Bench Memos

1980—Days after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the incoming Senate, President Carter nominates Stephen G. Breyer, then serving as chief counsel to Teddy Kennedy on the Senate Judiciary Committee, to a newly created seat on the First Circuit. Less than four weeks later, the Senate confirms Breyer’s nomination. 

2018—In a statement regarding the denial of certiorari in a death-penalty case (Reynolds v. Florida), Justice Breyer expresses his concern that “lengthy delays [in carrying out death sentences] deepen the cruelty of the death penalty and undermine its penological rationale,” and he proposes that the Court reconsider the constitutionality of the death penalty. Justice Thomas responds:  

It makes a mockery of our system of justice for a convicted murderer, who, through his own interminable efforts of delay has secured the almost-indefinite postponement of his sentence, to then claim that the almost-indefinite postponement renders his sentence unconstitutional…. The labyrinthine restrictions on capital punishment promulgated by this Court have caused the delays that Justice Breyer now bemoans. As “the Drum Major in this parade” of new precedents [quoting Justice Scalia in Glossip v. Gross], Justice Breyer is not well positioned to complain about their inevitable consequences. 

1908—In Nashville, Illinois, the human fetus to become known as Harry A. Blackmun emerges safe and sound from his mother’s womb. Some sixty-five years later, Justice Blackmun authors the Supreme Court opinion in Roe v. Wade. (See This Day for Jan. 22, 1973.) Somehow the same people who think it meaningful to criticize Justice Thomas for opposing affirmative-action programs from which he putatively benefited don’t criticize Blackmun for depriving millions of other unborn human beings the same opportunity that he was given.  
 
1975—Justice William O. Douglas (see This Day for April 4, 1939) retires from the Court—only to be replaced by Justice John Paul Stevens. 

2014—What could possibly explain notorious liberal activist Stephen Reinhardt’s seemingly amazing propensity to be selected to sit on important Ninth Circuit cases with a strong ideological valence? Buried in a New York Times article is some very surprising news that provides a partial answer.  

For “cases on a fast track, like the marriage case” that challenged Nevada’s and Idaho’s laws, the Ninth Circuit clerk’s office, “[u]ntil recently,” assigned cases “to the available panel with the most senior presiding judge.” As the article notes, “Judge Reinhardt, who was appointed by President Jimmy Carter, is one of the most senior active judges and so was disproportionately likely to be the presiding judge.” 

This news is very surprising for at least three reasons. First, there is nothing in the Ninth Circuit’s rules or general orders that revealed the existence of this practice. Second, it is difficult to discern any justification for this departure from randomness. Third, this practice was not even commonly known among Ninth Circuit judges who had concerns about Reinhardt’s remarkable good fortune in assignments. 

One other peculiarity: According to a letter from the party challenging the assignment of judges in the marriage case, the Ninth Circuit did not in fact use that “recently revealed ‘different procedure’” when it originally assigned a panel to the case. This deviation is consistent with concerns that the clerk’s office has had a great deal of unsupervised discretion in assigning cases—and that its abuse of that discretion may be more broadly responsible for Reinhardt’s astounding good luck in case assignments. 

I’ve admired Mike DeWine, the newly re-elected governor of Ohio, ever since I, as a Senate Judiciary Committee staffer, first saw him in action when he became a U.S. senator and Judiciary Committee member in 1995. Governor DeWine now has a historic opportunity to build a state supreme court dedicated to the interpretive principles of originalism and textualism that he espouses. Let’s hope that he avails himself of this critical opportunity.

On the same night that DeWine won re-election by a margin of 25 points, strong judicial-conservative candidates won all three races for new six-year terms on the Ohio supreme court. The current chief justice, Maureen O’Connor, faces mandatory retirement at the end of the year, and the remaining three justices are liberals.

Sitting associate justice Sharon L. Kennedy has been elected chief justice to succeed O’Connor. DeWine therefore has the responsibility to appoint someone to fill the remaining four years of Kennedy’s term as associate justice. That appointment will determine whether the court has a working majority of judicial conservatives.

The supreme court is poised to rule on some huge issues, including the claim that the Ohio heartbeat law signed by DeWine in 2019 violates an imagined state constitutional right to abortion.

This is no time for DeWine to settle for a justice who isn’t stellar.

One outstanding candidate I’m aware of is Ohio solicitor general Benjamin Flowers, who for more than three years has been successfully defending Ohio’s laws in the U.S. Supreme Court, the U.S. Court of Appeals for the Sixth Circuit (a big pro-life victory), and the Ohio supreme court. Flowers was a law clerk to Justice Scalia and, in addition to graduating with high honors from the University of Chicago law school, has the special Ohio distinction of having received his undergraduate degree (summa cum laude, no less) from Ohio State.

I’m very pleased to have received a Hebrew-language volume of Justice Scalia’s writings, drawn from two books that I co-edited, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived and The Essential Scalia: On the Constitution, the Courts, and the Rule of Law:

The Hebrew title, I’m told, can be translated as In the Name of the Law: Scalia on the Court, the Constitution, and the Rule of Law.

The volume is an initiative of a new group, the Israel Law and Liberty Forum, that (according to this article from the left-leaning Israeli newspaper Haaretz explains) aims to “revamp[] the Israeli judicial system from the ground up, based on the mode of operation used so effectively by the Federalist Society.” I’ve enjoyed meeting the group’s leaders and wish them great success. Mazel tov!

1995—In A Woman’s Choice v. Newman, federal district judge David F. Hamilton issues a preliminary injunction preventing Indiana from implementing its recently enacted statute governing informed consent for abortion. Hamilton’s extraordinary obstruction of that statute—which was materially identical to the provisions held to be constitutionally permissible in the Supreme Court’s 1992 ruling in Planned Parenthood v. Casey—continues for seven years, until the Seventh Circuit reverses his rulings. 

In March 2009, President Obama makes the former ACLU activist his first nominee to a federal appellate seat. In its headline on the nomination news, the New York Times touts Hamilton as a “moderate.” 

2015—Longtime Wisconsin supreme court justice Shirley Abrahamson drops her appeal of a district-court ruling (by an Obama appointee, no less) that rejected her patently frivolous (and evidently perjured) lawsuit against the operation of a voter-adopted referendum that effectively displaced her as chief justice. So now everyone can agree that Abrahamson is not appealing. 

2000—So much for respecting a capital inmate’s final wishes.  

Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief. But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.” Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.  

 2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit. Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it.

In February 2004, President Bush will recess-appoint Pryor to the seat. And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush will appoint him to a lifetime seat. In 2020, Pryor will become chief judge of the Eleventh Circuit. 

2017—In a unanimous ruling in Kernan v. Cuero, the Supreme Court summarily reverses a ruling by Ninth Circuit judge Kim McLane Wardlaw that granted habeas relief to a state prisoner. Employing understatement, the Court observes, “There are several problems with the Ninth Circuit’s reasoning below.” 

Summary reversals—that is, reversals without the Court’s seeing any need for briefing on the merits or oral argument—generally reflect very poorly on the judge who authored the opinion below. But Wardlaw seems to be competing for a Lifetime Summary Reversal Award, as this is at least the fourth time she has had a ruling unanimously summarily reversed by the Court. 

2019—So much for deferential judicial review of agency rules. In a remarkably stingy reading of the U.S. Department of Health and Human Services’ authority to implement conscience rights protected by federal statutes, federal district judge Paul A. Engelmayer orders that HHS’s May 2019 rule on “Protecting Statutory Conscience Rights in Health Care” be vacated in its entirety.  

Minnesota has had Democratic attorneys general for more than fifty years. Yet Jim Schultz has an excellent opportunity amid the chaos that now plagues the state to break that one-party dominance. It is hard to identify any public official on the ballot today more ill-suited to the challenges of our time than the incumbent, Democrat Keith Ellison. During his tenure as attorney general, Minnesota has faced the greatest increase in violent crime in decades, including a record number of murders for two consecutive years. Yet Ellison has spent his time trying to defund the police, partnering with Representative Ilhan Omar, his successor in the House, to push an ultimately unsuccessful Minneapolis ballot measure that would have replaced the city’s police department with a public safety agency and eliminated a minimum staffing requirement for officers.

Keith Ellison took office in 2019, after a dozen years serving as one of the most liberal members of Congress—more liberal than 90 percent of House Democrats, according to ideological ratings compiled by FiveThirtyEight. Senator Bernie Sanders, whom Ellison endorsed both times he ran for president, has campaigned in Minnesota for Ellison in an apparent effort to increase turnout among young and liberal voters.

He also has pushed other favored causes of the Left. He filed amicus briefs urging the Supreme Court to halt the Texas Heartbeat Act and Mississippi 15-week abortion ban and to uphold New York’s onerous restrictions on carrying weapons for self-defense, in addition to defending the DACA program before the Fifth Circuit. For the current Supreme Court term’s docket, he filed briefs opposing the graphic designer who does not wish to be compelled to create a website for a same-sex wedding and attacking Alabama’s congressional redistricting with a challenge that would effectively require race-based line-drawing. Ellison also wrote to congressional leaders early in Biden’s presidency urging a broad cancellation of student loan debt.

Ellison is also a big proponent of no-limits abortion. In Congress he voted against the Born-Alive Abortion Survivors Protection Act, and his platform for attorney general in 2018 promised not to defend new abortion restrictions if approved by the state legislature. In June of this year, he held a press conference with Planned Parenthood and launched an official government website advertising the availability of abortion, including for women in other states who have found Minnesota to be the go-to state in the region for the procedure.

