Some favorite books of mine

 Richard Henry Dana -Two Years Before the Mast

Herman Melville - Moby Dick 

Robert Cover - Justice Accused

W.E.B. DuBois - Black Reconstruction

Eric Foner - Reconstruction - 1863-1877 - America's Unfinished Revolution; The Second Founding

James McPherson - Battle Cry of Freedom

Alfred Lansing - Endurance 

John Q. Barrett -That Man - An Insiders Portrait of Franklin D. Roosevelt 

Stephen Ambrose - Undaunted Courage

David McCullough - The Path Between the Seas

Ronald White - American Ulysses - A Life of Ulysses Grant 

Taylor Branch - Parting the Waters

' Crime-fraud exception compels John Eastman to turn over emails for Donald Trump re January 6| The Recorder

Concluding that Donald Trump and his lawyer and former law dean John Eastman “more likely than not” conspired to obstruct Congress. California Federal District Judge David Carter has in Eastman v. Thompson Carter concluded the crime-fraud exception applied to a draft memo for Trump’s lawyer Rudy Giuliani that otherwise would be protected by attorney-client privilege. - GWC

So Dave Carter!' Judge's Home Base Reacts to Jan. 6 Subpoenas Ruling on John Eastman, Donald Trump | The Recorder

Issued on the judge’s 78th birthday, the 44-page ruling is the first time a U.S. judge has considered possible crimes committed by a sitting president. It ensures the Jan. 6 Committee will get 101 of the 111 emails Trump’s lawyer John Eastman sent between Jan. 4-7, 2021, using his Chapman University account. Carter concluded the crime-fraud exception applied to a draft memo for Trump’s lawyer Rudy Giuliani that otherwise would be protected by attorney-client privilege, concluding Trump and Eastman “more likely than not” conspired to obstruct Congress. But it also goes beyond the emails and calls for accountability in the Jan. 6 attacks, with the judge writing: “If the country does not commit to investigating and pursuing accountability for those responsible, the court fears January 6 will repeat itself.”

Arbitration: Justices Limit Federal Court Review - Courthouse News

 Arbitration: Justices Limit Federal Court Review - Courthouse NewsAn The 8-1 decision construing the Federal Arbitration Act brought a rare win, if narrow,  to an employee in Badgerow v. Walters. Since arbitration agreements arise from contracts - which are matters of state law, the fact that the substance of a case involved a federal question does not itself create federal jurisdiction over an action to confirm, vacate, or modify an arbitration award, the Supreme Court held - 8-1. - GWC

KELSEY REICHMANN / March 31, 2022

The Supreme Court is seen in Washington on Sept. 3, 2021. (AP Photo/J. Scott Applewhite)

WASHINGTON (CN) — In an 8-1 opinion released on Thursday morning, the Supreme Court ruled in favor of an employee in a gender-based discrimination claim and settled a jurisdictional issue in an arbitration dispute. 

The ruling reverses a lower court decision and finds that in some circumstances, federal courts do not have jurisdiction to confirm, vacate or modify an arbitral award. Justice Elena Kagan wrote the opinion of the court and Justice Stephen Breyer was the sole dissenter. 

Denise Badgerow was fired from a Louisiana financial service company after raising concerns about workplace harassment and violations of securities laws to Ameritrade. The three principals who ran the firm — including Greg Walters — were advisors for Ameriprise Financial Services and terminated Badgerow a day after they were contacted by an Ameriprise compliance officer about the alleged workplace violations. 

Badgerow filed an arbitration proceeding with a panel of the Financial Industry Regulatory Authority. The panel sided with Walters and dismissed the case with prejudice. Badgerow then tried to move her case to state court to vacate the arbitration decision but her former employer argued the case should stay in federal court. A district court sided with Walters and denied Badgerow’s remand motion, and the Fifth Circuit affirmed. Badgerow then appealed to the Supreme Court, which agreed to add the case to its docket. 

