Speaking of ‘Preposterous’

by Ed Whelan

Washington Post columnist Ruth Marcus isn’t happy with what she labels the Trump administration’s “move to rescind bathroom access protections for transgender students.” But she can’t coherently explain why:

1. Marcus says it’s “both wrong and offensive” for White House spokesman Sean Spicer to call school bathroom policies “a states’ rights issue.” But the Trump administration’s position is the same position that the Obama administration had for its first 7-1/2 years—and that all previous administrations going back to the enactment of Title IX in 1972 also had.

That position is that Title IX doesn’t dictate that schools must allow boys who identify as girls to use the girls’ restrooms, showers, and locker rooms, to play on girls’ sports teams, and to room with girls on overnight school trips. And vice versa, of course, for girls who identify as boys.

In other words, “a states’ rights issue” is just shorthand for the proposition that federal law doesn’t speak to the matter.

2. Marcus says that the “relevant question” is “Are transgender students protected under Title IX?”

But that’s actually a terribly worded question. The relevant question is actually twofold: (A) Does Title IX’s bar on discrimination “on the basis of sex” include discrimination on the basis of gender identity? (B) If so, does assigning bathrooms, showers, locker rooms, sports teams, and housing on the basis of biological sex discriminate on the basis of gender identity?

Let’s take these one at a time.

(A) Marcus says that Spicer is “undoubtedly correct” that “the authors of Title IX didn’t have transgender students in mind.” But, she observes soundly (quoting Justice Scalia), “it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”

But if Marcus offers an actual argument for why the original public meaning of “on the basis of sex” in Title IX should include “on the basis of gender identity,” I missed it. I thought that the Left has been telling us for decades that there’s this thing called gender that is a concept entirely distinct from sex. But we’re now supposed to believe that sex includes gender?

(B) As I have explained, even if we assume arguendo that the answer to question A is yes, reserving women’s bathrooms, locker rooms, and shower facilities for biological females (and men’s bathrooms, locker rooms, and shower facilities for biological males) does not in fact involve any discrimination on the basis of gender identity:

A person discriminates on the basis of a trait when he takes that trait into account in making a decision (at least when there is no compelling or inherent justification for doing so), and he doesn’t discriminate when he disregards the trait. Similarly, a policy discriminates on the basis of a trait when it makes that trait relevant to how a person is treated, and it doesn’t discriminate when it treats the trait as irrelevant. So, for example, a person discriminates on the basis of race when he factors a job applicant’s race into his hiring decision, and he doesn’t discriminate on the basis of race when he disregards the applicant’s race in making his hiring decision. Likewise, a person discriminates on the basis of gender identity when he factors a job applicant’s gender identity into his hiring decision — when, for example, he refuses to hire a woman because she says she identifies as male — and he doesn’t discriminate on the basis of gender identity when he disregards her gender identity in deciding whether to hire her.

But in the context of single-sex bathrooms, locker rooms, and showers, the concept of discrimination on the basis of gender identity plays out very differently from what the transgender ideologues contend. In this context, a school complies with the (hypothetical) norm of nondiscrimination on the basis of gender identity when it disregards a student’s gender identity and instead assigns the student to the facilities that correspond with his biological sex.

In other words, it is the advocates of transgender access to bathrooms and showers who, under the guise of their nondiscrimination rhetoric, are in fact seeking to discriminate on the basis of — in favor of — gender identity. That’s exactly what a policy of making gender identity override biological sex entails: It makes gender identity determine which restrooms and showers a person is allowed to use, just as a policy of race-segregated restrooms and showers makes race determine which facilities a person is allowed to use.

3. Marcus asserts that the “majority of lower courts that have considered the issue have agreed that discriminating against a transgender individual is sex discrimination under federal civil rights laws and the equal protection clause.” I believe that Marcus is confusing two distinct (but admittedly easy to confuse) legal questions.

Under Price Waterhouse v. Hopkins (1989), Title VII’s ban on discrimination on the basis of sex covers discrimination for failing to conform to sex stereotypes. One question is whether individuals who are transgender can, like other persons, sue under this theory (whether under Title VII or other legal guaranatees). I think that this is what Marcus is referring to.

A separate question—and the one relevant here (under point 2(A))—is whether federal law bars discrimination on the basis of gender identity.

4. As supposed proof that Gavin Grimm “is a boy,” Marcus observes that “he has an amended birth certificate saying so.” But the transgender activists have rejected the notion that the sex stated on a birth certificate is authoritative, so they can’t selectively invoke it when it suits their purposes. (The opposing position treats biological sex as dispositive and simply regards an original birth certificate as presumptive evidence of biological sex.)

5. Marcus wrongly claims that Grimm is being forced to use a separate single-stall restroom. As Grimm’s brief acknowledges (p. 28), he is allowed to use the girls’ restroom (but considers that option unacceptable).

Supreme Court Clerk’s Office as Pronoun Police?—Part 2

by Ed Whelan

With Part 1 as background, let’s now examine whether the Supreme Court’s Office of the Clerk was correct to admonish two amici in the pending case of Gloucester County School Board v. G.G. for using a caption that identified the respondent as “G.G., by her next friend and mother, Deirdre Grimm” (emphasis added).