The Republican challenger, Jim Schultz, offers a sorely needed change from the liberal ideologue currently in office. A native of South Haven, Minnesota, he attended the University of St. Thomas in St. Paul, where he spent two years in seminary. He attended Harvard Law School, where he served as national editor of the Harvard Journal of Law and Public Policy and won the Dean’s Scholar prize in constitutional law. His legal career spanned from service in an honors program in the Department of Defense legal department to one of Minnesota’s largest law firms, Dorsey & Whitney, as well as work as in-house counsel.

Schultz is respectful of the rule of law and of those who enforce the law. In other words, he is the opposite of the incumbent. Schultz has not surprisingly won a level of support from law enforcement officials and organizations that is unprecedented for a Minnesota campaign. He has promised to add dozens of prosecutors to the attorney general’s office and to proactively seek to prosecute violent offenses in high-crime counties in which county attorneys are not doing their jobs. Schultz is pro-life, a position that will likely have less room to play out in a state with a supreme court that has an activist record on abortion. But his support for religious freedom, including the protection of the conscience rights of medical professionals, would make a real difference.

Just this week he polled seven points ahead of Ellison, 49% to 42%. For Minnesotans who are concerned about the rising tide of crime and lack of respect for the rule of law, the choice could not be more clear: Elect Jim Schultz as your next attorney general.

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid. Or so some minds imagine.  

In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.” As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically. As Scalia puts it: “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute. Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to épater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.”  

On December 7, the Supreme Court will hear oral argument in Moore v. Harper. At issue in the case is the meaning of the so-called Elections Clause set forth in Article I, section 4 of the Constitution. The case has elicited a lot of apocalyptic rhetoric, often unaccompanied by any hint of the constitutional text in question. In this post and follow-on posts, I hope to begin working my way through the issues that the case presents. I will emphasize that I haven’t yet carefully studied the parties’ briefs, much less waded through the seventy or so amicus briefs. (As usual, if I discover that I have made any mistakes in what I set forth, I will undertake to correct those mistakes.)

1. Let’s start with the facts of the case. In November 2021, after receiving the 2020 census data, the North Carolina legislature enacted a new redistricting map for federal elections for its seats in the U.S. House of Representatives. Various plaintiffs sued, alleging that the new redistricting map violated the North Carolina constitution. In February 2022, the North Carolina supreme court ruled in favor of plaintiffs and ordered the state legislature to submit a remedial redistricting map. After the state legislature did so, a state superior court rejected the legislature’s remedial map and adopted a map proposed by special masters it had appointed.

2. The Elections Clause of the Constitution states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

From what I can tell, everyone* agrees that a state legislature’s enactment of a new redistricting map for House seats is an exercise of this Elections Clause. (The notion, I gather, is that determining that House members will be elected by district and defining what the congressional districts are is a necessary part of the “Manner of holding Elections for … Representatives.”)

One big issue in the case is what it means for congressional districts to “be prescribed … by the [State] Legislature.” Among other things: What counts as the “the Legislature”? Can a state constitution impose substantive limits on the Legislature’s authority under the Elections Clause? What role do the state courts have in interpreting and applying any such limits? Can the Legislature delegate its power to someone else or enact enforceable limits on how it exercises its power?

3. There is ample reason to think that the Court’s interpretation of “the Legislature” in the Elections Clause would have implications for, and should be reconciled with, other instances in which the Constitution confers authority on state “Legislature(s).” One such instance is the Electors Clause in Article II, section 1, which governs a state’s appointment of its electors to take part in the election of the president:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress….

Another such instance is Article V’s specification that a proposed constitutional amendment “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof.”

What is the meaning of “Legislature(s)” in these and other provisions? How has the Court interpreted them? Should the term have the same meaning in these provisions, or are there persuasive grounds for giving it different meanings?

4. The parties and amici in Moore v. Harper are contesting what some proponents (perhaps most prominently, law professor Michael Morley) call the independent-state-legislature doctrine and what various detractors (see law professors Vikram Amar and Akhil Amar) call the independent-state-legislature theory or notion (or worse). I’ll just call it ISL.

ISL (as Morley puts it) “is rooted in the fact that states lack inherent authority to regulate federal elections; their only power over such elections comes from the U.S. Constitution.” The Elections Clause confers that power specifically on “the Legislature” of each state, not on the state generically, so the power of the state legislature under the Elections Clause is not necessarily subject to the usual state-law constraints (though it is of course expressly subject to Congress’s authority to “make or alter” the rules governing elections for senators and representatives).

ISL has many versions. Under a strong version, the state constitution can’t constrain the legislature’s exercise of power under the Elections Clause. So if, say, the state constitution were to provide that all of the state’s congressional districts are to be wider (east to west) than they are long (north to south), the legislature could nonetheless adopt a districting plan consisting of long districts and the state courts would have no authority to enforce the state constitutional provision. Under a variant of this strong version, the state legislature might not even be able to enact a statute that binds itself in the future (and that is enforceable in state courts) or that delegates any of its Elections Clause power to another entity. So if, for example, a state statute purported to require that congressional districts meet some test of compactness, the legislature could ignore that statute. (Or, if you prefer, the legislature’s exercise of its Elections Clause power would be understood to supersede that statute.) Another variant of this strong version might hold that the governor’s usual veto power over a legislature’s exercise of its state legislative power does not apply to an exercise of its federal Elections Clause power.

Under one of several weaker versions of ISL, a state constitutional provision that is clear and specific could be judicially enforceable, but the state courts would not have leeway to construe vague constitutional provisions (e.g., “elections shall be free and equal”) in ways that are contestable. Under an even milder version, state courts could prohibit a legislature’s redistricting plan but couldn’t impose their own.

5. Consideration of the role of a state legislature in the Article V process for constitutional amendments would seem to support a very strong version of ISL. Imagine that a state constitution provided that a state legislature could not ratify a proposed federal constitutional amendment that, say, overrode a provision of the state constitution. Or suppose that a state legislature had itself enacted a statute that purported to delegate ratifying authority to a special ratification commission. Would anyone think that such provisions would bind the state legislature and be enforceable by state courts?

I’ll note that in Hawke v. Smith (1920), the Supreme Court ruled unanimously that a state constitutional provision that purported to enable the people of the state to overturn by referendum the state legislature’s ratification of a federal constitutional amendment violated Article V. Similarly, in Leser v. Garnett (1922) the Court held unanimously that state constitutional provisions that were alleged to have “render[ed] inoperative” various state legislatures’ ratification of the Nineteenth Amendment were ineffective, as “the function of a state legislature in ratifying a proposed amendment to the federal Constitution … is a federal function derived from the federal Constitution, and it transcends any limitations sought to be imposed by the people of a state.” For the same reason, it did not matter whether two states had ratified the amendment “in violation of the rules of legislative procedure prevailing in the respective states.”

Perhaps my understanding of the authority of a state legislature under Article V is mistaken. Or perhaps that authority is for some reason broader than its authority under the Elections Clause. One might argue, for example, that the amendment-ratification role is not legislative in the way that adopting rules governing elections is. Of course, a similar distinction might be drawn between the legislature’s power to appoint presidential electors under the Electors Clause (not legislative in nature) and its power to prescribe rules governing elections.

6. I intend to address the Electors Clause (on a state legislature’s appointment of presidential electors) in a later post. For now, I will simply note that I do not see how even the strongest version of ISL would allow the scenario that some critics seem to fear most—that a state legislature would override the people’s votes on Election Day and confer the state’s electoral votes on a candidate who lost on Election Day. The same section of the Constitution that contains the Electors Clause provides that “The Congress may determine the Time of chusing the Electors….” That choosing of electors happens on the date that Congress has made Election Day, even though the vote tally is not completed on that day. A state legislature has no authority to override that choice, and federal or state** courts may block any efforts to do so.

* Correction: Not everyone.

** I initially referred only to federal courts.

1986—What do actual citizens think of liberal judicial activists? By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no). All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983. Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues. 

2008—In reaction against the California supreme court’s May 2008 decision inventing a state constitutional right to same-sex marriage, California voters adopt Proposition 8, which adds to the state constitution a provision expressly declaring that “Only marriage between a man and a woman is valid or recognized in California.” 

But Proposition 8 will itself soon become the victim of egregious acts of liberal judicial activism. 

2016—In defiance of governing Third Circuit precedent holding that Title VII’s bar on sex discrimination in employment does not encompass a bar on sexual-orientation discrimination, federal district judge Cathy Bissoon (in EEOC v. Scott Medical Health Center) denies an employer’s motion to dismiss the EEOC’s claim of sexual-orientation discrimination under Title VII.   

As the Washington Post reported two weeks ago, Justice Ketanji Brown Jackson spoke “twice as much as her next most loquacious colleague” during the Court’s first session of eight oral arguments. Adam Feldman, who provided the word counts that the Washington Post used, reports that Jackson was the most talkative justice in the UNC racial-preferences case argued on Monday. By Feldman’s tally, she spoke 2,894 words—more than 1,100 words than the next most active justice, Justice Sotomayor. Jackson’s tally is not only more than 60% higher than Sotomayor’s; she singly accounted for 23% of the total words said by the nine justices.

