Brickbat: Preach It!


A young preacher

Georgia Gwinnett College has agreed to pay $800,000 to settle a lawsuit brought by two students who were barred from talking to other students about their Christian faith or passing out literature in common areas of campus. Officials told Chike Uzuebunam he could speak only in two free speech zones that had to be reserved in advance and were only open a few hours a week. Joseph Bradford, another student who wished to preach on campus, later joined Uzuebunam in the suit against the college.

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Brickbat: Preach It!


A young preacher

Georgia Gwinnett College has agreed to pay $800,000 to settle a lawsuit brought by two students who were barred from talking to other students about their Christian faith or passing out literature in common areas of campus. Officials told Chike Uzuebunam he could speak only in two free speech zones that had to be reserved in advance and were only open a few hours a week. Joseph Bradford, another student who wished to preach on campus, later joined Uzuebunam in the suit against the college.

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Justice Thomas and Loving v. Virginia

Justice Thomas is married to a white woman. And the couple lives in Virginia. Prior to the Supreme Court’s decision in Loving v. Virginia, the law of the Commonwealth criminalized interracial marriage. In the wake of Dobbs, critics have tried to hoist Justice Thomas on his own petard: Oh yeah, you would overrule Obergefell, but what about Loving? Indeed, Justice McDonald of the Connecticut Supreme Court, who is in a same-sex marriage, got in on the fun with some wordplay:

“Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn’t have much to say about his ‘Loving’ marriage.”

This argument was predictable, and flawed.

First, Justice Thomas already addressed the status of Loving in his Obergefell dissent. And he expressly distinguished Loving from Obergefell.

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecutedfor marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3. [FN5] They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3. [FN6]

[FN5] The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between ” ‘freeborne English women’ ” and ” ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” Pascoe, supra, at 27–28. Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).

[FN6] The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

I hope that distinction will suffice. And I trust Justice McDonald can read the Obergefell dissent to learn Justice Thomas’s views on Loving.

Second, Loving was premised on both the Equal Protection Clause and the Due Process Clause. Even if you reject substantive due process, you could still find that Loving reached the correct result on the basis of the Equal Protection Clause. After all, the law literally treats people differently on the basis of their race. Two white people can get married, but a white person and a black person cannot. Even the most conservative jurists would deem such a law unconstitutional.

Third, there is an insinuation lurking in the background of the claim: Justice Thomas did not talk about Loving because doing so would undermine his own marriage. Or, stated differently, Justice Thomas cannot be neutral on the topic of interracial marriage, so he simply ignored the case; thus he is a hypocrite. This charge is perhaps the most pernicious. And it is not new. During the Prop 8 litigation, there was an effort to disqualify Judge Vaughn Walker because he was a gay man who was in a long-term relationship with another man. The defenders of Prop 8 claimed that Judge Walker could not possibly handle the case objectively because he stood to benefit personally from a ruling that Prop 8 was unconstitutional. Ultimately, Walker did not recuse. And he based his decision on a long line of cases involving black judges, who likewise refused to recuse in racial discrimination cases. I like to think that Judge Walker, like Justice Thomas, could objectively assess cases that could affect their personal relationships.

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Justice Thomas and Loving v. Virginia

Justice Thomas is married to a white woman. And the couple lives in Virginia. Prior to the Supreme Court’s decision in Loving v. Virginia, the law of the Commonwealth criminalized interracial marriage. In the wake of Dobbs, critics have tried to hoist Justice Thomas on his own petard: Oh yeah, you would overrule Obergefell, but what about Loving? Indeed, Justice McDonald of the Connecticut Supreme Court, who is in a same-sex marriage, got in on the fun with some wordplay:

“Mr. Justice Thomas had much to say today about my loving marriage. Oddly he didn’t have much to say about his ‘Loving’ marriage.”

This argument was predictable, and flawed.

First, Justice Thomas already addressed the status of Loving in his Obergefell dissent. And he expressly distinguished Loving from Obergefell.