The case concerns a jurisdictional dispute over a provision in the Federal Arbitration Act and asked the court to consider if federal courts have jurisdiction to assess arbitration awards under two sections of the law where their only basis is the dispute involved a federal law question. 

Examining an approach developed under the court’s 2009 ruling in Vaden v. Discover Bank, Kagan’s opinion delves into whether the “look-through” approach — which allows a federal court to exercise jurisdiction over an FAA application when the underlying substantive dispute would have fallen within the court’s jurisdiction — can establish jurisdiction when an application seeks to confirm, vacate or modify an arbitration award. 

The majority found that the look-through approach doesn’t apply to requests to confirm or vacate an arbitration award. 

Kagan said the issue before the justices required them to decide where a federal court should look to determine whether a suit brought before it has an independent jurisdictional basis. 

“An obvious place is the face of the application itself,” the Obama appointee wrote. 

But, Kagan said, the district court had to look beyond the text to find a basis for jurisdiction. 

“In other words, the court had to look through the Section 9 and 10 applications to the underlying substantive dispute, although that dispute was not before it,” she wrote. “Could the court do so?” 

Kagan explains that Vaden approved the look-through approach for petitions that fell under Section 4 of the FAA but petitions under Sections 9 and 10 contain different language. 

“But Sections 9 and 10, in addressing applications to confirm or vacate an arbitral award, contain none of the statutory language on which Vaden relied,” Kagan wrote. 

Alex Jones fines mount for refusal to appear for deposition

https://www.courthousenews.com/alex-jones-to-rack-up-escalating-fines-until-he-appears-for-deposition/

‘Scary for the Legal Profession’: Georgetown Upends Traditional Law School Lessons in New Woke Curriculum

‘Scary for the Legal Profession’: Georgetown Upends Traditional Law School Lessons in New Woke Curriculum

Alito and Thomas eye bigger carveout for churches to discriminate in hiring | Courthouse News Service

Alito and Thomas eye bigger carveout for churches to discriminate in hiring | Courthouse News Service

State nondiscrimination laws could be on the chopping block, should the right case come to the court. 

KELSEY REICHMANN / March 21, 2022

Three Supreme Court justices tried to force the Navy to deploy unvaccinated SEALs.

Three Supreme Court justices tried to force the Navy to deploy unvaccinated SEALs.

By Mark Joseph Stern

On Friday afternoon, the Supreme Court froze an injunction that would have required the Navy to deploy SEALs who refuse to get vaccinated against COVID-19. The decision suggests that SCOTUS has little patience for lower courts’ efforts to seize authority from the armed forces by inserting themselves into the chain of command. One such recent ruling barred the Navy from reassigning the commanding officer of a guided-missile destroyer, an anti-vaxxer who repeatedly defied lawful orders and recklessly exposed dozens to the virus. High-ranking military officials testified that decisions like these undermined military readiness and threatened national security.

It might seem obvious that federal courts cannot order the deployment of individual troops on specific missions—over their superiors’ strenuous objections—by judicial fiat. Yet Friday’s decision was not unanimous. Justice Samuel Alito, joined by Justice Neil Gorsuch, penned a 10-page opinion upbraiding his colleagues for “rubberstamping” the Navy’s alleged infringement on religious liberty. Justice Clarence Thomas also dissented without an opinion. All three justices supported the lower courts’ unprecedented attempt to exercise powers that are constitutionally assigned to the commander-in-chief.

On Monday, I spoke with Eugene R. Fidell to discuss the judicial battle over the limits of religious freedom for anti-vaxxers in uniform. Fidell is one of the nation’s preeminent experts in military justice and an attorney who frequently defends members of the armed forces. He co-founded the National Institute of Military Justice and currently serves as an adjunct professor at New York University School of Law. Our conversation has been edited for length and clarity.

Mark Joseph Stern: What do you make of federal judges ordering the deployment of unvaccinated service members?

