Supreme Court Strikes Down CA Law Compelling Pro-Abortion Speech from Pro-Lifers

Today, the Supreme Court decided National Institute of Family and Life Associates (NIFLA) v. Becerra.  Justice Thomas wrote for the five-member majority concerning the two pro-abortion notices required of pro-life pregnancy center by the California law at issue (the FACT Act) (citations omitted):

The licensed notice is a content-based regulation of speech. By compelling individuals to speak a particular message, such notices “alte[r] the content of [their] speech.” . . . Although the licensed notice is content based, the Ninth Circuit did not apply strict scrutiny because it concluded that the notice regulates “professional speech.” Some Courts of Appeals have recognized “professional speech” as a separate category of speech that is subject to different rules. . . . But this Court has not recognized “professional speech” as a separate category of speech. Speech is not unprotected merely because it is uttered by “professionals.” . . . 

The dangers associated with content-based regulations of speech are also present in the context of professional speech. As with other kinds of speech, regulating the content of professionals’ speech “pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information.” . . . “[T]he best test of truth is the power of the thought to get itself accepted in the competition of the market,” and the people lose when the government is the one deciding which ideas should prevail. . . . 

In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even intermediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it. 

If California’s goal is to educate low-income women about the services it provides, then the licensed notice is “wildly under inclusive.” . . . Yet “[p]recision . . . must be the touchstone” when it comes to regulations of speech, which “so closely touc[h] our most precious freedoms.” . . . 

Turning to the other notice requirement: 

We need not decide what type of state interest is sufficient to sustain a disclosure requirement like the unlicensed notice. California has not demonstrated any justification for the unlicensed notice that is more than “purely hypothetical.” . . . 

Even if California had presented a nonhypothetical justification for the unlicensed notice, the FACT Act unduly burdens protected speech. The unlicensed notice imposes a government-scripted, speaker-based disclosure requirement that is wholly disconnected from California’s informational interest. . . . And it covers a curiously narrow subset of speakers. . . . This Court’s precedents are deeply skeptical of laws that “distinguis[h] among different speakers, allowing speech by some but not others.” Speaker-based laws run the risk that “the State has left unburdened those speakers whose messages are in accord with its own views.” 

The majority did not reach the plaintiffs' viewpoint discrimination claim (see footnote 2 on page 6).  Justice Kennedy, joined by Chief Justice Roberts and Justices Alito and Gorsuch, agreed that the Court was correct not to reach the viewpoint discrimination question but concurred to note that the "apparent viewpoint discrimination here is a matter of serious constitutional concern":  

It does appear that viewpoint discrimination is inherent in the design and structure of this Act. This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. . . . This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And the history of the Act’s passage and its underinclusive application suggest a real possibility that these individuals were targeted because of their beliefs. . . . 

Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties. 

While liberals will use any means to attempt to force people to support their policy agenda, the First Amendment stands against government efforts to force people to speak contrary to their personal views just as it stands against restricting people from speaking.  Today the Supreme Court once again relied on the First Amendment to vindicate the rights of the people against government oppression. 

The Supreme Court also upheld President Trump's so-called "travel ban" today in Trump v. Hawaii.  

The Court's last decision day for this term is tomorrow.  The decision in Janus v. AFSCME (concerning compelled union dues for government employees) is expected, and if any justices are retiring, it will likely be announced tomorrow.  Follow the RNLA on Twitter for news tomorrow morning.

Supreme Court Upholds TX Congressional District Lines for All Except One District

Today, the Supreme Court issued a decision in Abbott v. Perez, a racial gerrymandering challenge out of Texas.  The Court held that the lower court had used an improper intent analysis to invalidate congressional and state house district maps, that the lower court had improperly applied the “effects” test of Section 2 of the Voting Rights Act to invalidate three districts, and that the fourth challenged district was an impermissible racial gerrymander because the state did not prove narrow tailoring in its use of race.

Justice Alito wrote for the five-justice majority, noting that district map challengers bear the burden of showing discriminatory intent (citations omitted):

We now hold that the three-judge court committed a fundamental legal error. It was the challengers’ burden to show that the 2013 Legislature acted with discriminatory intent when it enacted plans that the court itself had produced. The 2013 Legislature was not obligated to show that it had “cured” the unlawful intent that the court attributed to the 2011 Legislature. Thus, the essential pillar of the three-judge court’s reasoning was critically flawed. . . . 