Petitioners’ misconception of liberty carries over into their discussion of our precedents identifying a right to marry, not one of which has expanded the concept of “liberty” beyond the concept of negative liberty. Those precedents all involved absolute prohibitions on private actions associated with marriage. Loving v. Virginia, 388 U. S. 1 (1967), for example, involved a couple who was criminally prosecutedfor marrying in the District of Columbia and cohabiting in Virginia, id., at 2–3. [FN5] They were each sentenced to a year of imprisonment, suspended for a term of 25 years on the condition that they not reenter the Commonwealth together during that time. Id., at 3. [FN6]

[FN5] The suggestion of petitioners and their amici that antimiscegenation laws are akin to laws defining marriage as between one man and one woman is both offensive and inaccurate. “America’s earliest laws against interracial sex and marriage were spawned by slavery.” P. Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America 19 (2009). For instance, Maryland’s 1664 law prohibiting marriages between ” ‘freeborne English women’ ” and ” ‘Negro Sla[v]es’ ” was passed as part of the very act that authorized lifelong slavery in the colony. Id., at 19–20. Virginia’s antimiscegenation laws likewise were passed in a 1691 resolution entitled “An act for suppressing outlying Slaves.” Act of Apr. 1691, Ch. XVI, 3 Va. Stat. 86 (W. Hening ed. 1823) (reprint 1969) (italics deleted). “It was not until the Civil War threw the future of slavery into doubt that lawyers, legislators, and judges began to develop the elaborate justifications that signified the emergence of miscegenation law and made restrictions on interracial marriage the foundation of post-Civil War white supremacy.” Pascoe, supra, at 27–28. Laws defining marriage as between one man and one woman do not share this sordid history. The traditional definition of marriage has prevailed in every society that has recognized marriage throughout history. Brief for Scholars of History and Related Disciplines as Amici Curiae 1. It arose not out of a desire to shore up an invidious institution like slavery, but out of a desire “to increase the likelihood that children will be born and raised in stable and enduring family units by both the mothers and the fathers who brought them into this world.” Id., at 8. And it has existed in civilizations containing all manner of views on homosexuality. See Brief for Ryan T. Anderson as Amicus Curiae 11–12 (explaining that several famous ancient Greeks wrote approvingly of the traditional definition of marriage, though same-sex sexual relations were common in Greece at the time).

[FN6] The prohibition extended so far as to forbid even religious ceremonies, thus raising a serious question under the First Amendment’s Free Exercise Clause, as at least one amicus brief at the time pointed out. Brief for John J. Russell et al. as Amici Curiae in Loving v. Virginia, O.T. 1966, No. 395, pp. 12–16.

I hope that distinction will suffice. And I trust Justice McDonald can read the Obergefell dissent to learn Justice Thomas’s views on Loving.

Second, Loving was premised on both the Equal Protection Clause and the Due Process Clause. Even if you reject substantive due process, you could still find that Loving reached the correct result on the basis of the Equal Protection Clause. After all, the law literally treats people differently on the basis of their race. Two white people can get married, but a white person and a black person cannot. Even the most conservative jurists would deem such a law unconstitutional.

Third, there is an insinuation lurking in the background of the claim: Justice Thomas did not talk about Loving because doing so would undermine his own marriage. Or, stated differently, Justice Thomas cannot be neutral on the topic of interracial marriage, so he simply ignored the case; thus he is a hypocrite. This charge is perhaps the most pernicious. And it is not new. During the Prop 8 litigation, there was an effort to disqualify Judge Vaughn Walker because he was a gay man who was in a long-term relationship with another man. The defenders of Prop 8 claimed that Judge Walker could not possibly handle the case objectively because he stood to benefit personally from a ruling that Prop 8 was unconstitutional. Ultimately, Walker did not recuse. And he based his decision on a long line of cases involving black judges, who likewise refused to recuse in racial discrimination cases. I like to think that Judge Walker, like Justice Thomas, could objectively assess cases that could affect their personal relationships.

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When Is Government Official’s Blocking Commenter from Social Media Page “State Action”?

From Judge Amul Thapar’s Sixth Circuit opinion in Lindke v. Freed today, joined  by Judges Ralph Guy and Chad Readler:

Like many Americans, James Freed joined Facebook to connect with friends and family. He created a Facebook profile—a private account limited to his “friends”—and used it for years. But eventually, he grew too popular for Facebook’s 5,000-friend limit on profiles. So Freed converted his profile to a “page,” which has unlimited “followers” instead of friends. His page was public, and anyone could “follow” it; for the page category, Freed chose “public figure.”

In 2014, Freed was appointed city manager for Port Huron, Michigan. So he updated his Facebook page to reflect his new title. In the “About” section, he most recently described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed listed the Port Huron website as his page’s website, the City’s general email for “City Administration and Staff” (CommunityComments@PortHuron.org) as his page’s contact information, and the City Hall address as his page’s address.