KEEP READING

Federal judge finds Trump likely committed felonies with Jan. 6 plan | Courthouse News Service

Federal judge finds Trump likely committed felonies with Jan. 6 plan | Courthouse News Service

By Hillel Aron

LOS ANGELES (CN) — A law professor with whom then-President Donald Trump concocted a plan to overturn the will of the people following the 2020 presidential election must turn over most of his emailed communications with Trump and the president’s advisers to the Select Committee investigating the Jan. 6 insurrection at the Capitol, a federal judge ruled Monday.

But he didn’t stop there. U.S. District Judge David Carter, a Bill Clinton appointee, said the reason Chapman University professor John Eastman must hand over 101 documents — emails and attachments — to the committee is because he and Trump likely broke the law in trying to stop Congress from counting electoral votes on Jan. 6, 2021.

“The illegality of the plan was obvious. Our nation was founded on the peaceful transition of power, epitomized by George Washington laying down his sword to make way for democratic elections,” Carter wrote in a 44-page order. “Ignoring this history, President Trump vigorously campaigned for the vice president to single-handedly determine the results of the 2020 election. As Vice President Pence stated, ‘no vice president in American history has ever asserted such authority.’ Every American — and certainly the president of the United States — knows that in a democracy, leaders are elected, not installed.

“With a plan this ‘BOLD,’ President Trump knowingly tried to subvert this fundamental principle,” Carter wrote, using the word Eastman used for Trump’s plan in a memo he drafted on Jan. 3.

In a written statement, Eastman’s lawyer, Charles Burnham wrote: “As an attorney, Dr. John Eastman has the responsibility to protect the confidences of his clients to the fullest extent of the law,” adding, “He intends to comply with the court’s order.”

House General Counsel Douglas Letter declined to comment, referring the request to House Speaker Nancy Pelosi’s office which did not respond by press time.

Eastman, a longtime Chapman University professor and former dean of its law school, had sought to block his former employer from turning over his emails sent and received from his school account, which had been subpoenaed by the House of Representatives’ Select Committee to Investigate the January 6 Attack on the United States Capitol. Eastman argued he was acting as Trump’s lawyer, and that the emails fell under attorney-client privilege.

Judge Carter ordered Eastman to go through each of the emails and explain why each one should be protected, and to start with emails sent and received between Jan. 4 and 7, 2021. Eastman requested that 111 emails and attachments from that period be kept private.

Douglas Letter, the Select Committee’s lawyer, argued the emails were should not be covered under attorney-client privilege, in part because Eastman’s advice was primarily campaign advice and not related to any particular litigation. He also argued that some of the emails fell under the “crime-fraud exception” which exempts certain communication from attorney-client privilege if the client is in the midst of committing a crime or a fraud.

Eric Segall: How to Fix our Broken Confirmation Process - Dorf on Law

Dorf on Law: How to Fix our Broken Confirmation Process

By Eric Segall

If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation.

But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to the idea that judges "interpret don't make the law." And of course there were far more speeches by Senators on both sides of the aisle than questions. As always, it was one big charade.

The most serious problem with all of the confirmation hearings since Judge Bork's is that they lack any substance. If you do not believe me, here is Justice Kagan writing in 1995 in the University of Chicago Law Review:

The Senate's consideration of a nominee, and particularly the Senate's confirmation hearings, ought to focus on substantive issues; the Senate ought to view the hearings as an opportunity to gain knowledge and promote public understanding of what the nominee believes the Court should do and how she would affect its conduct. Like other kinds of legislative fact-finding, this inquiry serves both to educate members of the Senate and public and to enhance their ability to make reasoned choices. Open exploration of the nominee's substantive views, that is, enables senators and their constitutuents to engage in a focused discussion of constitutional values, to ascertain the values held by the nominee, and to evaluate whether the nominee possesses the values that the Supreme Court most urgently requires. These are the issues of greatest consequence surrounding any Supreme Court nomination (not the objective qualifications or personal morality of the nominee); and the process used in the Senate to serve the intertwined aims of education and evaluation ought to reflect what most greatly matters.