The court refused to accept this conclusion, but its reasons for doing so cannot stand up. As an initial matter, the court thought that the two districts would have to be redrawn based on its finding regarding the intent of the 2013 Legislature, and it therefore deferred a final decision on the §2 issue and advised the plaintiffs to consider at the remedial phase of the case whether they preferred to have two districts that might not perform or just one safe district. The court’s decision cannot be sustained on this ground, since its finding of discriminatory intent is erroneous. 

The only other reason provided by the court was the observation that [Mexican-American Legal Caucus] “failed to show” that two majority-Latino districts in Nueces County would not perform. This observation twisted the burden of proof beyond recognition. It suggested that a plaintiff might succeed on its §2 claim because its expert failed to show that the necessary factual basis for the claim could not be established. Courts cannot find §2 effects violations on the basis of uncertainty. In any event, if even the District Court remains unsure how to draw these districts to comply with §2 (after six years of litigation, almost a dozen trials, and numerous opinions), the Legislature surely had the “ ‘broad discretion’ ” to comply as it reasonably saw fit in 2013.

With regard to the invalidated district (citations omitted):

By contrast, where we have accepted a State’s “good reasons” for using race in drawing district lines, the State made a strong showing of a pre-enactment analysis with justifiable conclusions. In Bethune-Hill, the State established that the primary map drawer “discussed the district with incumbents from other majority-minority districts[,]. . . considered turnout rates, the results of the recent contested primary and general elections,” and the district’s large prison population.  The State established that it had performed a “functional analysis,” and acted to achieve an “informed bipartisan consensus.” Texas’s showing here is not equivalent.

Perhaps Texas could have made a stronger showing, but it is the State’s burden to prove narrow tailoring, and it did not do so on the record before us. We hold that HD90 is an impermissible racial gerrymander. On remand, the District Court will have to consider what if any remedy is appropriate at this time. 

Also worth noting, the Court found that though the lower court did not label its order as an injunction, it functioned as an injunction and the lower court could not avoid review under 28 U.S.C. § 1253 by labeling the order something other than an injunction.

Justice Thomas has been alone in saying that Section 2 of the Voting Rights Act cannot justify using race in redistricting and that therefore requiring legislatures to form majority-minority districts by considering race is impermissible.  But today, Justice Gorsuch joined his concurrence in Abbott reiterating that stance, which may prove very important in future racial gerrymandering cases at the Supreme Court.

The Court also vacated and remanded Rucho v. Common Cause, a partisan gerrymandering challenge out of North Carolina that many liberals are hoping will meet the standing requirements of Gill v. Whitford, back to the district court for further proceedings in light of Gill.

While it may seem that little was decided today, the Court's reiteration of the appropriate burden of proof in redistricting cases is vital to courts consistently deciding redistricting cases according to actual legal principles.

Supreme Court Strikes Blow to Unaccountable Bureaucracy in Lucia v. SEC

This morning, the Supreme Court issued a decision in Lucia v. Securities and Exchange Commission, holding that the SEC's administrative law judges are "officers of the United States" subject to the Appointments Clause of the Constitution.  (We covered this topic and case in a breakout panel at our National Policy Conference in April.)  Justice Kagan wrote for the Court (citations omitted):

The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of department can do so.  And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer employees—part of the broad swath of “lesser functionaries” in the Government’s workforce. For if that is true, the Appointments Clause cares not a whit about who named them. . . . 

For all the reasons we have given, and all those Freytag gave before, the Commission’s ALJs are “Officers of the United States,” subject to the Appointments Clause.

This decision will help SEC ALJs be more accountable, as they will need to be appointed by a politically accountable person instead of just agency staff.  Justices Thomas and Gorsuch concurred to analyze the original public meaning of "officer" (citations omitted):

The Appointments Clause provides the exclusive process for appointing “Officers of the United States.” While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of “inferior Officers” by “the President alone,” “the Courts of Law,” or “the Heads of Departments.”  

This alternative process for appointing inferior officers strikes a balance between efficiency and accountability. Given the sheer number of inferior officers, it would be too burdensome to require each of them to run the gauntlet of Senate confirmation. But, by specifying only a limited number of actors who can appoint inferior officers without Senate confirmation, the Appointments Clause maintains clear lines of accountability—encouraging good appointments and giving the public someone to blame for bad ones. 