Freed was an active Facebook user whose page featured a medley of posts. He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager. And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.

Freed’s Covid-19 posts caught the attention of one disconcerted citizen, Kevin Lindke. Lindke didn’t approve of how Freed was handling the pandemic. He saw Freed’s posts about new policies and responded with criticism in the comments section. Freed didn’t appreciate the comments, so he deleted them. And Freed eventually “blocked” Lindke from the page, which kept Lindke from commenting on Freed’s page and its posts.

Lindke sued, claiming this blocking violated Lindke’s First Amendment rights, but the Sixth Circuit said no:

Freed’s Facebook activity was not state action. The page neither derives from the duties of his office nor depends on his state authority. In short, Freed operated his Facebook page in his personal capacity, not his official capacity….

First, no state law, ordinance, or regulation compelled Freed to operate his Facebook page. In other words, it wasn’t designated by law as one of the actual or apparent duties of his office…. [T]here’s nothing to suggest operating the page was Freed’s official responsibility.

Lindke disagrees, arguing that Freed maintained the page as part of his “job duties/powers as City Manager.” Though he identifies no state law or even practice tasking Freed with social-media activity, Lindke points out that Freed believes “regular communication with local businesses and residents is essential to good government.” And Facebook is one avenue to fulfill this “essential” task of communicating with constituents.

This argument proves too much. When Freed visits the hardware store, chats with neighbors, or attends church services, he isn’t engaged in state action merely because he’s “communicating”—even if he’s talking about his job. If Port Huron’s list of city-manager responsibilities mentioned operating a Facebook page to tell residents about city initiatives, that might be a different story. But Freed’s own off-handed reference to “regular communication” can’t render every communication state action.

Next, Freed’s page did not belong to the office of city manager. Freed created the page years before taking office, and there’s no indication his successor would take it over. Indeed, it would make little sense for the new city manager to take over a page titled “@JamesRFreed1.” …

Nor does Freed rely on government employees to maintain his Facebook page. Freed is the page’s only administrator—none of his staff have access to it. And there’s no evidence that staffers were involved in preparing content for Freed to use on the page, or that staff ever posted on Freed’s behalf.

Lindke argues that some photos Freed posted “would be impossible for Freed to have done himself,” and thus concludes that government employees must be taking his photos. But even if that’s true, such minimal involvement isn’t enough to transform a personal page into an official one.

It could be different if Freed’s employees designed graphics specifically for the page and no other use. But snapping a few candids at a press conference is routine—not a service Freed accesses by the “authority of his office.” Indeed, his staff would likely do this even if Freed didn’t have a Facebook page. Plus, even if staff took photos at Freed’s direction, that would be de minimis help—not enough to render the page state action. So staff support can’t prop up Lindke’s claim, either.

Lindke presents no other reason Freed’s Facebook activity relates to his job duties or depends on his state authority. Instead, he argues that we should find state action where “the presentation of the account is connected with the official’s position.” And understandably so—several other courts have used that approach, focusing on a social-media page’s purpose and appearance. See, e.g., Knight First Amend. Inst. v. Trump, 928 F.3d 226, 234–36 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1220–21 (2021); Davison v. Randall, 912 F.3d 666, 680–81 (4th Cir. 2019); Campbell v. Reisch, 986 F.3d 822, 826–27 (8th Cir. 2021); Charudattan v. Darnell, 834 F. App’x 477, 482 (11th Cir. 2020) (per curiam).

Drawing on those opinions, especially the Second Circuit’s analysis in Knight First Amendment Institute v. Trump, Lindke claims that Freed used the “trappings of an official, state- run account” to give the impression that the page operated under the state’s imprimatur.

In support of this argument, Lindke points to Freed’s use of a city address, email, and website on the Facebook page, along with a profile photo featuring Freed wearing his city-manager pin and his frequent use of “we” and “us.” But these “trappings” weren’t the only facts the Second Circuit relied on in Knight. Indeed, that opinion emphasized the “substantial and pervasive government involvement with, and control over,” President Trump’s Twitter account.

No official account directs users to Freed’s page, as the White House’s Twitter account did in that case. And as discussed above, there’s no evidence Freed used government employees to maintain the account, as President Trump did there. So even on Knight‘s terms, the presentation-based factors Lindke identifies might not be enough….