Jackson’s extraordinary loquaciousness might be welcome if she were asking especially good questions. That does not seem to me to be the case. Baffled by some praise I’ve seen of Jackson’s questioning in the UNC case, I figured I’d offer my own review. So let’s take a look at Jackson’s questioning of SFFA’s counsel:

1. Jackson leads off by asking SFFA’s counsel “whether or not race is being used singularly to let people in.” (Transcript 11:9-12). Her question bespeaks the same fundamental confusion as Sotomayor’s. If race were “being used singularly”—independent of all other considerations—that would mean that UNC is admitting every African-American applicant. Obviously, no one contends that is the case. Equally obviously, the fact that race is not “being used singularly” does not speak meaningfully to the question whether UNC is engaging in racial discrimination in support of some applicants and against other applicants. To answer that question, one needs to inquire whether there were applicants for whom (as SFFA’s counsel put it) “race made the difference” in their getting accepted—applicants, in other words, who would not have been admitted but for racial preference in their favor. Even UNC’s expert agreed that there were such applicants.

2. Jackson spends several minutes (five pages of the transcript—pp. 18-23) trying to argue that the individual members of SFFA don’t have standing to challenge the racial discrimination against them. This is an argument that UNC, for good reason, never made, as it finds no support in Supreme Court precedent. (UNC made a very different argument that SFFA lacked standing because it supposedly “lacked genuine members when it sued.”)

Jackson’s argument is a sorry jumble. She argues first that UNC “is not requiring anybody to give their race at the beginning.” So what? Is an employer free to discriminate on the basis of race—and does a victim of such discrimination lack standing to challenge that discrimination—if the employer does not require applicants to “give their race”? Absurd.

Jackson argues next that standing might exist only in cases like Gratz v. Bollinger (2003) in which the plaintiff was challenging “a set-aside.” Here, by contrast, “No one’s automatically getting in because race is being used.” But Gratz can’t plausibly be read so narrowly, and the Court’s opinion the same day in Grutter v. Bollinger (2003), which involved the University of Michigan’s “highly individualized, holistic review of each applicant’s file,” repudiates Jackson’s theory. Both Gratz and Grutter invoke a 1993 ruling in which the Court, citing Regents of University of California (1978) and other precedents, states:

Singly and collectively, these cases stand for the following proposition: When the government erects a barrier that makes it more difficult for members of one group to obtain a benefit than it is for members of another group, a member of the former group seeking to challenge the barrier need not allege that he would have obtained the benefit but for the barrier in order to establish standing. The “injury in fact” in an equal protection case of this variety is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit.

It’s difficult to imagine that Jackson (or anyone else) would be inclined to think that an African-American applicant didn’t have standing to challenge a college’s multifactor admissions test that included a racial preference for whites.

When SFFA counsel pointed out that Grutter defeated Jackson’s “set-aside” limitation, Jackson replied: “But you’ve said Grutter needs to be overruled. So we can’t—I don’t think we can use that decision.” Jackson’s reply is obtuse. A party can obviously seek to overturn one holding in a case without rejecting other parts of it. Plus, the standing holding in SFFA itself rested on earlier precedent. Jackson somehow tells SFFA counsel that she is “worried that you’re asking us for a special standing rule,” but it is Jackson’s approach that would be a sharp deviation from precedent.

To compound the confusion, Jackson states that she thought that “anyone [of any race] could get a point for racial diversity.” I find it difficult to understand how anyone who read the briefs in this case could think that. SFFA states in its opening brief what SFFA’s counsel repeated at argument:

For more than three decades, UNC has awarded racial preferences to “underrepresented minorities,” which UNC defines as African Americans, Hispanics, and Native Americans. Asian Americans and whites don’t receive a racial preference; UNC doesn’t consider them “underrepresented” because their percentage at UNC is higher “‘than their percentage within the general population in North Carolina.’”

UNC does not contest this elementary fact. (See UNC brief at 7 & n. 1.)

3. Jackson asks whether “we have a constitutional violation” when a student “checks a [race] box … and the university … doesn’t take it into account in any way in the application.” The obvious answer to this utterly irrelevant question is no, and Jackson’s stated concern that students might otherwise “have to mask their identities when they come into contact with the admissions office” is bizarre. Indeed, Jackson overlooks that it is Asian Americans who often try to “mask their identities” (e.g., by refusing to check the race box) in order to escape the detrimental use that they fear the university will make of their race. (Transcript 31-32.)

4. Jackson spends several minutes trying to argue that if a university can’t give racial preferences (“can’t value race”), that might “have the potential of causing more of an equal protection problem than it is solving.” She presents a long hypothetical involving two applicants. One has a long family legacy of attending UNC, and the other is the descendant of North Carolina slaves. Each states that he would like to “honor my family’s legacy by going to this school.” Jackson asks that if it’s okay to give the first applicant a legacy benefit, why isn’t it an Equal Protection violation to exclude consideration of the second applicant’s race? (Transcript 64-69.)

An Equal Protection rule that does not allow race-conscious admissions would still allow an admissions office to credit the evident socioeconomic diversity that the second applicant would bring. Absent evidence that UNC allows legacy admissions because of their racially disparate impact, there would be no Equal Protection violation in disallowing a factor (race) that the Equal Protection Clause is deemed to forbid while allowing a factor that it allows. (UNC’s use of legacy preferences, though, might well undermine its claim to regard racial diversity as a compelling interest.)

Various of the confusions above recur, including in Jackson’s softball questioning of other counsel.

1979—President Carter appoints Harry Pregerson to the Ninth Circuit, where Pregerson will remain in active service for the next 36 years. 

The newly created seat to which Carter appoints Pregerson is one of ten additional seats on the Ninth Circuit created by a 1978 judicial-expansion act. That act increased the seats on the Ninth Circuit from 13 to 23—a 77% increase. Carter will fill all of the new seats (as well as some of the old ones). By appointing so many judges like Pregerson, Carter will turn the Ninth Circuit into a notorious bastion of liberal judicial activism. 

2004—In a civil-forfeiture proceeding (titled United States v. $242,484.00), Judge Rosemary Barkett dissents from the en banc Eleventh Circuit’s ruling that the government had established probable cause to believe that $242,484 in cash seized by DEA agents from airline passenger Deborah Stanford was connected to illegal drug activity. The 10-member majority rests its conclusion on the combined force of facts that include:

(1) Stanford was carrying 18,362 bills worth nearly a quarter of a million dollars and weighing some 40 pounds. Legitimate businesses generally find better, safer means of transporting large quantities of cash than stuffing it in a backpack. But other means would have generated a currency-transaction report.

(2) The bills were bundled in rubber bands in various denominations in a manner associated with drug organizations, and they were wrapped in a cellophane-type material known to be used by drug dealers to prevent discovery by drug-sniffing dogs.

(3) Stanford was traveling between New York and Miami, a known flight corridor for drug proceeds.

(4) As drug couriers often do, Stanford purchased her tickets with cash and changed her return date twice.

(5) Stanford insisted that she was unable to identify the people who gave her the cash, and she claimed not to know where she had met them and where she had stayed in New York.

(6) Stanford told conflicting stories about why she had traveled to New York, and she had no documentation to support her stories or the transfer of cash.

(7) A dog trained to detect narcotics identified the smell of narcotics from the cash in her backpack (after a hole had been poked in the cellophane wrapping).

Purporting to apply a “common sense view to the realities of normal life,” Barkett opines that these circumstances “are insufficient to find that the seized money was tied in a substantial way to an illegal drug transaction.” Alas, Barkett merely provides further compelling evidence that she has little sense, common or otherwise.  

Try to picture this: One woman sues another over injuries from a car accident and seeks $3.5 million in damages. In closing arguments to the jury, defense counsel states that the plaintiff’s testimony was “confrontational” and “combative.” Defense counsel states that the case involves “a simple car accident” and suggests that the plaintiff is seeking a financial windfall. Defense counsel points out that three of the plaintiff’s witnesses used the same phrase—“life of the party”—to describe what the plaintiff was like before the accident and suggests that “someone had told them to say that.”

What do you know or surmise about the plaintiff?

In a baffling opinion (in Henderson v. Thompson), the Washington supreme court, proclaiming that “Racism is endemic,” has concluded that the language used by defense counsel “called on racist tropes.” The terms confrontational and combative “evoke the harmful stereotype of an ‘angry Black woman.’” (Hmmm, who’s the racist here?) The suggestion that the plaintiff, Janelle Henderson, was seeking a windfall “appealed to … negative and false stereotypes about Black women being untrustworthy, lazy, deceptive, and greedy.” And the insinuation that Henderson had coordinated the testimony of her witnesses was supposedly “akin to the prosecutorial misconduct [the court] had condemned [in another case], where the prosecutor asserted that Black witnesses were unreliable because there was a ‘code’ that ‘Black folk don’t testify against Black folk.’”

At trial, the jury ruled in favor of Henderson and awarded her $9,200. The Washington supreme court calls that amount “astonishing small,” but its characterization makes no sense. The defendant presented a video at trial that indicated that Henderson was faking the extent of her injuries, and the jury evidently agreed. The Washington supreme court claims that defense counsel “proposed” an award of $60,000 in closing argument, but its own account shows that defense counsel said that should be the maximum award if the jury “found that Henderson was injured and her condition was aggravated by the collision.”

The Washington supreme court ruled that the trial court, in deciding whether to grant Henderson’s request for a new trial, should have asked “whether an objective observer (one who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State) could view race as a factor in the verdict.” If the answer is yes, as the supreme court says it is, then the trial court “must presume” that racial bias affected the verdict. The party seeking to uphold the verdict “must prove how it did not.” For flimsy reasons, the supreme court also ordered that the case be reassigned to another judge on remand.