Of course, Justice Kagan largely ignored this critique during her own confirmation hearing and walked back the most important points she made in her discussion of the process in her scholarship.

Court allows Department of Defense to reassign unvaccinated Navy SEALs

Court allows Department of Defense to reassign unvaccinated Navy SEALs

In Lloyd Austin, III, Secretary of Defense v. U.S. Navy Seals 1-25  the majority, granted an application for a partial stay of the decision below.  The District Judge had effectively grounded twenty five members of the famous commando unit because the Navy refused to deploy them unvaccinated for covid.

This defiance by soldiers would ordinarily lead to discharge or discipline.  But ordinarily was before Samuel Alito and Neil Gorsuch sat on the high court.

The dissenting commandos, who train for the most hazardous of missions, asserted scruples about taking the covid vaccine.  The claims seem implausible given the other risks these commandos have volunteered to take.  But the Supreme Court has made clear elsewhere that there is no claim of religious scruple so tenuous that it will not be taken at face value.  Thus the Little Sisters of the Poor, themselves subject to vows of chastity, asserted that conscience prevented them from completing a form requesting exemption from the requirement that their health insurance cover contraceptives.  The commandos asserted similar scruples.

But  Justices Alito and Gorsuch found that "the Navy treated service members who applied for medical exemptions more favorably than those who sought religious exemptions".  Conditioning military service on following orders seems to be the essence of the enlistment oath. But the new thrust of the Supreme court majority is that if any other comparable group is treated less harshly, then a free exercise of religion claims will be recognized.  - GWC

The Broken Constitution - Noah Feldman review by George Thomas -The Bulwark -

It is difficult to hear even the most sophisticated of political leaders speak of the Constitution of 1787 with reverence; to witness Presidents and Justices speak admiringly of the slave owners who drafted the Constitution in a closed room in Philadelphia in 1787.  The compromise preserved slavery with no intention of abolition.  It not only failed to erode or abolish slavery, it greatly expanded the slave territory by occupying land and driving out its aboriginal inhabitants, or conquering the territory of another settler nation - Mexico.  The Constitution's dreadful compromise produced history's then bloodiest war.  It divides us today.

In the 1863 Gettysburg Address - delivered at the site of the war's bloodiest battle - Abraham Lincoln reframed the vision of the country as grounded in the Declaration of Independence's opening lines - that "all men are created .equal".  The Emancipation Proclamation followed, then victory, then the 13th. 14th, and 15th Amendments.  Freedom, equal protection, and the right to vote were promised to the former chattel slaves.  But Reconstruction was largely defeated and a century of apartheid ensued. 

But as we know the civil war victors promise was not kept - until the Second Reconstruction of 1954-1964, the era of Brown v. Board of Education and the great Civil Rights Act of 1964.  It's promise too has fallen short. But we are lucky to have historians like Eric Foner whose 2019 book The Second Founding demonstrates how fundamental was the post-war Reconstruction.

Now we have Noah Feldman's new book, insightfully reviewed in The Bulwark by Claremont McKenna political scientist George Thomas. - GWC

Update: Prof. Martin Flaherty reminds me that Sean Wilentz slammed Feldman as brilliant but wrong in a book review in the Times in November 2021: https://www.nytimes.com/2021/11/02/books/review/noah-feldman-the-broken-constitution.html?smid=url-share

 

The Constitution at War With Itself - The Bulwark

By George Thomas 

The Broken Constitution

Lincoln, Slavery, and the Refounding of America
by Noah Feldman
Farrar, Strauss and Giroux, 368 pp., $30

In the Gettysburg Address, Abraham Lincoln cast the nation as “conceived in liberty” and “dedicated to the proposition that all men are created equal.” In doing so, he drew on the Declaration of Independence, dating the founding of the nation to 1776, and not to the Constitution of 1787. The relationship between the principles put forward in the Declaration and the Constitution’s compromise with slavery has long vexed America. We have too often treated the compromise with slavery as a minor detail; in much of our public discussion about the founding, the “peculiar institution” is seen as deeply problematic but we gloss over the fact that it took a civil war, costing hundreds of thousands of American lives, to wash away America’s “original sin.” And we also gloss over the fact that it took the Civil War Amendments to recast the Constitution, making it “worthy of the saving.” Americans tend to treat the Constitution written in 1787 and set in motion in 1789 as the same Constitution we currently live under in 2022, as if slavery, civil war, and a second founding were just a few rough patches in an otherwise placid journey.