[T]he factors Lindke points to resemble the factors we consider in assessing when police officers are engaged in state action. That is, Lindke’s focus on the page’s appearance seems akin to considering whether an officer is on duty, wears his uniform, displays his badge, identifies himself as an officer, or attempts to arrest anyone.

But the resemblance is shallow. In police-officer cases, we look to officers’ appearance because their appearance actually evokes state authority. We’re generally taught to stop for police, to listen to police, to provide information police request. And in many cases, an officer couldn’t take certain action without the authority of his office—authority he exudes when he wears his uniform, displays his badge, or informs a passerby that he is an officer. So in those cases, appearance is relevant to the question whether an officer could have acted as he did without the “authority of his office.” Here, by contrast, Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who’s a public official.

That’s why we part ways with other circuits’ approach to state action in this novel circumstance. Instead of examining a page’s appearance or purpose, we focus on the actor’s official duties and use of government resources or state employees. As explained above, these anchors are rooted in our circuit’s precedent on state action. And they offer predictable application for state officials and district courts alike, bringing the clarity of bright lines to a real-world context that’s often blurry.

But our state-action anchors are missing here. Freed did not operate his page to fulfill any actual or apparent duty of his office. And he didn’t use his governmental authority to maintain it. Thus, he was acting in his personal capacity—and there was no state action….

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When Is Government Official’s Blocking Commenter from Social Media Page “State Action”?

From Judge Amul Thapar’s Sixth Circuit opinion in Lindke v. Freed today, joined  by Judges Ralph Guy and Chad Readler:

Like many Americans, James Freed joined Facebook to connect with friends and family. He created a Facebook profile—a private account limited to his “friends”—and used it for years. But eventually, he grew too popular for Facebook’s 5,000-friend limit on profiles. So Freed converted his profile to a “page,” which has unlimited “followers” instead of friends. His page was public, and anyone could “follow” it; for the page category, Freed chose “public figure.”

In 2014, Freed was appointed city manager for Port Huron, Michigan. So he updated his Facebook page to reflect his new title. In the “About” section, he most recently described himself as “Daddy to Lucy, Husband to Jessie and City Manager, Chief Administrative Officer for the citizens of Port Huron, MI.” Freed listed the Port Huron website as his page’s website, the City’s general email for “City Administration and Staff” (CommunityComments@PortHuron.org) as his page’s contact information, and the City Hall address as his page’s address.

Freed was an active Facebook user whose page featured a medley of posts. He shared photos of his daughter’s birthday, his visits to local community events, and his family’s weekend picnics. He also posted about some of the administrative directives he issued as city manager. And when the Covid-19 pandemic hit in spring 2020, he posted about that too, sharing the policies he initiated for Port Huron and news articles on public-health measures and statistics.

Freed’s Covid-19 posts caught the attention of one disconcerted citizen, Kevin Lindke. Lindke didn’t approve of how Freed was handling the pandemic. He saw Freed’s posts about new policies and responded with criticism in the comments section. Freed didn’t appreciate the comments, so he deleted them. And Freed eventually “blocked” Lindke from the page, which kept Lindke from commenting on Freed’s page and its posts.

Lindke sued, claiming this blocking violated Lindke’s First Amendment rights, but the Sixth Circuit said no:

Freed’s Facebook activity was not state action. The page neither derives from the duties of his office nor depends on his state authority. In short, Freed operated his Facebook page in his personal capacity, not his official capacity….

First, no state law, ordinance, or regulation compelled Freed to operate his Facebook page. In other words, it wasn’t designated by law as one of the actual or apparent duties of his office…. [T]here’s nothing to suggest operating the page was Freed’s official responsibility.

Lindke disagrees, arguing that Freed maintained the page as part of his “job duties/powers as City Manager.” Though he identifies no state law or even practice tasking Freed with social-media activity, Lindke points out that Freed believes “regular communication with local businesses and residents is essential to good government.” And Facebook is one avenue to fulfill this “essential” task of communicating with constituents.

This argument proves too much. When Freed visits the hardware store, chats with neighbors, or attends church services, he isn’t engaged in state action merely because he’s “communicating”—even if he’s talking about his job. If Port Huron’s list of city-manager responsibilities mentioned operating a Facebook page to tell residents about city initiatives, that might be a different story. But Freed’s own off-handed reference to “regular communication” can’t render every communication state action.