Hans Bader spells out in this post how the ruling “effectively gives black plaintiffs a racial advantage in lawsuits against whites”—black defendants, too, I would think—how it draws on Critical Race Theory, and how it violates Equal Protection principles. I’ll add some related observations here.

What if Henderson’s testimony actually was confrontational and combative? Is it really the case that a white witness’s testimony can be criticized on those grounds but a black witness’s can’t? Isn’t it routine for defense counsel to argue that the damages sought by plaintiff are excessive? Mightn’t all plaintiffs be accused of seeking windfalls? Are black plaintiffs exempt from charges of coordinating testimony? And how does defense counsel’s mild suggestion at all “akin” to the charge of a supposed “code” that “Black folk don’t testify against Black folk”?

Oddly, the Washington supreme court doesn’t bother to spell out the burden of proof that the defendant will bear in showing that racial bias didn’t affect the verdict. If the standard is the ordinary civil standard of preponderance of the evidence, that standard could be met by, say, defense counsel testifying that she had no intention of appealing to racial bias and by the trial court’s crediting counsel’s testimony. But that is obviously not what the supreme court is encouraging. And perhaps it even envisions that the party seeking to uphold the verdict must somehow prove that “implicit, institutional, and unconscious biases” played no role.

Harvard’s lawyer Seth Waxman, who served as Solicitor General during President Clinton’s second term, is such a talented advocate that his striking inability to explain away Harvard’s admissions practices ought to seal Harvard’s doom.

SFFA compellingly argues that the so-called “personal rating”—which is actually an admissions officer’s impersonal assessment of an applicant’s personal qualities based on the applicant’s cold file—is a means by which Harvard masks its discrimination against Asian-American applicants. As it happens, African-American applicants consistently get the best personal ratings, while Asian-American applicants consistently get the worst ratings. That pattern does not exist in the ratings provided by in-person alumni interviewers. Even the district court that ruled against SFFA found “a statistically significant and negative relationship between Asian American identity and the personal rating assigned by Harvard admissions officers.”

When Justice Alito asked Waxman to explain the personal ratings that Asian-American applicants receive, Waxman spun in circles for several minutes: The “numerical disparity” on the personal rating was “slight.” The “only model that can be created to figure out what was going into the personal rating” couldn’t include all the relevant data. The personal rating is “simply a number” that is assigned by a first reader “just as a matter of triage.” (See transcript 54-60.)

Chief Justice Roberts asked Waxman about this academic decile chart, which shows that an African American in the fourth-lowest academic decile (that is, in the 30% to 39% range) has a higher chance of being admitted than an Asian American in the top decile.

Waxman responded that the academic index is based only on “high school grades and test scores” and that Harvard “doesn’t even use” the academic index as a metric. (Transcript 64-65.) But Harvard obviously does give heavy weight to high-school grades and test scores, so Waxman’s response provides no answer to the stark disparity that the chart reveals.

As Waxman acknowledged, the district court found that race was determinative for a full 45% of African-American and Hispanic applicants admitted to Harvard—i.e., that they would not have been admitted without racial preferences. (Transcript 83:8-11; see SFFA lawyer at 13:15-17.) In a zero-sum system, those admissions operated to the disadvantage of some Asian-American applicants.

The oral argument did not address Harvard’s continual monitoring of the racial composition of its admittees, which, contra the district court’s finding, seems explicable only as a means to ensure racial balancing. Waxman’s brief for Harvard unpersuasively contended that the monitoring was done to “identify anomalies in the representation of students with certain characteristics, including race”—as if the concept of “anomalies” did not presuppose some sort of racial balancing.

Yesterday’s oral arguments did not display Justice Sotomayor at her best. Or at least we should hope they didn’t.

Sotomayor somehow thought it meaningful to insist that “Race alone doesn’t account for why someone’s admitted or not admitted” (UNC transcript 17:3-4) and that race “is never solely determinative” (156:21-22). But the relevant question in determining whether someone has been the beneficiary of racial discrimination—whether racial discrimination can be said to have been determinative for that person’s admission—is whether that person would not have been admitted but for his race. As Harvard’s lawyer Seth Waxman acknowledged, the district court in the Harvard case found that race was determinative for a full 45% of African-American and Hispanic applicants admitted to Harvard. (Harvard transcript, 83:8-11; see SFFA lawyer at 13:15-17.)

Sotomayor also gave the wildly false impression that racial preferences come into play only to “break the tie” among the sort of “super-qualified” “equal applicants” who “have perfect scores on every metric.” (Harvard transcript, 36:6-37:2.) That is a ludicrous misstatement of the role and magnitude of racial preferences at Harvard and elsewhere.

Sotomayor also botched the elementary distinction between de jure (in law) and de facto (in fact) segregation. After she stated that “we certainly have de jure segregation” (Harvard transcript 20:13-14), a suitably puzzled Justice Alito asked SFFA’s counsel whether he was “aware of de jure segregation today” (21:3-4). When counsel stated that he was not, Sotomayor replied with this rhetorical question and her misunderstanding of what de jure means:

It’s not clear that there’s segregation between there are large swaths of the country with residential segregation, there are large numbers of schools in our country that have people of just one race, there are school districts that have only kids of one race and not multiple races or not white people?

De jure to me means places are segregated. The causes may be different, but places are segregated in our country.

On a much lesser note, Sotomayor gave another illustration of her propensity for malaprops. In this passage from the UNC argument in which she challenged the models, or simulations, that SFFA had presented of alternative race-neutral means of attaining racial diversity in a student body, she alternates between simulation(s) and stimulation(s). (The passage corresponds to the UNC transcript 47:5-48:6. I hear the proper term at 47:6, 47:18, and 48:4 and the malaprop at 47:11, 47:13, and 47:24. The transcriber missed the errors, as I also did when I listened to the livestream.) When Sotomayor again said stimulation in the Harvard argument, Harvard counsel Seth Waxman corrected her. (74:21-75:1.)

In yesterday’s oral arguments, Justice Kagan asserted:

I thought that part of what it meant to be an American and to believe in American pluralism is that actually our institutions, you know, are reflective of who we are as — as a people in all our variety. [Transcript 38:24-39:4]

Kagan seems quite clearly to be pushing a concept of equality of result. Kagan includes in “our institutions” not just governmental bodies and universities but also “law firms,” “medical facilities,” and “businesses” (159:11-20). Under her vision, requiring a racial balancing—at least rough demographic quotas—in those institutions that is “reflective” of the American “people in all our variety” would seem to be just “part of what it mean[s] to be an American.”

An alternative and, I would argue, a much sounder understanding of the American creed is that we should strive to provide everyone equality of opportunity and that we should hope and expect that when we do so, talented people of every race and ethnicity will succeed.

There is, to be sure, room to dispute where the line falls between equality of opportunity and equality of result. But Kagan shows no interest in discerning or abiding by that line.

The oral arguments in both of today’s Students for Fair Admissions cases highlighted the offensiveness to the Constitution inherent in the use of race in university admissions. Six of the justices expressed skepticism toward such policies and did not get satisfactory answers from the universities’ counsel as to how the consideration of race could be limited once the door is opened to it. The justices also made significant points about how the consideration of race qua race fails to take into consideration other important aspects of diversity, be it socioeconomic status, religion, or other factors. Discussion of original meaning, an issue raised by justices on both sides, failed to rebut the evidence that the Fourteenth Amendment’s goal was to eliminate racial classifications in the law.

Justices Sotomayor and Jackson seemed to have trouble acknowledging that race is even being considered as a decisive factor or that it hurts anyone despite the zero-sum nature of admissions. The attorneys representing the universities unconvincingly tried to argue that the racial classifications do not have a meaningful effect on admissions . . . yet somehow they also are the only thing standing between the present situation and resegregation. As for the question of when would be the endpoint for such policies—the Court in 2003 expected there would be such an endpoint, and several of the justices asked about it today—the universities could not identify one, which is telling. Hopefully the Court will therefore answer the question by bringing about that endpoint itself instead of indulging continuing and widespread discriminatory practices by college administrators.

1972—By a vote of 5 to 4, the en banc D.C. Circuit, in an opinion by Judge J. Skelly Wright in United States v. Robinson, rules that a police officer violated the Fourth Amendment when, in the course of searching a person whom he had lawfully arrested, he opened up a crumpled cigarette package—which turned out to contain heroin—that he found in the person’s pocket. The D.C. Circuit overturns the resulting conviction for drug offenses.

In dissent, Judge Malcolm Wilkey faults Wright for ignoring “long-established doctrine” and for what Wilkey calls Wright’s “usual flat error regarding the established facts.” On review, the Supreme Court rules 6 to 3 (with Justices Douglas, Brennan, and Marshall in dissent) that the search and seizure “were permissible under established Fourth Amendment law.” 

2013—Through misuse of procedural rules, federal district judge Shira Scheindlin managed over the years to (in the words of a New York Times article) “exercise near exclusive jurisdiction in deciding whether the [New York City] Police Department’s [stop-and-frisk] policies adhere to Fourth Amendment restrictions.”  

But Scheindlin’s shenanigans (on this matter, at least) finally come to an end, as a Second Circuit panel determines (in Ligon v. City of New York) that her actions and her “public statements purporting to respond publicly to criticism” warrant removing her from any further role in such cases. Among her objectionable actions: “suggesting that the plaintiffs bring a lawsuit, outlining the basis for the suit, intimating her view of its merit, stating how she would rule on the plaintiffs’ document request in that suit, and telling the plaintiffs that she would take it as a related case.”  

