Hadley Arkes, a poor polemicist

Professor Hadley Arkes is the Ney Professor of Jurisprudence at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. He is a political scientist.

Arkes is not a fan of mine because of the partial-birth abortion cases I decided and which ended up in the Supreme Court. See, e.g., Hadley P. Arkes, Gonzales v. Carhart: What Hath Kennedy Wrought?, The Federalist Society (June 3, 2007)  (“The old, implausible charge of ‘vagueness’ could be rolled out again, and one could count on Judge Richard Kopf in Nebraska to sustain that claim, or virtually any other colorable ground that people were audacious enough to offer as a ground for challenging the law.”) (requires download of PDF); Hadley Arkes, Good May Yet Come Gonzales v. Carhart opens up a possibility, albeit slight, for further restricting abortion, National Review Online (April 24, 2007) (“My own apprehension was that the Dr. Carharts in the country, or the agents of Planned Parenthood, would simply come into court again with any of the rationales that have worked in the past. Judges like Richard Kopf in Nebraska have already shown themselves altogether willing to credit any argument that is offered by the challengers.”); Hadley Arkes, Natural Rights and the Right to ChooseCambridge University Press pp. 122, 140, 239 (2004) (stating, among other things, that by “preserving [his] commitment to abortion unimpaired, unqualified, [Kopf is] compelled to say things that judges, or cultivated men, could not have said in public in another age. . . . In other words, Dismemberment ‘R’ Us.”).

Now, I don’t care a bit about what Arkes thinks of me or my decisions. Indeed, he is not a lawyer, and I find his thinking shallow. Moreover, he is a “natural rights” devotee and I agree with Bentham that such stuff is “nonsense on stilts.” That said, Brother Arkes is entitled to pick his own poison. But I draw the line when he accuses me of being a Catholic-hating religious bigot.*

In Another Opening, Another Show: The Red Mass of 2014, The Catholic Thing (October 7, 2014), Arkes writes the following about me in the context of the Red Mass** attended by Chief Justice Roberts, and Associate Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas, Stephen G. Breyer and Elena Kagan at St. Matthew’s Cathedral in Washington, DC:

In the aftermath last year of the Hobby Lobby case, one federal judge, Richard Kopf, denounced that decision as one produced by “five male justices of the Supreme Court, who are all members of the Catholic faith.” The offense imputed to these Catholic judges is that they shielded a businessman from the obligation to purchase abortifacients for his employees when he bore deep moral objections to abortion.

“To the average person,” said Judge Kopf, “the result looks stupid and smells worse.” No, the average person is more likely to wonder why women cannot afford contraceptives and abortifacients for themselves. Or why the provision of these devices should become the obligation of an employer – and why they should be forced on a generous employer who has moral objections to them.

A small trip down memory lane may bring back Judge Kopf as the federal judge who treated with contempt the work of the legislators in Nebraska in seeking to forbid the grisly procedure named “partial-birth abortion.” In that procedure the head of the child was punctured and its brains sucked out. But Judge Kopf couldn’t see how this procedure could be distinguished from others, quite beyond challenge.

For other abortions “routinely ‘deliberately and intentionally’ deliver ‘vaginally’ a ‘substantial portion’ of a living fetus in order to kill it.” In other words, Dismemberment R Us. That is what abortion involves, all thoroughly sustained by the Constitution, in the eyes of Judge Kopf, and all apparently beyond the reproach, except from Catholic judges appointed by a Republican president.

Arkes is referring to and partially quoting from an earlier post of mine entitled Remembering Alexander Bickel’s passive virtues and the Hobby Lobby cases.  In the part of the post that Arkes summarizes inaccurately, I made a point about judicial decisions, appearances and the public’s acceptance of the law. This is what I wrote:

In the Hobby Lobby cases, five male Justices of the Supreme Court, who are all members of the Catholic faith and who each were appointed by a President who hailed from the Republican party, decided that a huge corporation, with thousands of employees and gargantuan revenues, was a “person” entitled to assert a religious objection to the Affordable Care Act’s contraception mandate because that corporation was “closely held” by family members. To the average person, the result looks stupid and smells worse.

To most people, the decision looks stupid ’cause corporations are not persons, all the legal mumbo jumbo notwithstanding. The decision looks misogynistic because the majority were all men. It looks partisan because all were appointed by a Republican. The decision looks religiously motivated because each member of the majority belongs to the Catholic church, and that religious organization is opposed to contraception. While “looks” don’t matter to the logic of the law (and I am not saying the Justices are actually motivated by such things), all of us know from experience that appearances matter to the public’s acceptance of the law.

(Emphasis added.)

It is a poor polemicist indeed who blatantly and consciously misrepresents another person’s views in an effort to score a cheap point. But, in truth, such conduct, while in poor taste, is probably only a venial sin. So, Hadley, say you’re sorry–it is the natural thing to do–and all will be forgiven.