Next, Freed’s page did not belong to the office of city manager. Freed created the page years before taking office, and there’s no indication his successor would take it over. Indeed, it would make little sense for the new city manager to take over a page titled “@JamesRFreed1.” …

Nor does Freed rely on government employees to maintain his Facebook page. Freed is the page’s only administrator—none of his staff have access to it. And there’s no evidence that staffers were involved in preparing content for Freed to use on the page, or that staff ever posted on Freed’s behalf.

Lindke argues that some photos Freed posted “would be impossible for Freed to have done himself,” and thus concludes that government employees must be taking his photos. But even if that’s true, such minimal involvement isn’t enough to transform a personal page into an official one.

It could be different if Freed’s employees designed graphics specifically for the page and no other use. But snapping a few candids at a press conference is routine—not a service Freed accesses by the “authority of his office.” Indeed, his staff would likely do this even if Freed didn’t have a Facebook page. Plus, even if staff took photos at Freed’s direction, that would be de minimis help—not enough to render the page state action. So staff support can’t prop up Lindke’s claim, either.

Lindke presents no other reason Freed’s Facebook activity relates to his job duties or depends on his state authority. Instead, he argues that we should find state action where “the presentation of the account is connected with the official’s position.” And understandably so—several other courts have used that approach, focusing on a social-media page’s purpose and appearance. See, e.g., Knight First Amend. Inst. v. Trump, 928 F.3d 226, 234–36 (2d Cir. 2019), vacated as moot sub nom. Biden v. Knight First Amend. Inst., 141 S. Ct. 1220, 1220–21 (2021); Davison v. Randall, 912 F.3d 666, 680–81 (4th Cir. 2019); Campbell v. Reisch, 986 F.3d 822, 826–27 (8th Cir. 2021); Charudattan v. Darnell, 834 F. App’x 477, 482 (11th Cir. 2020) (per curiam).

Drawing on those opinions, especially the Second Circuit’s analysis in Knight First Amendment Institute v. Trump, Lindke claims that Freed used the “trappings of an official, state- run account” to give the impression that the page operated under the state’s imprimatur.

In support of this argument, Lindke points to Freed’s use of a city address, email, and website on the Facebook page, along with a profile photo featuring Freed wearing his city-manager pin and his frequent use of “we” and “us.” But these “trappings” weren’t the only facts the Second Circuit relied on in Knight. Indeed, that opinion emphasized the “substantial and pervasive government involvement with, and control over,” President Trump’s Twitter account.

No official account directs users to Freed’s page, as the White House’s Twitter account did in that case. And as discussed above, there’s no evidence Freed used government employees to maintain the account, as President Trump did there. So even on Knight‘s terms, the presentation-based factors Lindke identifies might not be enough….

[T]he factors Lindke points to resemble the factors we consider in assessing when police officers are engaged in state action. That is, Lindke’s focus on the page’s appearance seems akin to considering whether an officer is on duty, wears his uniform, displays his badge, identifies himself as an officer, or attempts to arrest anyone.

But the resemblance is shallow. In police-officer cases, we look to officers’ appearance because their appearance actually evokes state authority. We’re generally taught to stop for police, to listen to police, to provide information police request. And in many cases, an officer couldn’t take certain action without the authority of his office—authority he exudes when he wears his uniform, displays his badge, or informs a passerby that he is an officer. So in those cases, appearance is relevant to the question whether an officer could have acted as he did without the “authority of his office.” Here, by contrast, Freed gains no authority by presenting himself as city manager on Facebook. His posts do not carry the force of law simply because the page says it belongs to a person who’s a public official.

That’s why we part ways with other circuits’ approach to state action in this novel circumstance. Instead of examining a page’s appearance or purpose, we focus on the actor’s official duties and use of government resources or state employees. As explained above, these anchors are rooted in our circuit’s precedent on state action. And they offer predictable application for state officials and district courts alike, bringing the clarity of bright lines to a real-world context that’s often blurry.

But our state-action anchors are missing here. Freed did not operate his page to fulfill any actual or apparent duty of his office. And he didn’t use his governmental authority to maintain it. Thus, he was acting in his personal capacity—and there was no state action….