The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how important or significant the duty.  “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of official. . . . The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse).  Early congressional practice reflected this understanding. With exceptions not relevant here, Congress required all federal officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. 

Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceedings. As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for performing them.

Also worth noting is Justice Gorsuch's concurrence in today's South Dakota v. Wayfair decision:

My agreement with the Court’s discussion of the history of our dormant commerce clause jurisprudence, however, should not be mistaken for agreement with all aspects of the doctrine. The Commerce Clause is found in Article I and authorizes Congress to regulate interstate commerce. Meanwhile our dormant commerce cases suggest Article III courts may invalidate state laws that offend no congressional statute. Whether and how much of this can be squared with the text of the Commerce Clause, justified by stare decisis, or defended as misbranded products of federalism or antidiscrimination imperatives flowing from Article IV’s Privileges and Immunities Clause are questions for another day.

Justice Gorsuch consistently compares court decisions and doctrines to the Constitution, with an eye to the appropriate role of the courts, to determine whether they are correct.  Justices Thomas and Gorsuch are constantly pointing the Supreme Court to the text of the Constitution, its original meaning, and the proper role of the courts in our system of federalism and the separation of powers.

Supreme Court Stays Out of Partisan Gerrymandering Cases - For Now

In a victory - at least for now - for courts staying out of partisan gerrymandering disputes, the Supreme Court today decided two of the three redistricting cases pending before it.

In Gill v. Whitford, a challenge to Wisconsin's congressional district map, the Court unanimously dismissed the case for lack of standing (citations omitted):

Certain of the plaintiffs before us alleged that they had such a personal stake in this case, but never followed up with the requisite proof. The District Court and this Court therefore lack the power to resolve their claims. We vacate the judgment and remand the case for further proceedings, in the course of which those plaintiffs may attempt to demonstrate standing in accord with the analysis in this opinion. . . . 

Regarding standing, the court held that the plaintiffs had a “cognizable equal protection right against stateimposed barriers on [their] ability to vote effectively for the party of [their] choice.” It concluded that Act 43 “prevent[ed] Wisconsin Democrats from being able to translate their votes into seats as effectively as Wisconsin Republicans,” and that “Wisconsin Democrats, therefore, have suffered a personal injury to their Equal Protection rights.” The court turned away the defendants’ argument that the plaintiffs’ injury was not sufficiently particularized by finding that “[t]he harm that the plaintiffs have experienced . . . is one shared by Democratic voters in the State of Wisconsin. The dilution of their votes is both personal and acute.” . . . 

In cases where a plaintiff fails to demonstrate Article III standing, we usually direct the dismissal of the plaintiff ’s claims. This is not the usual case. It concerns an unsettled kind of claim this Court has not agreed upon, the contours and justiciability of which are unresolved. Under the circumstances, and in light of the plaintiffs’ allegations that Donohue, Johnson, Mitchell, and Wallace live in districts where Democrats like them have been packed or cracked, we decline to direct dismissal.  

We therefore remand the case to the District Court so that the plaintiffs may have an opportunity to prove concrete and particularized injuries using evidence—unlike the bulk of the evidence presented thus far—that would tend to demonstrate a burden on their individual votes. We express no view on the merits of the plaintiffs’ case. We caution, however, that “standing is not dispensed in gross”: A plaintiff ’s remedy must be tailored to redress the plaintiff ’s particular injury. 

While this may seem like the Court side-stepped the issues in the case, the standing decision was integral to the court's deciding in favor of the plaintiffs below.  By reversing the court's questionable conclusions on standing being shown through statewide partisan voting results, the Court today made it more difficult for future claimants to bring claims under such novel legal theories by properly placing the evidentiary burden on map challengers to show concrete and particularized injury.  (It is also worth noting that the length of Justice Roberts' opinion for the Court demonstrates how complicated standing doctrine and the law in general are in the area of redistricting.)  This is clear in the liberal justices' concurrence.

Justice Kagan, joined by Justices Ginsburg, Breyer, and Sotomayor, lamented that the plaintiffs did not argue the case appropriately to let the Court decide questions of proper district lines on political grounds, which liberals are desperate to do (citations omitted):

Partisan gerrymandering, as this Court has recognized, is “incompatible with democratic principles.” More effectively every day, that practice enables politicians to entrench themselves in power against the people’s will. And only the courts can do anything to remedy the problem, because gerrymanders benefit those who control the political branches. None of those facts gives judges any excuse to disregard Article III’s demands. The Court is right to say they were not met here. But partisan gerrymandering injures enough individuals and organizations in enough concrete ways to ensure that standing requirements, properly applied, will not often or long prevent courts from reaching the merits of cases like this one. Or from insisting, when they do, that partisan officials stop degrading the nation’s democracy. . . .