Here’s the body of the letter from the clerk’s office:

It has come to the attention of this office that the cover of your amicus brief in this case identifies the respondent as “G.G., by her next friend and mother, Deirdre Grimm.” In fact, the caption for the case in this Court, as in the lower courts, identifies the respondent as “G.G., by his Next Friend and Mother, Deirdre Grimm.” (Emphasis added.) Under Rule 34, your cover is to reflect the caption of the case. Please ensure careful compliance with this requirement in this and other cases in the future.

Some observations and criticisms:

1. The heart of the clerk’s letter is this statement: “Under Rule 34, your cover is to reflect the caption of the case.”

But Rule 34.1(c) of the Court’s Rules actually says only that “Every document shall bear on its cover … the caption of the case as appropriate in this Court.” (Emphasis added.)

What does “the caption of the case as appropriate in this Court” mean? What renders a caption “appropriate” or inappropriate? What written guidance does the clerk’s office provide, and what practice does it follow? (I have made this inquiry of the Court’s public information office.)

2. The clerk’s office evidently understands Supreme Court Rule 34.1(c) to mean that there is some sort of official caption for every case in the Court. How would such an official caption be established? By whatever caption the petitioner uses in its certiorari petition?

Are we really supposed to imagine that if Gloucester County had used a caption in its petition that identified the respondent as “G.G., by her next friend and mother, Deirdre Grimm,” G.G. would have been obligated to use that caption on her brief—and that the clerk’s office would have admonished G.G. for failure to do so?

(The clerk’s letter seems to think it significant that the “lower courts” used “by his next friend” in their captions. But the highly respected Supreme Court Practice (10th edition)—informally known as Stern & Gressman—states that counsel submitting the certiorari petition “is not bound by the caption used in the court below” and “is free to clarify or improve it so as to portray accurately the adversary position of the contending parties.”)

3. But perhaps it’s enough that the Court’s docket page sets forth a caption for the case that includes “By His Next Friend”? Perhaps, in the absence of a petition for a change, all parties and amici are obligated to use that caption? If so, why doesn’t Rule 34.1(c) say so?

Further, if that is the position of the clerk’s office, I’ll note that it doesn’t consistently enforce that position. In the one other case I’ve checked, Burwell v. Hobby Lobby, the certiorari petition identified the lead petitioner as “Kathleen Sebelius, Secretary of Health and Human Services,” and that is how the Court identified the lead petitioner through the oral argument in the case (and until Sylvia Matthews replaced Sebelius). But many of the countless amici (a few examples here, here, and here) dropped the “Secretary of Health and Human Services” from the caption. Indeed, the Ethics and Public Policy Center (the think tank I head) did so as well, and I can personally attest that we did not receive a letter of admonishment from the clerk’s office.

4. So why the selective enforcement against amici in the Gloucester County case?

The real-world, but not legally sufficient, answer is that Slate’s Mark Joseph Stern complained to the clerk’s office about the amici’s captions. But why did the clerk’s office side with his complaints?

It’s telling that Stern himself, in his celebration of the clerk’s letters, can’t provide a good answer. He claims that the Court “has very specific rules governing these briefs,” but he quotes only the vague language of Rule 34.

5. Stern, I’ll note, claims that G.G. (aka Gavin Grimm) “has legally and medically transitioned from female to male.” Let’s take a quick look at these claims.

According to her merits brief, Grimm received an ID card from the state DMV in 2015 that identifies her as male. Further, she has recently had the designation of sex on her Virginia birth certificate changed from “female” to “male.”

It’s a matter of state law whether these legal changes are binding on the Gloucester County School Board. And if they are, wouldn’t the case now be moot, with the decision below to be vacated?

As for Stern’s claim that Grimm has “medically transitioned from female to male”: Set aside how that is even biologically possible. (Are we supposed to believe that her chromosomes have been altered?) All that apparently underlies the claim is that Grimm, in addition to “hormone therapy,” had “chest reconstruction surgery” nearly a year ago. I’d rather not get into the details, so let’s just say that the usual defining signs of a female’s sex remain unchanged.

Supreme Court Clerk’s Office as Pronoun Police?—Part 1

by Ed Whelan

On Friday, the Supreme Court’s Office of the Clerk sent letters to two amici in the pending case of Gloucester County School Board v. G.G. that admonished them for using a caption that identified the respondent as “G.G., by her next friend and mother, Deirdre Grimm” (emphasis added). I would like to explore whether the clerk’s office was correct to do so.

I’ll offer some background in this post and then turn in the next post to a closer examination of the position adopted by the clerk’s office.

In Gloucester County School Board v. G.G., a student who is biologically female but who identifies as male claims that she has a federal legal right to use the boys’ restroom at her high school. As I explained in my National Review article on the underlying Fourth Circuit ruling, the “foundational premise” of G.G.’s claim “is that the objective fact of biological sex is some sort of arbitrary fiction ‘assigned at birth’ and that the subjective conception of gender identity is the genuine reality that demands recognition and respect.” Or, as one of the architects of the Obama administration’s transgender agenda “sternly” declared:

Here are the facts: Transgender men [i.e., women who identify as men] are men — they live, work and study as men. Transgender women [i.e., men who identify as women] are women — they live, work and study as women. [Emphasis added.]