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The “Judges of Wisdom” and the “Mystical Aphorisms of the Fortune Cookie”

The Dobbs dissent made little effort to defend the handicraft of Justice Blackmun in Roe. And the dissenters didn’t bother to endorse the “mystery of human life” pablum from Casey. But Justices Breyer, Sotomayor, and Kagan did heap praise on the stare decisis discussion from Casey–in particular, the focus on the Court’s “legitimacy.”

The joint dissenters wrote that overruling Roe would extract a “terrible price.”

Casey itself made the last point in explaining why it would not overrule Roe—though some members of its majority might not have joined Roe in the first instance. . . . And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so—to reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”—would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the Court would pay a “terrible price.”

Next, the joint dissenters wrote an encomium for Justices O’Connor, Kennedy, and Souter.

The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom.

We learn that Justices O’Connor, Kennedy, and Souter are “judges of wisdom.” For evidence of this wisdom, let me quote from Casey.

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

I know that the joint dissenters are fond of quoting from Justice Scalia. His rebuke from Obergefell is apt:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Casey did not exude “wisdom.” Nor did it demonstrate judging for that matter. Casey demonstrated a political calculation of the worst sort–engage in blatant misreading of precedent, carve a new rule out of whole cloth, and hope things work out. Not much wisdom here. Perhaps, to borrow from Fifth Circuit lingo, they exhibited minor wisdom.

The joint dissenters continue:

[Justice O’Connor, Kennedy, and Souter] would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.

There is a lot to unpack here. First, the joint dissenters have launched an attack on their recently-nominated colleagues who apparently passed an “ideological purity” and “deliver” the expected results to appease “some court watchers” (me!). (FYI, none of them pass my ideological purity test.) This statement is as much a rebuke of Justice Gorsuch, Kavanaugh, and Barrett–the young and the restless–than it is a praise of O’Connor, Kennedy, and Souter. Then again, we got the latter three because of the decisions of the former three. No more Souters!

Second, the joint dissenters charge that O’Connor, Kennedy, and Souter would not win any awards or prizes. Oh come on. In light of Casey and related cases, these judges were praised at every opportunity. There is actually a Wikipedia page that lists all the prizes and honorary degrees that Sandra Day O’Connor received. They are not lacking for honors. Liberals love conservatives who vote with liberals.  You don’t make it to the cover of Time Magazine by standing for conservative judicial principles.

Third, what the joint dissenters meant is that O’Connor and Kennedy would not receive praise from conservatives. Fair point. But when you are accepted at every level of elite society, who needs to hobnob at the Mayflower with other FedSoc grunts?

In my view, one of the most significant aspects of Dobbs is that we can move past the entire “stare decisis” and “legitimacy” debate. The Court did the deed. Roe is gone. The chips will fall where they may. The political process will work itself through. But the Justices themselves will no longer feel constrained by the Casey fiction that decisions must be made with regard to popular opinion. Courage “under fire” means ruling without regard to those public currents.

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The “Judges of Wisdom” and the “Mystical Aphorisms of the Fortune Cookie”

The Dobbs dissent made little effort to defend the handicraft of Justice Blackmun in Roe. And the dissenters didn’t bother to endorse the “mystery of human life” pablum from Casey. But Justices Breyer, Sotomayor, and Kagan did heap praise on the stare decisis discussion from Casey–in particular, the focus on the Court’s “legitimacy.”

The joint dissenters wrote that overruling Roe would extract a “terrible price.”

Casey itself made the last point in explaining why it would not overrule Roe—though some members of its majority might not have joined Roe in the first instance. . . . And to overrule for that reason? Quoting Justice Stewart, Casey explained that to do so—to reverse prior law “upon a ground no firmer than a change in [the Court’s] membership”—would invite the view that “this institution is little different from the two political branches of the Government.” No view, Casey thought, could do “more lasting injury to this Court and to the system of law which it is our abiding mission to serve.” For overruling Roe, Casey concluded, the Court would pay a “terrible price.”

Next, the joint dissenters wrote an encomium for Justices O’Connor, Kennedy, and Souter.

The Justices who wrote those words—O’Connor, Kennedy, and Souter—they were judges of wisdom.

We learn that Justices O’Connor, Kennedy, and Souter are “judges of wisdom.” For evidence of this wisdom, let me quote from Casey.

At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

I know that the joint dissenters are fond of quoting from Justice Scalia. His rebuke from Obergefell is apt:

If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.