*Being Catholics, my wife and five of her siblings would find such a suggestion amusing. Candor requires that I admit that a sixth sibling became an Episcopalian–she was always a wild child.

**I am mystified by the Professor’s attack on me in an article about the Red Mass.

“Partial-Birth Abortion” litigation: An example of the problem of an uncertain role definition for federal trial judges

Initially, three things need to be plain:

(1) I do not write to take a substantive position one way or another on abortion regulation by the state or federal government.

(2) I intend no criticism of the individual justices.  Moreover, I intend no substantive criticism of the Supreme Court’s abortion jurisprudence.

(3) In the fall of 2011, I recused myself from handling any more civil cases involving the regulation of abortion.  See General Order No. 2011-10 (D. Neb.) (Kopf, J., recusing and explaining basis for recusal),

Turning to the meat of this post, I was the trial judge in both of the Carhart cases that ended up in the Supreme Court.  Compare Carhart v. Stenberg, 11 F. Supp. 2d 1099 (D. Neb. 1998) (Nebraska’s partial-birth abortion statute was unconstitutional), aff’d, 192 F.3d 1142 (8th Cir. 1999), aff’d, Stenberg v. Carhart, 530 U.S. 914 (2000) with Carhart v. Ashcroft, 331 F. Supp. 2d 805 (D. Neb. 2004) (the federal partial-birth abortion statute was unconstitutional), aff’d, Carhart v. Gonzales, 413 F.3d 791 (8th Cir.2005), rev’d, Gonzales v. Carhart, 550 U.S. 124 (2007).

Even though there was very little difference in the cases from my perspective, the Court affirmed the first decision but reversed the second.  To say that I was perplexed is an understatement.  It is that perplexity that prompts this post.

At the heart of abortion litigation is the Supreme Court’s “undue burden” standard.   See Planned Parenthood v. Casey, 505 U.S. 833, 845-46, 877, 879 (1992).  The Supreme Court’s test asks whether, prior to viability, the regulation unduly burdens a woman’s decision to terminate her pregnancy.  According to the Court, unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden.  Assume that as a trial judge I am only interested in knowing how to understand and then apply the “undue burden” standard.  Assume further that I approach that task with no conscious bias.   How do I go about my task?

I could and should use precedent to try to parse the meaning of “undue burden.”   See Richard G. Kopf, An Essay on Precedent, Standing Bear, Partial-Birth Abortion and Word Games–A Response to Steve Grasz and Other Conservatives, 35 Creighton L. Rev. 11 (2002).  But what if the intellectual giants of the lower federal courts can’t agree on what the words mean.  See, e.g.Hope Clinic v. Ryan, 195 F.3d 857, 861, 876 (7th Cir. 1999), cert. granted and judgment vacated by 530 U.S. 914 (2000) (Judge Easterbrook wrote the opinion upholding efforts to ban the practice and Judge Posner wrote a stinging dissent).  When that happens, the federal trial judge is in a real pickle.

Now, this is not a “poor me” lament.  I get paid the same whether my decisions are affirmed or reversed.   Moreover, you can’t become or long survive as a federal trial judge without a strong ego.  (Insert the snark of your choice!)   The law is necessarily ambiguous.  It is ever-changing.   Blah, blah, blah.

So, why do I write this post?   Intending no effrontery, I urge the justices to write their opinions with the role of the federal trial judge more keenly in mind because it is in everyone’s interest to do so.  And, I offer what to many may seem a simple-minded way of going about doing so.

When writing opinions, the justices would do well to ask:   In subsequent cases, is the federal trial judge to behave more like the Herculean judge or more like the judge-as-umpire when applying our decision?  Of course, the more ambiguous the role definition the less likely it is that the federal trial judge will get it right.   Everyone’s interests are served by providing greater precision.

If the justices want to be more explicit about role definitions for trial judges, then, and as odd as it may seem, they might also try writing jury instructions after reading their opinions and before they are published.  (To be clear, I know that juries typically have no role in abortion cases.)   We communicate to lay people all sorts of tricky legal stuff in jury instructions.   We define conspiracies and motivating factors .  In so doing, our language sometimes gives juries broad latitude and other times very little latitude.  While writing jury instructions may seem pedestrian, I have often found that you cannot fully understand the substantive law until you can put it into jury instructions.  The private and in-chambers exercise of writing jury instructions as a test for opinion clarity would serve to focus the justices on the important work of assigning more precise role definitions for federal trial judges.

I appreciate that the justices have many tasks to accomplish when writing opinions and many of those tasks are very difficult and not apparent to the rest of us.   See, e.g., Jeffrey Toobin, The Nine, pp.  48-59 (Doubleday 2007) (discussing the interplay between the justices that resulted in the Casey opinion and the “undue burden” test).   Nonetheless, providing the federal trial judge with a clear role definition ought to be at the forefront.*


*Until the appointment of Justice Sotomayor in  2009, no justice has had experience as a federal trial judge since Justice Whittaker ended his tenure in 1962.

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