Noah Feldman’s The Broken Constitution eloquently and powerfully forces us to face these too often neglected questions. As Feldman tells it, Lincoln’s Gettysburg Address foreshadows the creation of a second Constitution—a better Constitution that places the moral principles of the Declaration at its heart. But to fully apprehend Lincoln’s refounding, we need to understand that Lincoln broke the original Constitution; yet we so live in the world remade by Lincoln that we have trouble glimpsing this fundamental rupture in our constitutional past, which cannot be neatly captured by singular dates like 1619 and 1776.

***If Feldman positions the second Constitution as moral and the first as all compromise, downplaying some of important continuities between them, he is exquisitely right to force us to recognize the failures of the original Constitution. Americans—particularly those Americans who think patriotism depends on a belief in an infallible founding and a perfect Constitution—too easily gloss over how “complicated, contradictory, and fraught it was for Lincoln and the nation to overcome [the old] Constitution and remake it.” Beyond forcing us to confront the discontinuities of our constitutional history, taking in the tragic as well as the triumphant, Feldman’s The Broken Constitution is a timely reminder that the task of maintaining constitutional self-government is ongoing—the work of present generations building on the past.

The Supreme Court’s inexplicable blow to the Voting Rights Act in Wisconsin.//SLATE

The Supreme Court’s inexplicable blow to the Voting Rights Act in Wisconsin //SLATE

By Mark Joseph Stern

On Wednesday, the Supreme Court issued an astonishing decision throwing out Wisconsin’s new legislative districts as a violation of the equal protection clause. The majority accused a Republican justice on the Wisconsin Supreme Court of greenlighting a “racial gerrymander” by creating one more majority-Black district in the state Assembly. Wednesday’s unsigned decision, issued through the shadow docket, hands Wisconsin Republicans an unexpected victory in their quest to reduce Black representation in the legislature. It also alters the law of redistricting in fundamental yet cryptic ways that might, to a cynic, seem designed to disadvantage Democrats in every single case.

Wisconsin Legislature v. Wisconsin Elections Commission is an unusual case. It arose because the state’s Democratic governor and GOP-controlled legislature could not agree on new maps following the 2020 census. The Wisconsin Supreme Court stepped in to referee the dispute, allowing parties to submit draft maps for its consideration—including Gov. Tony Evers and legislative leaders. A majority declared that it would abide by a “least change” rule, selecting the map that made the fewest changes to the current plan. Applying this standard, the court adopted Evers’ map in March. Notably, Justice Brian Hagedorn, a conservative Republican, authored the majority opinion. His decision largely preserved the current Republican gerrymander, but also increased the number of majority-Black Assembly districts in Milwaukee from six to seven.

Wisconsin GOP gets high court to junk electoral maps | Courthouse News Service

The United States Supreme Court found a way again to dilute the Black vote.  Last month it stayed an Alabama federal three judge District Court's ruling approving a second majority Black district in the state's seven Member congressional delegation.  Six weeks before the start of mail voting and three and a half months before election day in a Congressional primary was too close to the election, said Justice Kavanaugh and Alito in a concurring opinion.  The majority issued no opinion at all. 

Today the court - using its emergency (shadow) docket - converted the Wisconsin GOP's application for a stay into an expedited grant of a petition for certiorari and summarily reversed the order of a Republican state Supreme Court judge who - faced with two maps - chose the Democrats' as making the smallest change in existing Wisconsin legislative districts.