Casey did not exude “wisdom.” Nor did it demonstrate judging for that matter. Casey demonstrated a political calculation of the worst sort–engage in blatant misreading of precedent, carve a new rule out of whole cloth, and hope things work out. Not much wisdom here. Perhaps, to borrow from Fifth Circuit lingo, they exhibited minor wisdom.

The joint dissenters continue:

[Justice O’Connor, Kennedy, and Souter] would not have won any contests for the kind of ideological purity some court watchers want Justices to deliver. But if there were awards for Justices who left this Court better than they found it? And who for that reason left this country better? And the rule of law stronger? Sign those Justices up.

There is a lot to unpack here. First, the joint dissenters have launched an attack on their recently-nominated colleagues who apparently passed an “ideological purity” and “deliver” the expected results to appease “some court watchers” (me!). (FYI, none of them pass my ideological purity test.) This statement is as much a rebuke of Justice Gorsuch, Kavanaugh, and Barrett–the young and the restless–than it is a praise of O’Connor, Kennedy, and Souter. Then again, we got the latter three because of the decisions of the former three. No more Souters!

Second, the joint dissenters charge that O’Connor, Kennedy, and Souter would not win any awards or prizes. Oh come on. In light of Casey and related cases, these judges were praised at every opportunity. There is actually a Wikipedia page that lists all the prizes and honorary degrees that Sandra Day O’Connor received. They are not lacking for honors. Liberals love conservatives who vote with liberals.  You don’t make it to the cover of Time Magazine by standing for conservative judicial principles.

Third, what the joint dissenters meant is that O’Connor and Kennedy would not receive praise from conservatives. Fair point. But when you are accepted at every level of elite society, who needs to hobnob at the Mayflower with other FedSoc grunts?

In my view, one of the most significant aspects of Dobbs is that we can move past the entire “stare decisis” and “legitimacy” debate. The Court did the deed. Roe is gone. The chips will fall where they may. The political process will work itself through. But the Justices themselves will no longer feel constrained by the Casey fiction that decisions must be made with regard to popular opinion. Courage “under fire” means ruling without regard to those public currents.

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Glenn Youngkin’s Proposed 15-Week Abortion Ban Speaks to Abortion Moderates


Virginia Gov. Youngkin speaking at podium

On Friday, Virginia Gov. Glenn Youngkin (R) announced that he would push for legislation restricting most abortions after 15 weeks. Shortly following the Supreme Court’s decision repealing Roe v. Wade (1973), Youngkin’s office said that it would enlist four Republican lawmakers to draft a bill banning abortions in the state after 15 weeks, with exceptions for rape, incest, and cases where the mother’s life is endangered. Youngkin also indicated that he would be willing to compromise on a 20-week ban.

“I’m proud to be a pro-life Governor and plan to take every action I can to protect life,” Youngkin said in a Friday press release. “The truth is, Virginians want fewer abortions, not more abortions. We can build a bipartisan consensus on protecting the life of unborn children, especially when they begin to feel pain in the womb, and importantly supporting mothers and families who choose life.”

Youngkin’s proposal is unlikely to draw opposition from abortion moderates. A 2022 Pew Research poll indicated that 71 percent of Americans believe abortion should be legal in at least some circumstances. Gallup reported similar numbers in 2018 but noted that while “six in 10 U.S. adults think abortion should generally be legal in the first three months of pregnancy….Support drops by about half, to 28%, for abortions conducted in the second three months, and by half again, to 13%, in the final three months.”

These abortion moderates do not support hardline Republican prohibitions on all abortions or progressive policies that would allow abortions in the third trimester. They are the kind of voters who support making abortion “safe, legal, and rare,” the policy tagline coined by former President Bill Clinton in the 1990s.  

Despite the political success of Clinton’s position, state legislators have taken increasingly extremist positions on abortion. Following Friday’s ruling, 10 states quickly banned abortion with no exceptions for rape and incest, while six other states currently allow abortion with no gestational limit. 

While some Republicans vow to punish women who obtain abortions with the death penalty, Democratic politicians have regularly engaged in verbal gymnastics to avoid opposing any limits to abortion at all—including in the latest stages of pregnancy.

In contrast, Youngkin’s proposal offers a moderate solution to the issue of abortion. His 15-week ban speaks to a significant segment of public opinion, as well as conforms to the standard in much of Europe. 

A 15-week ban would still allow for the vast majority of abortions to take place, as 2019 CDC data found that 92.7 percent of abortions are performed at less than 13 weeks gestation. However, it prohibits the procedure in much of the second and all of the third trimester. 

