1984—When is an express signed waiver of Miranda rights not a waiver? When you try to conceal your identity by signing a false name. So rules federal district judge H. Lee Sarokin (in an unpublished opinion in United States v. Rodriguez). Rodriguez had been arrested on theft-related charges and was advised of his Miranda rights and informed that signing the waiver form would waive those rights. He signed the form, but, intent on concealing his identity, signed someone else’s name. Sarokin rules that “it does not strain logic to find the use of a name other than one’s own to be wholly inconsistent with a voluntary waiver of rights: defendant may well have believed that by using a false name he was not committing himself to anything.” In a remarkable display … Read entire article »

On Monday, President Obama made a legal claim that managed to unite writers for The Federalist Society, the Wall Street Journal, and the New York Times. Eileen O’Connor, former assistant attorney general for DOJ’s tax division, summarized the case on the Federalist Society’s blog: On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term. Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate.  Within the Departments are agencies that carry out the various responsibilities of the Department.  They, too, are headed by Senate-confirmed … Read entire article »

2006—When left-wing activist and divorce specialist Marna Tucker is somehow selected as the D.C. Circuit member of the ABA committee that rates federal judicial nominees, Senate Democrats engineer the occasion for Tucker to conduct a (supposedly) supplemental review of White House lawyer Brett M. Kavanaugh, who had previously received an overall “well qualified” rating. Tucker instead launches a scorched-earth investigation that produces a jumble of biased and incoherent allegations, and the ABA committee reduces Kavanaugh’s overall rating to “qualified.” Amidst the ensuing Democratic smears, Kavanaugh ends up being confirmed to the D.C. Circuit by a vote of 57-36. (See here for a fuller account.)    Read more CompleteThis Day in Liberal Judicial Activism—May 8 … Read entire article »

A couple of pieces worth reading: 1. In this New York Post op-ed, Scott Walter of the Capital Research Center explores “a flip side to the scandal” over the “IRS’s targeting of conservatives trying to start tax-exempt groups”: “the agency possibly going easy on tax-exemption applications by groups doing the administration’s political work.” From his opening paragraphs: This is linked to another breaking scandal, Health and Human Services Secretary Kathleen Sebelius’ apparent fund-raising for two pet nonprofits. The Washington Post broke the news last week that Sebelius had asked health industry firms “to make large financial donations” to groups helping the administration sell ObamaCare. The Post specifically mentioned Enroll America, a nonprofit run by Anne Filipic, who previously was White House deputy director for public engagement. Its managing director, Chris Wyant, led Obama’s … Read entire article »

2005—Federal district judge Joseph F. Bataillon rules that the Nebraska constitutional provision defining marriage as “between a man and a woman” violates First Amendment associational rights, the Equal Protection Clause, and the Bill of Attainder Clause. One year later, a unanimous Eighth Circuit panel reverses all of these rulings. 2013—Happy Mother’s Day! No thanks to Ruth Bader Ginsburg, who in 1974 co-authored a report proposing that Congress abolish Mother’s Day and Father’s Day and replace them with an androgynous Parents’ Day. Observing Parents’ Day would, she explained, be “more consistent with a policy of minimizing traditional sex-based differences in parental roles.” In that same report, the oh-so-“moderate” Ginsburg stated her strong sympathy for the proposition that there is a constitutional right to prostitution and a constitutional right to bigamy; criticized the Boy … Read entire article »

That is the question that Kermit Gosnell forces on our attention.  Two years ago I wrote about the Gosnell case here, at NRO, when he was indicted.  Today at Public Discourse I review what we have learned from the case as it was prosecuted to its successful conclusion, with three murder convictions and 21 late-term abortion convictions yesterday in Philadelphia.  A sample: Gosnell, whose clinic was shut down by the Philadelphia authorities who charged him with murder, is the ne plus ultra of the abortion trade. Not because of the filth, the squalor, the jars of amputated keepsake baby feet, the employment of unlicensed incompetents, the promiscuous use of narcotics on unwitting patients, or the poisonous racism of a physician who preyed upon women and babies of his own race—although all … Read entire article »

Back in 2011 when I was the first to highlight the extraordinary position against religious liberty that the Obama administration adopted in the Hosanna-Tabor case, I elicited a tizzy on the Left when I raised the possibility that the administration’s hostility to the ministerial exception to federal antidiscrimination laws was part and parcel of a broader ideological agenda that would have gay causes trump religious liberty. The particular case of Hosanna-Tabor had nothing to do with issues of homosexuality, the critics observed, so they claimed not to see the connection. Another particular issue that gays and lesbians presumably wouldn’t have much direct interest in is whether the Hahn family that owns and operates Conestoga Wood Specialties Corporation and that has religious objections to providing insurance coverage for abortifacients has a religious-liberty … Read entire article »