But one more Black seat was one too much for the six reactionary judges on the high court. 

The 14th Amendment - which the rightist judges found to be violated - empowers Congress to enforce it by `appropriate legislation'.  But the Court has developed a several tier test of what is appropriate.  Strict scrutiny, intermediate, and rational basis review.  It has settled on the hierarchy of which  Justice David Souter famously wrote in his dissenting opinion in Alameda Books v. City of Los Angeles (2002), “Strict scrutiny leaves few survivors.” ' - GWC

Wisconsin GOP gets high court to junk electoral maps | Courthouse News Service

By Kelsey Reichmann March 23, 2022 

WASHINGTON (CN) — Republican lawmakers succeeded Wednesday at discarding new electoral maps for Wisconsin that created an extra majority-Black district.

The lawmakers had sought an emergency injunction against the maps, having failed to secure relief from the Wisconsin Supreme Court. Instead, the U.S. Supreme Court treated the application as a petition for certiorari, and it summarily reversed the lower court’s order without the benefit of oral arguments.

Justice Sonia Sotomayor, joined by Justice Elena Kagan, dissented. It is otherwise unclear who signed on to the majority’s unsigned opinion.

Like other states greeting new population numbers after the 2020 census, the Wisconsin Legislature adopted new maps to reapportion its state assembly and senate. When the maps were vetoed, however, by Wisconsin Governor Tony Evers, the state Supreme Court stepped in and had parties propose new maps based on the state constitution, the U.S. Constitution and the Voting Rights Act. The Wisconsin Supreme Court adopted Evers' proposal, which included the creation of one more majority-Black district in Milwaukee. Wisconsin Republicans then turned to the high court. 

Lawmakers claimed the new maps made the state home to a “21st-century racial gerrymander,” and that the state Supreme Court adopted them based on a rewriting of the Voting Rights Act. They also claim the governor’s map violates the Equal Protection Clause.

The court’s majority agreed, leaning on its precedent in Cooper v. Harris. Using Cooper, the court said if a state is going to use Section 2 of the Voting Rights Act to justify race-based districting, it must show strong evidence for why that would be required. 

“The Wisconsin Supreme Court concluded that the Governor’s intentional addition of a seventh majority-black district triggered the Equal Protection Clause and that Cooper’s strict-scrutiny test must accordingly be satisfied,” the majority wrote. “Accepting those conclusions, we hold that the court erred in its efforts to apply Cooper’s understanding of what the Equal Protection Clause requires.” 

Justices in the majority said Evers’ additional majority-Black district did not hold up to strict scrutiny.  

Mark Pomerantz’s Resignation Letter: The Full Text - The New York Times

Mark Pomerantz has resigned his position as a lawyer investigating Donald Trump's conduct in New York.

Newly elected Manhattan District Attorney Alvin Bragg is not willing to take the risk of prosecuting the former President. - GWC

Mark Podmerantz’s Resignation Letter: The Full Text - The New York Times

Judge blocks Biden policy narrowing focus of deportations | Courthouse News Service

Judge blocks Biden policy narrowing focus of deportations   | Courthouse News Service

DAYTON, Ohio (CN) — The states of Arizona, Montana and Ohio won a preliminary injunction on Tuesday enjoining a Biden administration immigration policy that narrows the Department of Homeland Security's deportation focus to immigrants deemed to be dangerous.

The guidance, initially instituted on an interim basis by President Joe Biden in January 2021, instructed DHS officials and officers of Immigration and Customs Enforcement, or ICE, to "focus their civil immigration enforcement efforts on noncitizens who present a threat to national or border security or public safety."

Texas immediately challenged the guidance in federal court and eventually won an injunction to prevent its enforcement, although that injunction was stayed by a ruling from a panel of appeals court judges.

While its temporary guidelines were being litigated, DHS made several changes and eventually passed permanent guidance for prioritized removal in September 2021.