The proposal has already earned criticism from both pro-choice and pro-life legislators. At an abortion rights rally on Friday, state Sen. Jennifer L. McClellan (D–Richmond) said, “We’re going to say no. We’re going to say to the party that professes to care about parental rights, you will not insert yourself into the decision whether to become a parent in the first place.” Conversely, congressman Bob Good (R–Va.) took to Twitter to write that “[i]n Virginia, let’s not pretend the Democrats will agree to ANY restrictions on abortion. No point in working alone so modestly for ‘pain capable’ legislation.”

For Virginians who find themselves stuck between two increasingly radical camps, Youngkin’s approach could offer a compelling alternative for handling abortion policy in a post-Roe world—one which prioritizes moderates’ concerns for both female bodily autonomy and the lives of developing fetuses. 

The post Glenn Youngkin's Proposed 15-Week Abortion Ban Speaks to Abortion Moderates appeared first on Reason.com.

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Glenn Youngkin’s Proposed 15-Week Abortion Ban Speaks to Abortion Moderates


Virginia Gov. Youngkin speaking at podium

On Friday, Virginia Gov. Glenn Youngkin (R) announced that he would push for legislation restricting most abortions after 15 weeks. Shortly following the Supreme Court’s decision repealing Roe v. Wade (1973), Youngkin’s office said that it would enlist four Republican lawmakers to draft a bill banning abortions in the state after 15 weeks, with exceptions for rape, incest, and cases where the mother’s life is endangered. Youngkin also indicated that he would be willing to compromise on a 20-week ban.

“I’m proud to be a pro-life Governor and plan to take every action I can to protect life,” Youngkin said in a Friday press release. “The truth is, Virginians want fewer abortions, not more abortions. We can build a bipartisan consensus on protecting the life of unborn children, especially when they begin to feel pain in the womb, and importantly supporting mothers and families who choose life.”

Youngkin’s proposal is unlikely to draw opposition from abortion moderates. A 2022 Pew Research poll indicated that 71 percent of Americans believe abortion should be legal in at least some circumstances. Gallup reported similar numbers in 2018 but noted that while “six in 10 U.S. adults think abortion should generally be legal in the first three months of pregnancy….Support drops by about half, to 28%, for abortions conducted in the second three months, and by half again, to 13%, in the final three months.”

These abortion moderates do not support hardline Republican prohibitions on all abortions or progressive policies that would allow abortions in the third trimester. They are the kind of voters who support making abortion “safe, legal, and rare,” the policy tagline coined by former President Bill Clinton in the 1990s.  

Despite the political success of Clinton’s position, state legislators have taken increasingly extremist positions on abortion. Following Friday’s ruling, 10 states quickly banned abortion with no exceptions for rape and incest, while six other states currently allow abortion with no gestational limit. 

While some Republicans vow to punish women who obtain abortions with the death penalty, Democratic politicians have regularly engaged in verbal gymnastics to avoid opposing any limits to abortion at all—including in the latest stages of pregnancy.

In contrast, Youngkin’s proposal offers a moderate solution to the issue of abortion. His 15-week ban speaks to a significant segment of public opinion, as well as conforms to the standard in much of Europe. 

A 15-week ban would still allow for the vast majority of abortions to take place, as 2019 CDC data found that 92.7 percent of abortions are performed at less than 13 weeks gestation. However, it prohibits the procedure in much of the second and all of the third trimester. 

The proposal has already earned criticism from both pro-choice and pro-life legislators. At an abortion rights rally on Friday, state Sen. Jennifer L. McClellan (D–Richmond) said, “We’re going to say no. We’re going to say to the party that professes to care about parental rights, you will not insert yourself into the decision whether to become a parent in the first place.” Conversely, congressman Bob Good (R–Va.) took to Twitter to write that “[i]n Virginia, let’s not pretend the Democrats will agree to ANY restrictions on abortion. No point in working alone so modestly for ‘pain capable’ legislation.”

For Virginians who find themselves stuck between two increasingly radical camps, Youngkin’s approach could offer a compelling alternative for handling abortion policy in a post-Roe world—one which prioritizes moderates’ concerns for both female bodily autonomy and the lives of developing fetuses. 

The post Glenn Youngkin's Proposed 15-Week Abortion Ban Speaks to Abortion Moderates appeared first on Reason.com.

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