Courts have a critical role to play in curbing partisan gerrymandering. Over fifty years ago, we committed to providing judicial review in the redistricting arena, because we understood that “a denial of constitutionally protected rights demands judicial protection.” Indeed, the need for judicial review is at its most urgent in these cases. For here, politicians’ incentives conflict with voters’ interests, leaving citizens without any political remedy for their constitutional harms. Of course, their dire need provides no warrant for courts to disregard Article III. Because of the way this suit was litigated, I agree that the plaintiffs have so far failed to establish their standing to sue, and I fully concur in the Court’s opinion. But of one thing we may unfortunately be sure. Courts—and in particular this Court—will again be called on to redress extreme partisan gerrymanders. I am hopeful we will then step up to our responsibility to vindicate the Constitution against a contrary law.  

Justices Thomas and Gorsuch concurred but would have dismissed the case without allowing the plaintiffs another attempt at proving standing.

In a per curiam decision in Benisek v. Lamone, the Court affirmed a district court decision not to issue a preliminary injunction on a First Amendment retaliation partisan gerrymandering challenge to a single district in Maryland (citations omitted):

In addition, the District Court emphasized that it was concerned about “measuring the legality and constitutionality of any redistricting plan in Maryland . . . according to the proper legal standard.” In the District Court’s view, it would be “better equipped to make that legal determination and to chart a wise course for further proceedings” after this Court issued a decision in Gill. Plaintiffs ask this Court to vacate the District Court’s order and remand for further consideration of whether a preliminary injunction is appropriate. . . .

Even if we assume—contrary to the findings of the District Court— that plaintiffs were likely to succeed on the merits of their claims, the balance of equities and the public interest tilted against their request for a preliminary injunction. . . .  

On top of this time constraint was the legal uncertainty surrounding any potential remedy for the plaintiffs’ asserted injury. At the time the District Court made its decision, the appeal in Gill was pending before this Court. The District Court recognized that our decision in Gill had the potential to “shed light on critical questions in this case” and to set forth a “framework” by which plaintiffs’ claims could be decided and, potentially, remedied. . . . In these particular circumstances, we conclude that the District Court’s decision denying a preliminary injunction cannot be regarded as an abuse of discretion.

One line in Benisek regards the fact that the plaintiffs did not challenge the 2011 district map until 2016 (emphasis added):

In considering the balance of equities among the parties, we think that plaintiffs’ unnecessary, years-long delay in asking for preliminary injunctive relief weighed against their request.

This may prove to be extremely important in future litigation, as Democrats and liberals are still filing new cases challenging the maps enacted after the 2010 census.

But for now, the Supreme Court has decided to stay out of partisan gerrymandering claims, against the wishes of its liberal members to use the Court to judge the wisdom of political balances of power in the states.  That is a temporary victory for the proper role of the courts, temporary only because the liberals and Democrats will continue to bring these claims until the Court issues a decision explicitly barring courts from deciding them.  But today's decisions in Gill and Benisek have established justiciability standards that raise the bar for bringing those claims.

Supreme Court Issues Opinion in Masterpiece Cakeshop First Amendment Case

This morning, the Supreme Court issued its opinion in Masterpiece Cakeshop v. Colorado Civil Rights Commission.  Based on his religious beliefs, Colorado baker Jack Phillips refused to create a cake for a same-sex wedding in 2012, and the Colorado Civil Rights Commission, a state Administrative Law Judge, and the Colorado Court of Appeals all found that Phillips had violated the Colorado Anti-Discrimination Act.

Today, the Supreme Court, in a majority opinion by Justice Kennedy, held 7-2 that the Colorado Civil Rights Commission acted with "clear and impermissible hostility" toward Phillips' sincerely held religious beliefs (partially from the syllabus; internal citations omitted):

As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case.  