2006—A South Dakota law enacted in 2005 sets forth informed-consent provisions for abortion, including that the woman undergoing abortion be informed that “the abortion will terminate the life of a whole, separate, unique living human being.” The law defines “human being” as an “individual living member of the species Homo sapiens.”

In Planned Parenthood Minnesota v. Rounds, a divided panel of the Eighth Circuit affirms an injunction preventing the entire 2005 law from going into effect. In her majority opinion, Judge Diana Murphy treats as a factual finding the district court’s determination that the statement that an abortion “will terminate the life of a whole, separate, unique living human being” is a value judgment, rather than a medical fact, and she relies on a declaration submitted by one of the plaintiffs to provide evidentiary support for that supposed factual finding. The statement, she concludes, “could be found to violate both the First Amendment rights of physicians and the due process rights of women seeking abortion.” In dissent, Judge Raymond Gruender points out that the statement is “an unremarkable tautology”—“a restatement of the definition of ‘abortion’”—and is “truthful, non-misleading, and non-ideological on its face.”

In June 2008, the Eighth Circuit, acting en banc, reverses the panel decision by a 7-4 vote, with Judge Gruender penning the majority opinion and Judge Murphy the dissent.  

2019—At a Georgetown law school event with Justice Ruth Bader Ginsburg, Bill Clinton discloses that he discussed  Roe v. Wade  with Ginsburg before nominating her to the Supreme Court in 1993, that their discussion was important to “why I thought I should appoint her,” and that Ginsburg “knew this perfectly well.”  

Clinton’s disclosure is in serious tension with Ginsburg’s sworn testimony to the Senate in 1993 that no one involved in the selection process “discussed with me any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning my position on such case, issue, or question.” (More here.) 

Adam White has written an op-ed in the New York Times describing Chief Justice John Roberts as still the dominant force on the Supreme Court and adds that that is a “good thing.” He widely praises “Roberts’s style of restraint amid the court’s pronounced conservative turn” and touts the supposed virtues of the Court having “at least one self-consciously institutionalist justice.” Specifically: “He sees judicial self-restraint and incrementalism as necessary for limiting the court’s own encroachment on American politics.”

I have admired Adam’s work since we were co-clerks, but I respectfully dissent.

True institutionalism is that which keeps the Court within the bounds of the law. Anything else over the long term will not help the institution, although it may win applause from certain quarters. That applause largely comes from people trying to butter the justice up to win him in future cases, from his colleagues on the Court (especially Elena Kagan) to the legal commentariat. And it is short-lived: Witness the liberal outrage at Justice Anthony Kennedy’s retirement. Even those who liked the results of Kennedy’s decisions are not talking about his overarching vision of the Constitution as the model for the next generation. The same is true of another former swing justice, Sandra Day O’Connor. Sadly, it is not uncommon to see students of recent history misidentify the more doctrinaire Ruth Bader Ginsburg as the first woman to serve on the Court.

When identifying Roberts and his influence, which Roberts are we talking about? During his first six years on the bench, he had a commendable record as a constitutionalist. When it was time to decide the constitutionality of Obamacare in 2012, the chief justice voted in conference to strike down the law, consistent with his early record, only to change his vote for reasons that were as transparently political as we have ever seen on the bench. In 2020, he flip-flopped in major cases about abortion and immigration. That same year, the eloquent dissenter who refused to rewrite the Constitution to incorporate same-sex marriage in 2015 joined a rewriting of the Civil Rights Act of 1964 to incorporate sexual orientation and gender identity.

Unfortunately, Roberts’ brand of institutionalism seems to be a proxy for political calculation at the expense of the rule of law. It may carry short-term appeal, but over the long term, it leaves a bitter aftertaste, to the extent it is remembered at all. Far from limiting the Court’s encroachment on politics, this approach extends it.

Roberts is known to be concerned with his place in history. But the most influential justices, for better or worse, do not follow this brand of “institutionalism.” Think of justices like Earl Warren and William Brennan on one end of the spectrum and Antonin Scalia and Clarence Thomas on the other. For all their differences, they were bold in pursuing their visions of the law and did not behave like technocrats with a narrow view of the moment they occupied.

This past term, Roberts had the opportunity to be part of reversing one of the greatest constitutional errors in the history of the Court, Roe v. Wade. Instead, he penned a separate concurrence joined by no one. White suggests the opinion was defensible on grounds that the Court should have ruled more narrowly than on the overarching right to abortion, but there was no cogent or intellectually honest way the Court could have ruled on the Mississippi abortion statute at issue without addressing the standard of review in abortion cases more broadly. Indeed, Roberts’ opinion did propose replacing the standard in prior abortion decisions with an overarching rule of his own based on whether a restriction left women a “reasonable opportunity” to abort. That approach did not win any votes because it was extraconstitutional and too muddled to offer people clear direction on the law.

Roberts missed this historic moment, and it is unlikely that another of that magnitude will come during his or his colleagues’ tenures. His rationale for abstaining from the Court’s opinion was not truly legal. It was driven by external political or policy considerations, none of which the chief justice has the authority or even the expertise to evaluate.

This moment of history truly belonged more to a justice no longer on the Court—Scalia—and to Thomas than to the current chief justice. The late jurist and the current senior associate justice did more than any other justices in living memory to change the way we think about the law, including in sharp, unequivocal takedowns of Roe. So this is less the Roberts Court than the Court of the five originalists: Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. They are the ones who withstood the most intense political pressure—indeed, threats to their own lives—to forge the latest chapter in the history of the Court. Like Scalia, they embraced constitutionalism, not “institutionalism” of the Roberts variety. And that is ultimately best for the institution of the Court.

A month ago, a Seattle Times columnist falsely insinuated that Coach Joe Kennedy, who won a big First Amendment victory in June in Kennedy v. Bremerton School District, had no interest in getting his coaching job back. The claim was part of a broader campaign of smears and distortions that the Left has waged against Coach Kennedy and his lawyers and against the Supreme Court majority.

Vindicating my account that Coach Kennedy has been looking forward to resuming his coaching duties, ABC News reports that the Bremerton School District and Kennedy have agreed that Kennedy will be reinstated as assistant coach of the Bremerton High School football team some time between now and mid-March 2023. (A school-district spokesman says that there remain some issues to resolve.)

Last Friday, Justice Elena Kagan expressed an interest in having the Court “get back to finding common ground, to ratcheting down the level of decision-making so we can reach compromises.” I can’t say that I recall her displaying such an interest when she has found herself part of a majority reaching a result she embraces—e.g., the sweeping 5-4 ruling in Obergefell v. Hodges (2015) inventing a constitutional right to same-sex marriage. Her interest instead seems opportunistic—a ploy to entice a coalescing majority to narrow or muddle a ruling in exchange for her jumping on board.

With oral arguments in the Harvard/UNC racial-preferences cases just four days away, I wonder what Kagan’s strategy might be to minimize the potential impact of the rulings in the cases. She is a lot savvier than I am, so I don’t have a lot of confidence in my ability to speculate, but I’ll give it a go.

Let’s consider some of the options:

1. Might Kagan prefer to see the meaning of Title VI decoupled from the Equal Protection Clause so that the Court in both cases would rule only that Harvard and UNC have violated Title VI? I’ve argued that the strong version of stare decisis that ordinarily applies to statutory precedent shouldn’t apply to the Court’s egregiously wrong misreading of Title VI, so I think that there is plenty of room for the Court to revisit Title VI and to rule against Harvard and UNC based on what even Justice John Paul Stevens (in Regents of University of California v. Bakke (1978)) recognized to be its “crystal clear” meaning.

From Kagan’s perspective, the upside of such a ruling is that Grutter v. Bollinger would be untouched as precedent on the Equal Protection issue and that Congress therefore might be free to amend Title VI to allow the use of racial preferences. I would be very happy to see the Court rule on the basis of Title VI’s actual meaning. I would also welcome any political battle in Congress over amending Title VI. But despite her rhetoric of “ratcheting down the level of decision-making so we can reach compromises,” I doubt that Kagan would see it as advantageous to have the Court pursue this path. I also doubt that she could bring herself to rule against racial preferences in admissions.

2. As Justice Powell explained in his Bakke opinion, when the Court heard oral argument in 1977 “the parties [had] neither briefed nor argued the applicability of Title VI,” so the Court requested supplemental briefing on the issue. Here likewise, the parties haven’t challenged Grutter’s unreasoned and cursory holding that Title VI has the same meaning as the Equal Protection Clause, and they have directed all of their argument to the Equal Protection issue. Might Kagan see an upside to pushing for supplemental briefing, even if she isn’t sure that she would want to reconsider the Title VI holding?

One possible upside from her perspective might be fostering a schism among the conservative justices and perhaps generating a ruling that (much like Bakke) doesn’t have an actual majority for any holding. But there is little reason to think that a justice who would prefer to rule against Harvard and UNC on Title VI grounds wouldn’t also join a ruling against them on Equal Protection grounds if that were necessary to form a majority holding.

Another possible upside would be simple delay. But given how early in the term these cases are being argued, there is no reason to think that supplemental briefing would push a decision past the end of the term (i.e., end of June).