It was this permanent rule that prompted the lawsuit by Arizona, Montana and Ohio, which was filed in Dayton federal court and assigned to U.S. District Judge Michael Newman, [a member of the Federalist Society and  an appointee of Donald Trump].

The rule instructs immigration officials to conduct extensive analysis of an illegal immigrant's criminal history, mental and physical health, length of time in the country and various other factors before making a removal determination.

The states claimed this type of discretionary "balancing test" exceeded the scope of authority granted to DHS and ICE, and causes extensive harm by allowing more dangerous illegal immigrants within their borders.

DHS argued the states' financial harm is speculative at best and that its guidance ensures the most dangerous criminals will be removed from the country.

Newman sided with the states Tuesday, citing evidence of increased costs for Arizona that stemmed directly from a decrease in removal rates that required the state to either maintain custody of the immigrants or monitor them upon their release from prison.

In his analysis of the guidance against the backdrop of federal immigration law, Newman emphasized the federal government looks to inject flexibility into statutory language where there is none.

"Noncitizens with final removal orders," he wrote, "especially those meeting the criminal alien definition, must be detained during the removal period. Congress left no flexibility for DHS to release some noncitizens during the removal period."

The judge called the guidance "an end-run around" immigration law that requires immigrants who commit aggravated felonies to be detained and removed from the country within 90 days.

"The permanent guidance allows noncitizens to be released on removal-period and post-removal bond based on factors Congress did not intend DHS to consider and in contrast to DHS's own regulations," he said.

Pickwickian Originalism ~ Adrian Vermeule

Pickwickan Originalism Ius et Iustitia

 

By Adrian Vermeule and Conor Casey

We offer here a very few thoughts — essentially, only one thought — about a recent argument for a kind of generic originalism. The argument was published by Joel Alicea, a law professor at the Catholic University of America, in a draft paper titled “The Moral Authority of Original Meaning.”[1] Given that the paper claims to ground its argument in the classical legal tradition; that it has been heavily promoted by the quasi-official organs of legal originalism, such as the National Review and the Legal Theory Blog; and that the paper is, if nothing else, strikingly ambitious, a brief response seems warranted.

Alicea correctly notes the critical role that legitimate political authority plays in securing the common good. In the United States, Alicea argues, the people are sovereign and the ultimate legitimate political authority. He therefore claims that “some form”[2] of originalism is required to preserve the people’s legitimate authority by ensuring their posited commands are respected and not displaced by fiat, because respecting this authority is essential to achieving the common good.[3] Looking beyond the United States, Alicea suggests that some form of originalism may be required to preserve the people’s legitimate authority in any system where they are the sovereign authority — wherever there is a “regime operating under a constitution (written or unwritten) that is designed to serve as a higher form of positive law than acts of ordinary politics.”[4]

Alicea says his purpose is merely to show that, given the classical legal tradition’s high respect for law posited by legitimate political authority, “some form of originalism is required.”[5] He does not argue that this version, or that version, or some other version of originalism (there are now probably a baker’s dozen) is affirmatively required by the classical legal tradition,[6] its understanding of the right relationship between background principles of legality (ius) and posited law (lex), or the importance of respecting posited law.[7]The key question then becomes: what exactly does Alicea mean by this generic, lowest-common-denominator version of originalism? The answer is thin gruel.

When Alicea states that “some form” of originalism is required, what he seems to mean, and ends up more or less saying,[8] is merely this: first, all officials are compelled to faithfully adhere to and interpret the meaning of X, Y or Z provisions posited and fixed by a legitimate political authority at a given historical point in time – whether 1789, 1868, or 1992 – unless and until those provisions are lawfully repealed or replaced; and second, interpreters of the law (such as judges) ought not to displace the posited law by reference to all-things-considered moral decision making.