Another indication of hostility is the different treatment of Phillips’ case and the cases of other bakers with objections to anti-gay messages who prevailed before the Commission. The Commission ruled against Phillips in part on the theory that any message on the requested wedding cake would be attributed to the customer, not to the baker. Yet the Division did not address this point in any of the cases involving requests for cakes depicting anti-gay marriage symbolism. The Division also considered that each bakery was willing to sell other products to the prospective customers, but the Commission found Phillips’ willingness to do the same irrelevant. The State Court of Appeals’ brief discussion of this disparity of treatment does not answer Phillips’ concern that the State’s practice was to disfavor the religious basis of his objection. 

For these reasons, the Commission’s treatment of Phillips’ case violated the State’s duty under the First Amendment not to base laws or regulations on hostility to a religion or religious viewpoint. The government, consistent with the Constitution’s guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices. . . . [T]he record here demonstrates that the Commission’s consideration of Phillips’ case was neither tolerant nor respectful of his religious beliefs. . . . 

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated. 

Justice Thomas, joined by Justice Gorsuch, wrote a concurrence because the Colorado Court of Appeals' "reasoning flouts bedrock principles of our free-speech jurisprudence and would justify virtually any law that compels individuals to speak."  Justice Gorsuch, joined by Justice Alito, wrote separately to respond to Justices Ginsburg and Kagan's attempts to defend the Commission's actions (internal citations omitted): "In the face of so much evidence suggesting hostility toward Mr. Phillips’s sincerely held religious beliefs, two of our colleagues have written separately to suggest that the Commission acted neutrally toward his faith when it treated him differently from the other bakers—or that it could have easily done so consistent with the First Amendment. But, respectfully, I do not see how we might rescue the Commission from its error."

Whatever one's view of the background social policy debate over same-sex marriage, what happened to Jack Phillips should strike fear into the heart of every liberty-loving person who respects the rule of law.  An unelected government commission pre-judged his case according to the commissioners' own beliefs without regard for his constitutional rights.  (As a side note, this "bipartisan" commission is currently composed of four Democrats, one Republican, and two independents.  Given their outright "hostility" to Mr. Phillips, one can only imagine how fairly they evaluate Republicans that come before them.)  The Supreme Court righted this wrong today.

Judicial Confirmation Expert Carrie Severino to Speak at National Policy Conference

We are pleased to have Carrie Severino speak on one of our breakout panels on "Restoring the Rule of Law to the Judiciary" at RNLA’s National Policy Conference.  Carrie is one of the leading experts on the judicial confirmation process and the qualifications of federal judicial nominees.  Carrie has been in this role for years through both Republican and Democrat control of the White House and Senate.  A few of her recent views.

On Chairman Grassley’s leadership on the “blue slip” process.  

Senator Grassley's policy is completely consistent with the 100-year history of the blue slip. This CRS report gives lots of historical detail: https://t.co/OV5EmXIED0

— Carrie Severino (@JCNSeverino) February 16, 2018

Severino is a former clerk to Justice Clarence Thomas.  Unfortunately, part of her job is defending Justice Thomas from the periodic groundless attacks such as a cover story in New Yorker Magazine a few months ago.   

A boring rerun of discredited allegations from the 1990s, resurrected by a discredited journalist who was fired for lying and mistreating her own employees. https://t.co/msol7WsiK0

— Carrie Severino (@JCNSeverino) February 19, 2018

But Severino's expertise is not just limited to countering groundless Democrats' attacks or obstruction, she also provides insightful commentary on nominees.  A recent sample after President Trump nominated Britt Grant, a justice on the Georgia Supreme Court, and Patrick Wyrick, an associate justice on the Oklahoma Supreme Court.

Severino said the country would benefit from having more state justices serve on the federal bench. State supreme court justices often have the privilege of settling judicial matters whereas federal judges know that the buck does not stop on sensitive or controversial cases until the federal Supreme Court.

The process of nominating and confirming judicial nominees is needlessly complicated by often imagined or misinterpreted Senate procedures such as the blue slip.  Severino does a masterful job of cutting through the chatter and instead focusing on the abilities of the nominees.  

Justices Thomas and Gorsuch Question Deference to Agency Interpretations in Dissent

Last week, Justice Clarence Thomas and Justice Neil Gorsuch dissented from a denial of certiorari in Garco Construction v. Speer.  They would have granted cert to determine whether Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., and the deference to agencies' interpretation of their own regulations and rules contained in them, should be overruled.  Their dissent is a succinct indictment of this deference to administrative agencies' interpretations and a defense of the separation of powers (internal citations and notes omitted):

Seminole Rock and Auer require courts to give “controlling weight” to an agency’s interpretation of its own regulations. To qualify, an agency’s interpretation need not be “the best” reading of the regulation. It need only be a reading that is not “plainly erroneous or inconsistent with the regulation.” Although Seminole Rock deference was initially applied exclusively “in the price control context and only to official agency interpretations,” this Court has since expanded it to many contexts and to informal interpretations.  