Last March, my JCN colleague Carrie Severino wrote an excellent USA Today op-ed entitled “Gay marriage victory might backfire,” making the case that our country’s experience with Roe v. Wade should make gay marriage advocates wary of asking the U.S. Supreme Court to decide the matter once and for all.  As she explained:   The case of Roe v. Wade is instructive, because it mirrors the current state of the same-sex marriage movement in many ways. By 1973 when the Roe decision was handed down, the political stars appeared to be aligned in favor of abortion advocates. Abortion enjoyed widespread support in academia and among opinion elites as well as in public opinion polls, and was making headway in state law. The year before the Supreme Court decision was handed down saw nearly 600,000 legal abortions performed. Despite these trends, taking abortion … Read entire article »

In one of my first essays for NRO back in 2005 (“Are You an Originalist?”), I selected the Constitution’s “natural born Citizen” criterion for eligibility to be president—a provision that then seemed at the time to be beyond the distorting effects of political bias—to illustrate that everyone intuitively recognizes the common-sense principle at the heart of the interpretive methodology of originalism: namely, that the meaning of a constitutional provision is to be determined in accordance with the meaning that it bore at the time that it was adopted. The public debate in 2008 over whether John McCain, having been born in 1936 in the Panama Canal Zone to parents who were American citizens, was a “natural born Citizen” ratified my point, as virtually all commentators purported to undertake an originalist … Read entire article »

My organization, the Judicial Education Project, has filed a Supreme Court amicae curiae brief supporting the petition for certiorari in McCullen v. Coakley. The case involves a Massachusetts statute that establishes a 35-foot fixed buffer zone around abortion clinics. The viewpoint-discriminatory statute violates the First Amendment by prohibiting communications within the buffer zone, while exempting abortion clinic employees and agents. JEP filed the brief on behalf of Molly White, Esther Ripplinger, Marlynda Augelli, and Dr. Alveda King, who all regret their decisions to have an abortion and were misled by abortion-clinic staff members about abortion’s consequences. Read the whole brief. Read more CompleteAmicae Curiae Brief in <i>McCullen v. Coakley</i> … Read entire article »

Information released yesterday by the Census Bureau about voter turnout in 2012 further undermines the constitutionality of the distinctions made by Section 5 of the Voting Rights Act between the jurisdictions it covers and those it does not. This discussion here in the Atlantic Wire concludes that “those states [now covered by Section 5] didn’t see lower-than-average black turnout. In fact, averaging both turnout and deviance from the norm in those Voting Rights Act (VRA) states, we see that they outperformed non-VRA ones.” Earlier, they note, “Black turnout was highest in Wisconsin, Mississippi, and North Carolina. The lowest percentages — of eligible black voters, not of voters overall — were in Arizona, Washington, and Arkansas.” Chief Justice Roberts had noted Mississippi’s high black turnout rate at the oral argument in Shelby County v. Holder, where the constitutionality … Read entire article »

Within the space of three months, the top leadership of the Boy Scouts of America floated two dramatically different revisions of the BSA’s policy against youth members and adult leaders who are “open or avowed homosexuals.” In late January, the BSA announced that it was considering a policy change under which “there would no longer be any national policy regarding sexual orientation” and the matter would instead be left to each of the various organizations that sponsor troops “to determine how to address this issue.” In late April, the BSA proposed its resolution that would allow openly gay youth members while supposedly retaining the prohibition on adult leaders who are “open or avowed homosexuals.” Different as these two proposals are, they share one fundamental feature: While purporting to allow (in the … Read entire article »

1993—In Baehr v. Lewin, the Hawaii Supreme Court rules that traditional marriage is presumptively unconstitutional and orders the state to demonstrate a “compelling state interest” for denying marriage licenses to same-sex couples. In 1998, the people of Hawaii respond by amending the state constitution to confirm that the legislature has the power to reserve marriage to opposite-sex couples, and the legislature amends the constitution to define marriage as being between one man and one woman. 2003—In the fifth of seven unsuccessful cloture votes on President Bush’s 2001 nomination of the superbly qualified Miguel Estrada to the D.C. Circuit, only two of the 49 Senate Democrats vote for cloture. Read more CompleteThis Day in Liberal Judicial Activism—May 5 … Read entire article »