Unfortunately, Alicea has here tried to relabel as “originalism” what is really the common legal heritage of almost all of mankind, yesterday and today. (This effort to appropriate all constitutional law under a label evolved by American legal conservatives in the 1970s is best seen as an extreme version of American conceptual and temporal parochialism, an issue we return to shortly). No developed legal system anywhere and at any time, to our knowledge anyway, fails to respect these two thin constraints. They are banalities, truisms, universally understood and accepted by all remotely sensible legal systems — the vast bulk of which would laughingly, or with some confusion, reject the label “originalism.” The classical legal tradition does not, of course, deny either of them; in particular, it does not at all allow judges to engage in all-things-considered moralizing at the point of application, as we have explained. The classical judge is constrained not only by appropriate respect for posited law, but also by legal role morality (itself a crucial aspect of political morality), by second-order rules of jurisdiction and deference, and by the objective existence of the background principles of ius.

KEEP READING

Alito and Thomas eye bigger carveout for churches to discriminate in hiring | Courthouse News Service

Alito and Thomas eye bigger carveout for churches to discriminate in hiring | Courthouse News Service

WASHINGTON (CN) — A church accused of discriminating against a bisexual lawyer lost its bid for a Supreme Court hearing but still caught the attention of two conservative justices Monday.

“To force religious organizations to hire messengers and other personnel who do not share their religious views would undermine not only the autonomy of many religious organizations but also their continued viability,” Justice Samuel Alito wrote in In a statement about the case this morning, with Justice Clarence Thomas concurring. “If States could compel religious organizations to hire employees who fundamentally disagree with them, many religious non-profits would be extinguished from participation in public life — perhaps by those who disagree with their theological views most vigorously.” 

The case concerns a lawyer, Matthew Woods, who applied for an open staff attorney position at a legal clinic operated by the Union Gospel Mission in Seattle. Though Woods had been volunteering with the clinic since his first year of law school, continuing such work for three years, he learned that his sexual orientation might be a barrier to him getting the job.

As a volunteer, Woods had signed a statement of faith that did not reference sexual orientation, but the employee handbook prohibits “homosexual behavior.” He asked the clinic's director — who had previously encouraged him to apply — if being bisexual would be a problem, and the director said he would not be able to apply for the position now. Woods applied anyway and his application was rejected. 

KEEP READING

D.C. Fed Soc Judge Nixes Teen's right to vaccine w/o parental consent

In Booth v. Bowser Trevor N. McFadden, a long time Federalist Society member and Trump-era federal District Judge has enjoined a D.C. law that says a minor can get a vaccine without parental consent.

The law was passed before the covid pandemic “so that the District can move towards a high enough immunization rate to achieve herd immunity—or 95% immunity—from diseases such as measles.” But relying on the emerging doctrine that no burdens on religious belief - no matter how contrary to the public interest - will be tolerated the judge turns to last year's "Fulton [v. Philadelphia] , 141 S. Ct. at 1877 saying “A law also lacks general applicability if it prohibits religious conduct while permitting secular conduct that undermines the government’s asserted interests in a similar way.” In that case the Court found Philadelphia must allow a conscience exemption in the Court majority's emerging, if not well articulated, doctrine favoring religious conscience claims of all kinds against public health measures.

McFadden finds that the D.C. law targets parents with religious scruples about vaccination, and that it preempts the National Vaccine Injury Compensation Act  which provide that Vaccine Information Sheet must be given to any "legal representative".  By affirming the autonomy of a minor, in McFadden's view, the D.C. law conflicts with federal law and must yield:

In late 2020, the D.C. Council approved a law allowing children as young as eleven to get vaccinated without parental consent or knowledge. Parents who object to childhood vaccinations filed complaints and sought preliminary injunctions in two separate cases, but they bring nearly identical claims. They argue that federal law preempts the District’s law and that it violates their constitutional and statutory rights. The District opposes the imposition of preliminary injunctions and moves to dismiss. It argues that the parents lack standing, that they have not justified preliminary injunctive relief, and that they failed to state a claim. The Court holds that all the parents have standing for their preemption claims and have shown a likelihood of success on the merits for those claims.