3. Might Kagan try to foster a ruling that Harvard and UNC have (as SFFA argues) failed to comply with Grutter and that it is therefore unnecessary to decide whether to overrule Grutter? Again, I’m very skeptical that Kagan would be willing to rule against racial preferences in admissions, no matter how narrow the ruling. Even if she were open to that, any appeal in this approach would depend very heavily on how the majority opinion was actually written. The more that the majority tried to give Grutter’s nominal strict scrutiny some real teeth, the less inclined Kagan would be to join. And it seems unlikely that a majority of justices would settle for some sort of nominal defeat for Harvard and UNC (e.g., a directive to consider race-neutral means of achieving diversity).

4. Might Kagan, along the lines of Yale law professor Justin Driver’s proposal, urge the Court to sunset racial preferences in 2028, consistent with Justice O’Connor’s stated expectation in Grutter that racial preferences would be unnecessary in 25 years? Kagan might well accept such a compromise, but there is no reason why any conservative justice should.

5. The only remaining option I see strikes me as the most likely one. Kagan might well decide that her only choice is to try to intimidate her colleagues into not overruling Grutter and to make them pay a political cost for doing so. I doubt very much that an intimidation campaign will succeed, and, given the broad unpopularity of racial preferences in admissions, any justice who considers the political fallout of decisions has little reason for concern.

2020—A divided Ninth Circuit panel rules (in  Cortesluna v. Leon) that the district court wrongly determined that a police officer was entitled to qualified immunity on a claim that he used excessive force in making an arrest. The majority concludes that “existing precedent squarely governs the specific facts of this case,” but Judge Daniel P. Collins in dissent observes that the facts in that supposedly precedential case are “materially distinguishable from this case”: “There is a very significant difference between using a knee to hold down a person who is suspected of a serious violent crime who is armed with a knife (as in this case) and using a knee to hold down a noisy neighbor armed with nothing more than a sandwich (as in [the precedent cited by the majority]).” 

In October 2021, the Supreme Court, citing Collins’s dissent with approval, will summarily reverse the Ninth Circuit ruling. 

In a New York Times op-ed, Yale law professor Justin Driver contends that “the last best hope to extend affirmative action [in university admissions] beyond the coming year” lies in Justice O’Connor’s statement near the end of her majority opinion in Grutter v. Bollinger (2003): “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest” in student body diversity. In order to try to bolster that prospect, Driver characterizes O’Connor’s “expect[ation]” as a “sunset provision” and argues that “the justices have repeatedly treated the 25-year sunset as legally significant.”

Even with the various reservations that he inserts, I think that Driver dramatically overstates his claim that “the justices” have regarded O’Connor’s “25 years” expectation as “legally significant.”

In Grutter itself, Justice Ginsburg and Justice Breyer signed onto O’Connor’s majority opinion, but Ginsburg, joined by Breyer, wrote separately to express her doubts that racial preferences could be sunset so soon: “one may hope, but not firmly forecast,” such a result, she wrote.

Driver states that in his dissent in Grutter Justice Kennedy “quipped that the decision could be understood as containing ‘its own self-destruct mechanism.’”  What Kennedy actually wrote was: “As to the interpretation that the opinion contains its own self-destruct mechanism, the majority’s abandonment of strict scrutiny undermines this objective.” In other words, he was complaining (“in frustration,” as Driver acknowledges) that O’Connor’s expectation could not be taken seriously. Kennedy also joined the dissent of Chief Justice Rehnquist, who argued that O’Connor’s “discussions of a time limit are the vaguest of assurances” and would “permit the Law School’s use of racial preferences on a seemingly permanent basis.”

Driver observes that Justice Thomas, in his separate opinion in Grutter, “concurred” with O’Connor’s majority that the use of racial preferences “would be unconstitutional in a quarter-century.” But as Driver acknowledges, Thomas seems to have been trying to hoist O’Connor on her own petard. Thomas (joined by Justice Scalia) in fact wrote: “While I agree that in 25 years the practices of the Law School will be illegal, they are, for the reasons I have given, illegal now.” (Emphasis added.) He went on to ridicule the notion that anything meaningful would change in 25 years: “No one can seriously contend, and the Court does not, that the racial gap in academic credentials will disappear in 25 years.” Thomas (and Scalia) also joined Rehnquist’s dissent.

Driver also cites various comments by justices at oral argument over the years, but I don’t see what those comments establish. Justice Breyer’s statement that “Grutter said it would be good law for at least 25 years” rejects the notion that O’Connor imposed a 25-year sunset. And the statements by Chief Justice Roberts and Justice Scalia that Driver invokes were, in Driver’s words, merely “aimed to reveal that Texas had no intention of dropping its defense of affirmative action when the designated [25-year] time arrived.”

Perhaps more importantly, Driver fails to note that O’Connor contemplated that universities would be attentive to the fact that “race-conscious admissions policies … are potentially so dangerous” and would, she clearly hoped, adopt their own “sunset provisions” and “periodic reviews.” Indeed, she stated that universities “can and should draw on the most promising aspects of [the] race-neutral alternatives” that universities in states that banned racial preferences were developing. She expressly predicated her 25-year expectation on “tak[ing] the Law School at its word that it would ‘like nothing better than to find a race-neutral admissions formula’ and will terminate its race-conscious admissions program as soon as practicable.”

As Students For Fair Admissions points out, Harvard and the University of North Carolina have done nothing along these lines over the past nineteen years. It would make no sense to reward them by giving them six more years. Nor is that sort of legislative largesse within a proper understanding of the judicial role.

1999—The Montana supreme court rules (in Armstrong v. State) that a state law that allows only licensed physicians to perform abortions violates the state constitutional rights of women seeking abortion. (The court’s ruling comes in the aftermath of the U.S. Supreme Court’s ruling in Mazurek v. Armstrong (1997) that the law did not violate the federal Constitution.) 

The oral arguments in Students For Fair Admissions’ challenges to the use of racial preferences by the admissions offices of Harvard College and the University of North Carolina take place next Monday. This coming Friday evening—three days before the oral arguments—I’ll be at Princeton University to speak on the topic “Are Racial Preferences in College Admissions Lawful?” I’ll discuss the Harvard and UNC cases and provide some guidance on what to look for in the oral arguments.

The event (at 6 p.m. in McCosh 4) is co-sponsored by Princeton’s Federalist Society chapter (yes, the Federalist Society has some undergrad chapters) and the Princeton Open Campus Coalition. I’m grateful that Princeton philosophy professor Thomas Kelly will also take part.

Something unusual is happening in the Sixth Circuit—or, rather, the usual somehow isn’t happening. More than a year ago, the nonprofit group Consumers’ Research and various other parties filed a petition in the Sixth Circuit seeking review of a Federal Communications Commission order concerning the FCC’s Universal Service Fund and the means by which the FCC raises nearly ten billion dollars annually for that Fund. (I’ll avoid getting into the weeds here, even as the order brings back fond memories of my years working for Bill Barr as a telecom lawyer.) Their petition for review sets forth various grounds for their challenge, the first five of which involve alleged violations of the nondelegation doctrine.

The case (Consumers’ Research v. Federal Communications Commission, No. 21-3886) is still stuck in the starting blocks at the Sixth Circuit because every motion filed in the case seems to have disappeared into an abyss.

In January 2022, before any briefing began, the FCC filed a motion to stay the matter, pending the issuance of a non-binding FCC report to Congress. Consumers’ Research opposed the motion. But the motion sat undecided for so long that it became moot, as the FCC issued the promised report in August.

Consumers’ Research then moved to set a briefing schedule, but after two-and-a-half months the Sixth Circuit has not ruled on that basic motion.

Several proposed amici, including a former FCC Commissioner, sought leave to submit amicus briefs in support of Consumers’ Research. Their motions for leave remain pending after a month.

These types of motions are so routine that they typically go to a single judge for adjudication because they don’t require any difficult decisions or a written opinion. But without a ruling, it appears that the case cannot move forward.

Consumers’ Research evidently apparently tried to jump-start the case by filing its opening brief in September, but more than a month later the FCC has not filed its response brief. The FCC is presumably refusing to file until the Court issues a briefing schedule.

At this point, it is unclear when, if ever, the case will complete briefing, let alone reach adjudication. It is also unclear what exactly is causing this inactivity on such routine motions, for nearly the entire calendar year.

1957—No case is too easy for a liberal judicial activist to mess up. In Accardo v. United States, the D.C. Circuit majority concludes, in one apt sentence, that the evidence at trial was sufficient to support a conviction for attempt to commit robbery. What was that evidence? As Judge David L. Bazelon, in dissent, summarizes it: “The complainant, the proprietor of a gas station, testified that, after he had locked up for the night, a man rapped at his door and motioned to him to come to the door. He motioned to the man to go to an open window, which the man did. There followed some talk about a fan belt for an automobile and then the man produced a gun and said, ‘Now, you go over and unlock that door. I’m coming in.’”

Bazelon concludes that the defendant was “entitled to a judgment of acquittal because there was no evidence from which the jury could conclude beyond a reasonable doubt that his purpose in demanding entry was to commit robbery.” “The only evidence relied on to prove the necessary intent,” Bazelon complains, “is the fact that he demanded entry at the point of a gun”! In Bazelon’s confused mind, the possibility that several other intents (murder or mayhem, for example) could be inferred from demanding entry at gunpoint somehow means that the jury did not have sufficient evidence to find beyond a reasonable doubt that the defendant intended to commit robbery.

