has undergone a sex-change operation. ADF did not even address the question in its amicus brief but instead argued merely that the “mechanics” of changing the sex on government documents was “a matter for the member State” to determine (again, just as it is up to each state in this country).

By his support of Obamacare, Franken, I’ll note, supports government-authorized (“state-sanctioned”) taxpayer funding of sex-change operations. Indeed, he has urged the Department of Veteran Affairs to provide such operations to veterans (as “critically important care”). So the title of this post, while admittedly misleading, is far more accurate than his attack on ADF.

More broadly, there is no reason to impute to Barrett any of the various legal or policy positions that ADF has adopted.

Franken claims that he “would vet whoever asked me to speak, whether I was speaking for free or I was getting paid.” Who knows whether he vetted the Council on American-Islamic Relations (perhaps better known as CAIR) before he thanked the group for its “efforts to not only promote political engagement and protect civil liberties, but to further our national dialogue”? This is the same CAIR that the Anti-Defamation League faults for its “anti-Israel agenda” and for its chapters that “partner with various anti-Israel groups that seek to isolate and demonize the Jewish State.” My point, of course, is not to suggest that Franken shares any of CAIR’s positions, including its “anti-Israel agenda.” By the same token, there’s no reason to assume that Barrett’s agreement to speak to ADF’s Blackstone Fellows means that she shares any of ADF’s positions.

(Disclosure: I have spoken to ADF’s Blackstone Fellows and have been pleased to work with ADF on matters of common interest.)

On Judge Barrett and Baseless Claims About Recusal

September 22, 2020 (link)

A year ago, I refuted ill-founded concerns that Judge Amy Coney Barrett might recuse herself from cases involving capital punishment, immigration, and abortion. Because I see similar concerns popping up here and there, I will just offer a few simple points:

1. Barrett has now taken part in cases involving capital punishment. Just two months ago, she joined the ruling in Lee v. Watson that denied Daniel Lewis Lee’s motion for stay of execution. She also joined the ruling in Peterson v. Barr that overturned a district-court order blocking Lee’s execution.

2. In addition to the abortion-protest case that I mentioned a year ago, Barrett has taken part in en banc proceedings in two separate cases involving different provisions of Indiana law regulating abortion (Planned Parenthood v. Commissioner and Planned Parenthood v. Box).

3. Barrett has taken part in so many cases involving immigration that I’m not even going to try to list them. (I discussed some of them in this defense of Barrett from an unhinged attack from the Left.)

No, Caperton Has No Bearing on a Justice Barrett’s Recusal Obligations

October 19, 2020 (link)

I hesitate to disagree with the great former Fourth Circuit judge J. Michael Luttig. But I respectfully must do so on the question whether the Supreme Court’s 2009 ruling in Caperton v. A.T. Massey Coal Co. has any meaningful bearing on whether Amy Coney Barrett, once appointed as a justice, would have to recuse herself from election-related litigation.

In this Washington Post op-ed, Judge Luttig contends that the Supreme Court’s 2009 ruling in Caperton “would seem to apply squarely to Barrett’s recusal decision and could well require, or at least counsel, her recusal.”

Let me first highlight two points in Luttig’s op-ed with which I agree. First, he opines that “Barrett rightly deflected Democratic senators’ demands that she commit in advance to recusal, wisely promising instead to seriously consider the question should it arise.” (Folks on the Left citing his op-ed seem to pass over this point.) Second, he describes the 5-justice majority opinion in Caperton as “inartful and mischievous.”

But “inartful and mischievous” as it is, the majority’s opinion in Caperton squarely addresses a “problem [that] arises in the context of judicial elections,” and its Due Process Clause holding is set forth expressly in that context (emphasis added):

We conclude that there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge’s election campaign when the case was pending or imminent. The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

As the majority sums up the facts, the three million dollars in contributions that Don Blankenship, chairman of A.T. Massey Coal Company, made to the campaign of Brent Benjamin to be elected a justice of the West Virginia supreme court “were more than the total amount spent by all other Benjamin supporters and three times the amount spent by Benjamin’s own committee.”

In rejecting arguments that its holding would have “various adverse consequences … ranging from a flood of recusal motions to unnecessary interference with judicial elections,” the majority stated:

The facts now before us are extreme by any measure. The parties point to no other instance involving judicial campaign contributions that presents a potential for bias comparable to the circumstances in this case.

As Luttig points out, Chief Justice Roberts in his dissent raises the question “whether the new probability of bias standard [under the Due Process Clause] is somehow limited to financial support in general elections, or applies to judicial recusal questions more generally.” But it’s one thing for a dissent to point out that the rationale underlying a majority’s holding could conceivably have implications beyond the context that the majority defines. It’s quite another for Luttig to contend that the actual ruling in Caperton—which rests on “all the circumstances of this case,” including the context of judicial elections”—“would seem to apply squarely to Barrett’s recusal decision.”

Further, it seems clear that the Court has already implicitly rejected such an expansive reading of Caperton: The influence that Blankenship had on Benjamin’s election is dwarfed by the influence that every appointing president has in appointing justices and judges. Yet, in the immediate aftermath of Caperton, Justice Sotomayor and Justice Kagan did not recuse themselves from deciding the constitutionality of President Obama’s signature domestic achievement in NFIB v. Sebelius. Nor did any other justice suggest that they had any obligation to do so. I’m also not aware of any scholar of judicial ethics who ever argued that Obama’s role in putting them on the Court (as distinct, say, from Kagan’s role as Obama’s solicitor general in developing the litigation strategy to defend Obamacare) required recusal.

A Justice Barrett should indeed “seriously consider the question” of recusal under 28 U.S.C. § 455 if and when occasion to do so arises. But I don’t see how the Caperton ruling would play any significant role in such consideration.


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