Seminole Rock deference is constitutionally suspect. It transfers “the judge’s exercise of interpretive judgment to the agency,” which is “not properly constituted to exercise the judicial power.” It also undermines “the judicial ‘check’ on the political branches” by ceding the courts’ authority to independently interpret and apply legal texts. And it results in an “accumulation of governmental powers” by allowing the same agency that promulgated a regulation to “change the meaning” of that regulation “at [its] discretion.” This Court has never “put forward a persuasive justification” for Seminole Rock deference.  

By all accounts, Seminole Rock deference is “on its last gasp.” Several Members of this Court have said that it merits reconsideration in an appropriate case. Even the author of Auer came to doubt its correctness.  

This would have been an ideal case to reconsider Seminole Rock deference, as it illustrates the problems that the doctrine creates. . . . Because this Court has passed up another opportunity to remedy “precisely the accumulation of governmental powers that the Framers warned against,” I respectfully dissent from the denial of certiorari.  

Thank you, Justice Thomas and Justice Gorsuch, for defending the rule of law against otherwise unaccountable federal agencies.  We can only hope that soon the rest of the Court joins in restoring the proper balance of power between the branches of government. 

Top 10 Republican Lawyer Posts for 2016

Here are the top 10 posts for 2016 from The Republican Lawyer blog.  These posts show how the left is trying to destroy the First Amendment and how out of control the Obama Administration was on matters of speech.  Furthermore, they prove once again how Donald Trump’s victory was also a victory for the Constitution. 

10. "Judge Sanctions DOJ Attorneys for Putting Politics Ahead of Truth, Ethics, and Justice."  We will be happily working to confirm Senator Sessions as Attorney General to fight the ethical abuses and politicization of the Department of Justice under President Obama. 

9. "Brennan Center: The Only Democrats in New York who Don't See Vote Fraud." Any honest Democrat in New York would admit to you that vote fraud is real and that voter ID is needed; just most know that partisan groups like the Brennan Center will attack them for saying it.

8. "Democrats Keeping the Zombie Vote Alive."  Colorado Secretary of State Wayne Williams stated:  "It is impossible to vote from the grave legally” but apparently Democrats do it anyway. 

7. "Former SEC Commissioners Reject Political-Disclosure Rulemaking."  Obama Administration efforts to force mandatory disclosure of corporate spending on political and other advocacy activities should be viewed as primarily political rather than economic and, as such, would not serve to help shareholders evaluate corporate performance or promote shareholder value

6. "FEC Democrats Vote to Censor Books, Documentary Films."  FEC Democrats voted to assert regulatory power over books and films.  That means they believe the FEC has the power to censor certain books and documentary films.

5. "Congress Shall Make No Law: Protecting the First Amendment from Attack."  Preventing attacks on the First Amendment can only be done through fighting back against speech suppressive activity.

4. "RNLA Explains What Open, Fair and Honest Elections Mean."  By “open,” we mean a process in which all sides can have “observers” and the process is determined by legislatures well in advance.  By “fair,” we mean election officials should be from both parties and they should administer the election process in an orderly, unbiased fashion.  By “honest,” we mean free from fraud.

3. "Reactions to Donald Trump's Potential Supreme Court Justice List." One of the most popular issues for Donald Trump was his list of potential Supreme Court nominees. 

2. "Leader McConnell Won the Fight on the Scalia Vacancy."  Thank you, Sen. McConnell, for your leadership on judicial nominations and fighting to protect the judiciary from judges who will legislate from the bench and not respect the rule of law and the role of the courts.

1. "A Great Justice, Ignored Because of his Race."  The left excludes Justice Clarence Thomas from the National Museum of African American History and Culture despite his remarkable and impactful 25 years on the court.  

A Great Justice, Ignored Because of his Race

On September 24, 2016, the National Museum of African American History and Culture opened: 

The National Museum of African American History and Culture is the only national museum devoted exclusively to the documentation of African American life, history, and culture. It was established by Act of Congress in 2003, following decades of efforts to promote and highlight the contributions of African Americans.