2001—“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” declares Second Circuit judge Sonia Sotomayor. In the course of her muddled speech to a Berkeley audience, Sotomayor calls into question the desirability of the traditional norm of judicial impartiality and displays a crude quota mentality.  

Implementing his promise—or, rather, threat—to select justices based on their willingness to indulge their “deepest values,” “core concerns,” and “the depth and breadth of [their] empathy,” President Obama in May 2009 makes Sotomayor his first pick for the Supreme Court. 

2006—Who knew that the Declaration of Independence was a declaration of same-sex marriage? Echoing the Declaration of Independence, the New Jersey constitution provides: “All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing, and protecting property, and of pursuing and obtaining safety and happiness.” Based on this provision, the New Jersey Supreme Court rules (in Lewis v. Harris) that all the rights and benefits of marriage need to be made available to same-sex couples.  

1987—Culminating an unprecedented campaign of lies, distortions, and vilification, the Senate rejects, by a vote of 58 to 42, President Reagan’s nomination of Judge Robert H. Bork to fill the Supreme Court seat vacated by retiring Justice Lewis F. Powell Jr.

1992—Liberal judicial activists promote racial quotas and impede the death penalty, so why not use racial quotas to paralyze implementation of the death penalty? Justice Brennan had tried the trick in 1987 (in McCleskey v. Kemp), but, with only the support of Justices Marshall, Blackmun, and Stevens, had fallen short. The Supreme Court, in an opinion by Justice Powell, broadly rejected the claim that general statistical disparities in implementation of the death penalty can establish intentional discrimination in violation of the federal Equal Protection Clause. 

Undeterred, in Foster v. State Florida chief justice (and, later, Eleventh Circuit judge) Rosemary Barkett dissents from the majority’s determination that statistical evidence purporting to show that defendants who killed white victims in Bay County were more likely to get the death penalty than defendants who killed black victims failed to establish a constitutional violation. Barkett opines that statistical evidence of disparate impact in capital sentencing establishes a violation of the Equal Protection Clause of the Florida constitution. And there are no apparent limits to the statistical evidence that she regards as relevant: “‘Statistical’ evidence should be construed broadly to include not only historical analysis of the disposition of first-degree murder cases in a particular jurisdiction, but also other information that could suggest discrimination, such as the resources devoted to the prosecution of cases involving white victims as contrasted to those involving minority victims, and the general conduct of a state attorney’s office, including hiring practices and the use of racial epithets and jokes.”

Barkett’s approach would make the death penalty impossible. In every capital case, the defendant would be able to conduct an intrusive investigation of the general practices of the prosecutor’s office. There is also no reason why Barkett’s approach should be limited to death penalty cases, as her theory would apply equally to robbery, rape, and all other crimes. As Justice Powell put it in McCleskey, that approach, “taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”   

This coming Monday (Oct. 24), I’ll be at my not-so-alma mater Harvard Law School to discuss how and why the Supreme Court confirmation process has changed over the years and what that portends for the next vacancies. The lunchtime event is sponsored by the law school’s Federalist Society chapter. Event details here.

Last month, I called attention to a wild ruling by Ohio common pleas court judge Christian Jenkins that held that the Health Care Freedom Amendment adopted by Ohio voters in 2011 had the wholly unforeseen and undebated effect of creating a state constitutional right to abortion and that the Ohio heartbeat law violates that right. Jenkins entered a temporary restraining order barring state officers from enforcing the heartbeat law.

Last week, Jenkins predictably imposed a preliminary injunction to supersede his TRO. Jenkins repeated his holding that the Ohio constitution confers a constitutional right to abortion. He further found that “the diversity of views on the issue of a fetus’s moral status” somehow means that Ohio does not have a compelling interest in protecting potential [sic] life as early as six weeks” into pregnancy.

Jenkins seems not to recognize that Ohio legislators resolved the diversity of views by enacting the heartbeat law and, in so doing, discerned a compelling interest in protecting the actual (not merely potential) lives of unborn human beings. Through his deceptive wordplay, he uses the “diversity of views on the issue of a fetus’s moral status” to impose what is obviously his own view—that the unborn human being is not entitled to any significant legal protection.

1949—President Truman recess-appoints David L. Bazelon to the D.C. Circuit. With a lifetime appointment from Truman a few months later, Bazelon serves for 30 years in active status and an additional 14 years in senior status. 

On his death in 1993, a New York Times obituary praises Bazelon for “expanding the rights of criminal defendants” and for disregarding precedent: “Rather than follow precedent set in a simpler time, he questioned the status quo and sought to apply new findings in the social sciences and psychiatry to issues the court faced.” The obituary also states that Bazelon “believed the judiciary should reach beyond the bench and speak out on social issues,” but that he “was assailed by conservatives as being soft on crime.”

One testament to Bazelon’s craftsmanship: In 1978, in a unanimous opinion written by Justice Rehnquist (in Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council), the Supreme Court reverses decisions by Bazelon that would have overturned the Atomic Energy Commission’s grant of an operating license and a permit to nuclear power plants. Bazelon’s decisions “seriously misread or misapplied” basic principles of administrative law, the Court rules, and amounted to “judicial intervention run riot.”  

2015—Argentine judge Elena Liberatori rules that an orangutan named Sandra living at the Buenos Aires zoo is a non-human person entitled to assert her rights in court (or to have her rights asserted on her supposed behalf). A year later, an appellate court will reverse this ruling. 

1978—President Jimmy Carter signs into law Public Law 95-486, which creates 35 new federal appellate judgeships (as well as 117 new federal district judgeships)—a 36% increase in the number of federal appellate judgeships. Among other things, the law raises the number of Ninth Circuit judges from 13 to 23. 

With the aid of Senate Judiciary Committee chairman Teddy Kennedy, Carter will succeed in filling all those seats during his final two years in office. Carter appointees to new seats on the Ninth Circuit will include arch-activists Stephen Reinhardt, Harry Pregerson, Betty B. Fletcher, Warren J. Ferguson, and Mary M. Schroeder. Among the many judges Carter will appoint to new seats on other circuits are Abner Mikva and Patricia Wald (D.C. Circuit), Stephen Breyer (First Circuit), and Boyce F. Martin Jr. (Sixth Circuit). 

2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.  

Legal journalist Lincoln Caplan has a long piece in Harvard Magazine celebrating Justice Elena Kagan. For the most part, the piece intelligently presents an unabashedly liberal perspective—it sees things largely through Kagan’s eyes—and I have no interest in contesting that perspective here. But this passage on Dobbs sure seems to flirt—or perhaps jump right in bed with—anti-Catholic bigotry:

All the justices in the majority were raised Catholic. Their ruling permits laws making it a crime to perform or have an abortion, based on the theological belief that life begins at conception. That encroaches on the religious freedom of the many whose faith leads them to believe otherwise—say, that life begins at birth—while leaving the health of pregnant women of all faiths vulnerable, particularly those of color and with low incomes.[Emphasis added.]

A few comments:

1. Nothing in the Dobbs majority opinion invokes, or in any way depends on, a “theological belief that life begins at conception.” Nor does the opinion even invoke the scientific consensus that the life of a human being begins at conception. Rather, the “overwhelming consensus” that the opinion relies on is a historical legal consensus:

In this country during the 19th century, the vast majority of the States enacted statutes criminalizing abortion at all stages of pregnancy. By 1868, the year when the Fourteenth Amendment was ratified, three-quarters of the States, 28 out of 37, had enacted statutes making abortion a crime even if it was performed before quickening. Of the nine States that had not yet criminalized abortion at all stages, all but one did so by 1910.… By the end of the 1950s, according to the Roe Court’s own count, statutes in all but four States and the District of Columbia prohibited abortion “however and whenever performed, unless done to save or preserve the life of the mother.” [Citations omitted.]

From this “overwhelming consensus” comes the “inescapable conclusion … that a right to abortion is not deeply rooted in the Nation’s history and traditions.” I’m not going to attempt to summarize here the rest of the majority opinion. The essential point is that it is flatly wrong to assert that its holding is in any way “based on the theological belief that life begins at conception.”’

But perhaps I am misconstruing Caplan’s ill-crafted sentence. Perhaps he means that the Dobbs ruling “permits laws making it a crime to perform or have an abortion [even though those laws are] based on the theological belief that life begins at conception.” But that would just mean that he is making a different error. There is compelling scientific evidence that the life of a human being begins at conception. What possible reason is there to suppose that a legislator who votes to ban abortion from conception isn’t acting on that scientific understanding? Surely it cannot matter if the legislator also holds a “theological belief” that mirrors that scientific understanding.

2. So why would Caplan think it pertinent to state that “All the justices in the majority were raised Catholic”? Why does he not point out that Justice Sotomayor also was? Or that other justices supportive of Roe—William Brennan, Anthony Kennedy—also were? It sure seems that Caplan is peddling anti-Catholic bigotry.

3. Bans on abortion cannot plausibly be said to “encroach[] on the religious freedom” of someone who believes that the life of a human being “begins at birth.” If someone holds that unscientific, faith-based belief, it obviously does not follow that the person’s religious faith generally requires that she have an abortion.

I understand that in some faiths abortion might well be considered obligatory for women facing life-threatening circumstances. But there has never been an abortion law in this country that has not had a life-of-the-mother exception, and if such an exception were so narrowly drawn that it conflicted with a woman’s faith demands, the legal question would be whether she would be entitled to a broader exception, not whether the entire abortion law should be invalidated.