In cases across the country, various individuals and the family-owned corporations they operate are invoking their religious-liberty rights not to comply with the Obama administration’s HHS mandate on contraceptives (including abortifacients). A leading argument that the Obama administration is making is that “for-profit, secular companies,” unlike “non-profit, religious organizations,” are categorically incapable of engaging in an exercise of religion within the meaning of the federal Religious Freedom Restoration Act and thus have no rights under RFRA. And the Obama administration uses the adjectives “for-profit” and “secular” redundantly: It maintains that every “for-profit” corporation is ipso facto “secular.” (I’m drawing here from DOJ’s Tenth Circuit brief in the Hobby Lobby case, pp. 11-12.) The Obama administration’s argument can’t withstand scrutiny. For starters, RFRA itself makes no distinction between “for-profit, secular companies” and … Read entire article »

Although my name hasn’t yet been added to the online list of speakers, I am very pleased to pass along that I will be taking part in National Review’s summer cruise of the fjords of Norway (the ancestral land of a This Day in Liberal Judicial Activism superstar, former chief justice Earl Warren). The cruise runs from August 1 to 8. If the cruise interests you and the timing works for you, I’d definitely encourage you to sign up. From my three previous NR cruises, I can attest that the many excellent programs and parties organized by National Review promote a real camaraderie among the NR speakers and cruisers, and there are many other activities available on the ship and at the various ports of call. If you’ve never been on a … Read entire article »

1992—The Ninth Circuit, in an opinion written by Judge Betty B. Fletcher and joined by Judge Stephen Reinhardt, rules that the provision of a government-paid sign-language interpreter to a profoundly deaf student who has chosen to attend a “sectarian” (read: Catholic) high school violates the Establishment Clause. One year later, the Supreme Court reverses the Ninth Circuit (in Zobrest v. Catalina Foothills School District) by a 5-4 vote. Chief Justice Rehnquist’s majority opinion states: “[Federal law] creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign language interpreter there in order to facilitate his education.” Justices … Read entire article »

2008—Even by Justice John Paul Stevens’s unusual standards, his opinion concurring in the judgment in Baze v. Rees is remarkably strange. Stevens rambles on for some nine pages explaining the idiosyncratic bases—at bottom, “my own experience”—for his newfound view, after more than three decades on the Court, that the death penalty itself violates the Eighth Amendment. But Stevens then concludes that he will abide by the Court’s precedents that the death penalty is constitutional—and that he agrees that petitioners failed to prove that Kentucky’s lethal-injection protocol violates the Eighth Amendment. In a brief opinion responding to Stevens’s folly, Justice Scalia comments on Stevens’s ultimate reliance on his “own experience”: “Purer expression cannot be found of the principle of rule by judicial fiat.” Read more CompleteThis Day in Liberal Judicial Activism—April 16 … Read entire article »

As I spell out in Part II of my law-review essay on how the HHS mandate violates the federal Religious Freedom Restoration Act, it ought to be a simple matter for anyone to recognize that the HHS mandate substantially burdens an employer’s refusal, for religious reasons, to provide health insurance that covers contraceptives and abortifacients. Simply put, the HHS mandate makes such refusal illegal and subjects the refusing employer to massive fines. Under clear Supreme Court precedent, this plainly amounts to a substantial burden. I’m reliably informed that, as of now, the plaintiff business owners and businesses that have challenged the HHS mandate have won preliminary injunctive relief in eighteen cases and have been denied relief in only six cases. Astoundingly, most or all of the six outlier courts that have … Read entire article »

1906—William J. Brennan, Jr., is born in Newark, New Jersey. In his 34 years on the Court, Brennan will deploy his impressive backroom political skills in the service of liberal judicial activism. It is doubtful that anyone has done more to misshape the Supreme Court’s understanding of the Constitution. 1996—More Newark: The New York Times reports that an 11-member council of the Third Circuit (which covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands) unanimously denied Judge H. Lee Sarokin’s request to move his chambers from Newark to San Diego. A court administrator, in a comment that could apply generally to Judge Sarokin’s thinking, labels his request “extremely unusual.” Six weeks later, This Day all-star Sarokin announces that he will retire at the end of July—less than two years after his appointment to … Read entire article »

President Obama’s attempt to circumvent the Senate by unilaterally appointing Ohio politician Richard Cordray to the Consumer Financial Protection Bureau may have been premised on his expectation that he would get away with it. If so, he seems to have miscalculated, because the other two branches of government are providing him with a Sesame Street demonstration of the concept of “checks and balances.” Senate Republicans wrote in February that they would “continue to oppose the consideration of any nominee, regardless of party affiliation, to be the CFPB director until key structural changes are made to ensure accountability and transparency at the Consumer Financial Protection Bureau.” (Their criticism of the CFPB’s unaccountable structure is echoed in a lawsuit brought by eleven states and a small Texas bank and the Competitive Enterprise Institute challenging the … Read entire article »