Despite this, the Museum completely ignores the contributions of Justice Clarence Thomas, who ironically is celebrating 25 years on the bench this year:  

Sunday is the 25th anniversary of Clarence Thomas being sworn in as an associate justice of the Supreme Court of the United States. From his beginnings in Pin Point, Ga., where he lived in a shanty without indoor plumbing during the Jim Crow era, he has become the longest-serving black justice on the nation’s highest court. He emerged dignified from an undignified Senate confirmation and went on to produce a body of jurisprudence that has been praised by constitutional scholars across the ideological spectrum. But because he’s a black man who challenges liberal orthodoxy, his legacy has often been minimized.

His is a story that should be celebrated by all Americans. That it isn’t is a travesty.

As RNLA Member Mark Poletta details, Justice Thomas should be ranked as a great Justice regardless of his race but isn’t, in part because of his race:

Of Thomas’s approach, SCOTUSBlog’s Tom Goldstein, a well-regarded Supreme Court practitioner, says: “I disagree profoundly with Justice Thomas’s views on many questions,” but if “the measure of a Justice’s greatness is his contribution of new and thoughtful perspectives that enlarge the debate, then Justice Thomas is now our greatest Justice.”

Mainly, though, it’s that Thomas, throughout his career, never wavered from a set of principles that many liberals don’t think a black man can legitimately hold. He believes in individual rights, not group rights, a view enshrined in the Declaration of Independence. He opposes racial preferences both because they are bad policy and because they have no basis in the Constitution. Thomas held those views long before he arrived on the court, but they have been powerfully expressed in many of his opinions.

Thank you, Justice Thomas, for 25 years of faithful service to our country.  We will celebrate your career, even if liberals ignore your accomplishments. 

Justice Thomas Defends the Rule of Law

In his dissent to the Whole Woman's Health v. Hellerstedt opinion yesterday, Justice Thomas delivered a strong defense of the rule of law (citations omitted):

The majority’s furtive reconfiguration of the standard of scrutiny applicable to abortion restrictions also points to a deeper problem. The undue-burden standard is just one variant of the Court’s tiers-of-scrutiny approach to constitutional adjudication. And the label the Court affixes to its level of scrutiny in assessing whether the government can restrict a given right—be it “rational basis,” intermediate, strict, or something else—is increasingly a meaningless formalism. As the Court applies whatever standard it likes to any given case, nothing but empty words separates our constitutional decisions from judicial fiat. . . . 

But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. This Term, it is easier for a State to survive strict scrutiny despite discriminating on the basis of race in college admissions than it is for the same State to regulate how abortion doctors and clinics operate under the putatively less stringent undue-burden test. . . . Likewise, it is now easier for the government to restrict judicial candidates’ campaign speech than for the Government to define marriage—even though the former is subject to strict scrutiny and the latter was supposedly subject to some form of rational-basis review. . . . 

These labels now mean little. Whatever the Court claims to be doing, in practice it is treating its “doctrine referring to tiers of scrutiny as guidelines informing our approach to the case at hand, not tests to be mechanically applied.”  The Court should abandon the pretense that anything other than policy preferences underlies its balancing of constitutional rights and interests in any given case. . . . 

The Court has simultaneously transformed judicially created rights like the right to abortion into preferred constitutional rights, while disfavoring many of the rights actually enumerated in the Constitution. But our Constitution renounces the notion that some constitutional rights are more equal than others. A plaintiff either possesses the constitutional right he is asserting, or not—and if not, the judiciary has no business creating ad hoc exceptions so that others can assert rights that seem especially important to vindicate. A law either infringes a constitutional right, or not; there is no room for the judiciary to invent tolerable degrees of encroachment. Unless the Court abides by one set of rules to adjudicate constitutional rights, it will continue reducing constitutional law to policy-driven value judgments until the last shreds of its legitimacy disappear. . . . The majority’s embrace of a jurisprudence of rights-specific exceptions and balancing tests is “a regrettable concession of defeat—an acknowledgement that we have passed the point where ‘law,’ properly speaking, has any further application.” 

Justice Thomas' criticism of the Supreme Court's tendency to twist the law or apply indeterminate tests to reach the policy outcome it desires demonstrates, yet again, the importance of fighting for a new justice -- one who respects the rule of law -- to replace Justice Scalia.