While I’m at it, I’ll note a couple of other flat-out errors that Caplan makes (without, of course, blessing everything else in his piece).

Caplan asserts that “no party in the case” (his emphasis) asked the Court to overturn Roe. But Mississippi dedicated the bulk of its merits brief to that very request. How could anyone who followed Dobbs not know this? (Perhaps Caplan is misremembering the dispute over the fact that Mississippi’s certiorari petition only very briefly asked the Court to overturn Roe.) From page one of Mississippi’s brief:

On a sound understanding of the Constitution, the answer to the question presented in this case is clear and the path to that answer is straight. Under the Constitution, may a State prohibit elective abortions before viability? Yes. Why? Because nothing in constitutional text, structure, history, or tradition supports a right to abortion. A prohibition on elective abortions is therefore constitutional if it satisfies the rational-basis review that applies to all laws…. Roe and Casey are thus at odds with the straightforward, constitutionally grounded answer to the question presented. So the question becomes whether this Court should overrule those decisions. It should. The stare decisis case for overruling Roe and Casey is overwhelming.

Caplan asserts: “Five of the six Republican-appointed justices—Roberts, Alito, Gorsuch, Kavanaugh, and Barrett—were nominated by presidents elected with less than a majority of the popular vote.” That’s not correct. President George W. Bush won re-election in 2004 with a majority of the popular vote, and he nominated Roberts and Alito in 2005. (It’s also curious that no one who makes this point ever seems to observe that Justice Ruth Bader Ginsburg and Justice Stephen Breyer were nominated by a president, Bill Clinton, who won only 43% of the popular vote.)

In Brandt v. Rutledge, the Eighth Circuit is now considering whether to reconsider en banc a panel decision upholding the lower court’s preliminary injunction of Arkansas’s SAFE Act, which would protect children from sterilizing gender-transition drugs and surgeries. In enjoining the law, the district court relied on claims by the American Academy of Pediatrics, the American Medical Association, the World Professional Association for Transgender Health, and other interest groups (collectively, “AAP”) that “a robust body of scientific evidence supports the efficacy of” these interventions for “young people.” AAP repeatedly made this claim, touting a “robust consensus” and a “robust body of empirical evidence.” This claim became the foundation of the district court’s analysis, which cited a single source — AAP’s brief — to come to the remarkable conclusion that “the only effective treatment for individuals at risk of or suffering from gender dysphoria is to provide” sterilizing interventions (emphasis added). This conclusion, in turn, became the primary “factual finding” that the Eighth Circuit panel relied on, echoing the district court’s statement (from AAP) that sterilizing transition interventions are “supported by medical evidence that has been subject to rigorous study.”

But AAP’s claim of robust evidence has always been false. How do we know? After Arkansas and its amici showed that nearly everyone — other than ideologically captured medical-interest groups in the U.S. — recognizes the paucity of reliable evidence about sterilizing interventions in minors, AAP quietly deleted every claim about a “robust body of empirical evidence” from the brief it later filed in the Eighth Circuit. Though the Family Research Council pointed out AAP’s about-face in court filings, the panel ignored it and AAP refused to explain it, instead retreating to meaningless and still incorrect claims about “a growing body of evidence that indicates the efficacy of” sterilizing children. AAP’s “growing body” is a handful of slipshod studies that failed to control for relevant variables or to reach statistically or clinically significant results (as explained here, here, and here, without response from AAP). Regardless, AAP has implicitly conceded that the district court’s AAP-derived conclusion — that a robust body of empirical studies proves that sterilizing interventions are the “only” treatment for gender dysphoria in children — is wrong.

So what does the science actually tell us about using sterilizing interventions on children to transition their gender? To the extent that the available evidence allows any conclusions, official medical authorities — not private interest groups with financial and ideological commitments — have concluded that “for adolescents with gender incongruence,” “the risks of puberty suppressing treatment with [blockers] and gender-affirming hormonal treatment currently outweigh the possible benefits” (Sweden). England’s National Health Service concluded that there is “limited evidence for the effectiveness and safety of gender-affirming hormones in children and adolescents” and the “long-term safety profile” is “largely unknown.” France’s Académie Nationale de Médecine likewise concluded that research “is still too rare” and “great medical caution must be taken.” Finland, Australia, and New Zealand agree. The World Professional Association for Transgender Health (WPATH), in its own new Standards of Care — which nonetheless approve chest and genital surgeries to transition children regardless of age — says that because “the number of studies” about adolescent treatment “is still low,” “a systematic review regarding outcomes of treatment in adolescents is not possible.”

The reason to wait for medical interventions — and the reason that the SAFE Act passes any level of constitutional scrutiny — is that the consequences of “gender-affirming care” for a minor are drastic. As evidence before the district court showed, children who take puberty blockers and then cross-sex hormones — the near-universal transitioning pathway — “are expected to become sterile.” As a result of the district court’s injunction, Arkansas children will be permanently and profoundly altered in their ability to engage in intimate relationships and prevented from ever having children of their own.

AAP waves all this away as solvable by consent. Putting aside the impossibility of asking an eleven-year-old girl in psychological pain to meaningfully consent to giving away her reproductive abilities, AAP would not tell the truth about medical knowledge in this case, claiming a nonexistent “robust body of scientific evidence.” Why should anyone expect its doctors — subject to AAP’s oversight and with “big money maker” interventions at stake — to tell a little girl and her family what the AAP will not even say in court? As one recent article in a scientific journal explained, “the implications of administering a treatment with irreversible, life-changing consequences based on evidence that has an official designation of ‘very low certainty’” are “rarely discussed with the patients,” much less the “risks to fertility, bone, and cardiovascular health.”

Given the building evidence of harms to children, combined with the lack of any long-term studies demonstrating the safety and effectiveness of these sterilizing interventions, Arkansas’s SAFE Act is necessary to protect children. And en banc review by the Eighth Circuit is necessary to prevent constitutional law from being outsourced to ideological medical groups peddling false claims. (Such groups once uniformly promoted eugenic sterilization, opioids, and smoking, among much else.) WPATH removed minimum-age guidelines for transition surgeries from its own standards via a technical “correction” on the ground that surgeons performing genital surgeries on children might otherwise be subject to malpractice lawsuits. Why bother with the difficult work of addressing underlying mental-health issues through psychosocial support — an approach that many countries mandate but AAP assures “is not recommended” — when the prospect of profitable genital surgeries on vulnerable children, without threat of lawsuits, awaits?

This is not evidence-based medicine. It is evidence-free, ideological medicine. And our children are the victims.

Note: Christopher Mills represents the Family Research Council as amicus curiae in Brandt v. Rutledge. FRC’s brief in support of the rehearing is here.

For most Americans, the title of this post would have been the big news in Pew Research Center’s report on its survey of Americans this past spring on the college admissions process. Instead, the reader has to scroll to the last graph to find the relevant data buried under the diversionary heading “Black, Hispanic, and Asian American adults more likely than White adults to say race or ethnicity, legacy, first-generation status should be factors in college” (emphasis added):

As this graph shows, 59% of blacks and 68% of Hispanics believe that race or ethnicity should not play a role in college admissions. Yes, those figures are somewhat lower than the 79% figure for whites, but the fact that substantial majorities of blacks and Hispanics oppose racial preferences would be big news to many people.

Not that it should be big news. In fact, a Pew Research Center article back in 2019 on the same survey question reported that “majorities across racial and ethnic groups agree that race should not be a factor in college admissions” and included a well-titled graph with numbers very similar to the 2022 survey—62% of blacks and 65% of Hispanics said that race or ethnicity should not be a factor.

In 2016, the Court in Fisher v. University of Texas ruled by a vote of 4-3 that the University of Texas’s race-conscious admissions program did not violate the Equal Protection Clause. A Gallup poll conducted in the immediate aftermath of that ruling showed that 65% of Americans—including 63% of blacks and 65% of Hispanics disapproved of the ruling. Further, 57% of blacks said that race or ethnicity should not be a factor at all in college admissions decisions, as did a strong plurality—47%—of Hispanics.

Gallup’s article on that poll also showed that Americans’ strong opposition to racial preferences in college admissions has “held steady” since Gallup first posed the question in 2003:

I’ve often heard defenders of racial preferences in college admissions invoke so-called legacy preferences—the preferences given children of alumni. Insofar as their point is that legacy preferences are also a departure from making admissions decisions based on measures of merit, I agree. But the legal objection to racial preferences isn’t that they depart from considerations of merit; it’s that they violate constitutional and statutory bans on race discrimination.

Some of those who invoke legacy preferences might instead be objecting to the racially disparate impact that legacy preferences have (because whites make up a larger percentage of, say, Harvard alumni than of the broader population). But absent a highly improbable showing that colleges use legacy preferences because of that disparate impact, that objection likewise fails to engage the legal arguments against racial preferences.

I’ve just run across a very different, and much more promising, argument about how legacy preferences bear on racial preferences. In an amicus brief in Students For Fair Admissions v. Harvard, Caltech professor Fiona Harrison (represented by law professor Alan Morrison) argues that the legacy preference, because of its disparate impact, “significantly undermines Harvard’s stated goals of seeking a class that is racially and socio-economically diverse.” Under the Equal Protection standard that Title VI has (wrongly) been held to incorporate, it’s difficult to take seriously that Harvard regards racial diversity as a compelling interest and can satisfy strict scrutiny in how it pursues that interest when its legacy preference “directly undermines Harvard’s stated [diversity] goals.”