This transgender ideology has triggered the great pronoun wars, in which lots of folks who don’t know much about grammar somehow insist that proper grammar requires that pronouns comport with a person’s declared gender identity rather than his sex. And so we get absurdities like this (from a New Republic article): “She has also tried to castrate herself by tying off her testicles.”

Just as proponents of G.G.’s legal claim insist on using masculine pronouns for her, many opponents of that claim understandably decline to do so. The Gloucester County School Board pursues that objective in the body of its merits brief by studiously avoiding any use of third-person singular pronouns to refer to G.G. (Seven justices of the Supreme Court took this same avoidance approach in a case involving a transgender prisoner.)

One catch in this case, though, is that because G.G. is a minor, she hasn’t had the authority to sue on her own but instead has done so through her mother. Consistent with her view of things, G.G. styled the caption in her complaint “G.G., by his next friend and mother, Deirdre Grimm …” (emphasis added), and the caption of the Fourth Circuit’s ruling bears that same phrasing. And in its certiorari petition and merits brief, the Gloucester County School Board followed the conventional (though, as we shall see, apparently not mandatory) practice of identifying the parties in its caption in the same terms that the ruling below used in its caption.

So anyone filing an amicus brief in support of the Gloucester County School Board faced a set of interrelated questions: What caption should the amicus brief bear? Do Supreme Court rules dictate all the particulars of the caption? And if not, should the amicus nonetheless adopt a usage (“G.G., by his next friend”) that reflects a factual understanding that the amicus believes to be both profoundly false and antithetical to the legal position that it is advancing? 

Re: Police Officer Dead from Liberal Judicial Activism?

by Ed Whelan

Sam Bieler takes me to task for supposedly getting “[e]very single point … wrong” in my post last Thursday about the death of Whittier police officer Keith Boyer. He offers an extensive and thorough criticism, and he may well be right on many key points.

For what it’s worth, I amended my post, within an hour after I first put it up, to note that “state prison officials are contesting (or at least attenuating) the causal connection between AB 109 and Officer Boyer’s death” and to emphasize that my assessment was “predicated on the [newspaper] article’s understanding that there is a traceable connection between Brown v. Plata and Officer Boyer’s death.”

Bieler faults me for providing that update “in the most tentative manner possible.” He may have a fair point. Had I known of the information that I added in my update, I would never have done the post in the first place. Having done it, I suppose that I could simply have deleted, or struck through, the post. But in my haste (I was rushing off to the airport), I thought that the update was adequate.

Seeing that Bieler makes serious points and not having the time to explore the matter further, I am now going to strike-through my previous post (and link to this post to explain why).

(I have tried to follow a practice of scrupulously correcting my errors and of not making points that I can’t responsibly support. I wish that others would follow this same practice.)

This Day in Liberal Judicial Activism—February 27

by Ed Whelan

1998—In Brause v. Bureau of Vital Statistics, Anchorage trial judge Peter A. Michalski rules that Alaska’s statutory definition of marriage as between “one man and one woman” violates the state constitution unless Alaska can show a “compelling state interest” in support of its definition. In November 1998, Alaska voters approve, by a 68% to 32% margin, a state constitutional amendment defining marriage as between a man and a woman. 

This Day in Liberal Judicial Activism—February 25

by Ed Whelan

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

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

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

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

This day in liberal judicial activism—February 24

by Ed Whelan

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

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

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

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

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

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

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

Police Officer Dead from Liberal Judicial Activism?

by Ed Whelan

[I am retracting this post, for the reasons stated here.]

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

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

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

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

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

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

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

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

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

This Day in Liberal Judicial Activism—February 23

by Ed Whelan

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

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

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

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

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

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

by Ed Whelan

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

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

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

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

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

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

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

North Carolina Governor’s Supreme Court Hijinx

by Ed Whelan

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

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

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

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

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

by Ed Whelan

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

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

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

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

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

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

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

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

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

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

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

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

This Day in Liberal Judicial Activism—February 22

by Ed Whelan

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

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

This Day in Liberal Judicial Activism—February 21

by Ed Whelan

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

This Day in Liberal Judicial Activism—February 20

by Ed Whelan

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

This Day in Liberal Judicial Activism—February 18

by Ed Whelan

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

Twitter, Facebook, and More

by Ed Whelan

Just a reminder: If you’re interested, my Twitter handle is @EdWhelanEPPC, and my Facebook page is www.facebook.com/EdWhelanEPPC.

You’re also welcome to join my e-mail distribution list for selected posts of mine from Bench Memos and The Corner as well as my occasional essays on NRO or elsewhere. Just sign up in the “subscribe” box on the top right half of my EPPC bio page. Please note that your e-mail address will not be visible to other folks on the list.  Also, it should be a simple matter for you to remove yourself from the list any time you want.

This Day in Liberal Judicial Activism—February 17

by Ed Whelan

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

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

Re: Erwin Chemerinsky Is Beyond Parody

by Ed Whelan

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

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

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