In a post yesterday, I described why I think Judge Royce Lamberth’s decision on Monday that the Dickey-Wicker Amendment prohibits the federal government from funding human embryonic stem cell (hESC) research is wrong on the merits. Technically, however, the decision was not a ruling on the merits. Lamberth actually granted the plaintiffs’ motion for a preliminary injunction. Because the issue is a pure question of statutory interpretation, and because the opinion in no way suggested that it was tentative in nature, it seems almost certain that Lamberth will eventually replace the preliminary injunction with a permanent one. But the government is entitled to another day in court before this can happen.
Lamberth’s grant of the preliminary injunction is even more troubling as a legal matter than his quasi-merits determination. To win a preliminary injunction, the plaintiff must show (1) a substantial likelihood of success on the merits; (2) that the plaintiff will suffer “irreparable injury” in the absence of an injunction; (3) the injunction would not substantially harm other interested parties; and (4) that the injunction would further the public interest. The plaintiff must carry the burden of persuasion “by a clear showing.” Cobell v. Norton, 391 F.3d 251 (D.C. Cir. 2004).
Let’s take a look at Lamberth’s analysis of these four guideposts:
Although I do not agree with the judge’s analysis of merits (i.e., the meaning of the Dickey-Wicker Amendment), under his analysis, the plaintiffs would seem to have a substantial likelihood of success on the merits.
The second question is whether, if the plaintiffs were to eventually prevail on the merits of their claim, a failure to enjoin the government from funding hESC research in the intervening period would cause them irreparable harm. Judge Lamberth finds that the plaintiffs “have met this high burden.”
The plaintiffs argue that the harm is that, as scientists who seek federal funding of their non-hESC research, they have to compete against a larger pool of grant applicants and have a reduced chance of winning funding as long as the government is handing out limited research dollars to hESC researchers. To support his conclusion that this constitutes irreparable injury, Judge Lamberth cites the D.C. Circuit’s prior holding in this case that the plaintiffs’ highly speculative claim of harm is sufficient to give the plaintiffs standing to maintain this lawsuit (a decision that I think is probably incorrect, but that is a different issue). But the standard for demonstrating “injury-in-fact” that is a requirement of standing is not the same as the irreparable injury standard; the preliminary injunction sought by the plaintiffs is an extraordinary remedy. First, the likelihood that the plaintiffs would actually be denied a grant that they would win were if not for the competition of the hESC researchers is quite speculative. Second, if this were to happen, they could be compensated after the fact. That is, should the plaintiffs ultimately prevail on the merits, the court could determine whether any unsuccessful grant proposals submitted in the intervening period had earned a high enough score in the NIH review process that they would have won funding were it not for the fact that hESC projects had not been considered. If the hESC projects squeezed out the plaintiffs project, and the hESC grants are found to be illegal, the court could then order the NIH to approve the plaintiffs’ grant proposals in question. The harm would indeed be reparable, and no rank speculation would be needed to establish its existence or severity.
Regardless of the harm that the plaintiffs will suffer should they ultimately prevail on the merits while the government is permitted to approve grants to hESC researchers in the meantime, Judge Lamberth realizes that in the preliminary injunction analysis this harm needs to be balanced against the hardship that will be suffered by others if the defendants ultimately prevail on the merits but are enjoined from making hESC grants in the intervening period. Here, Lamberth finds that the injunction “would not seriously harm ESC researchers because the injunction would simply preserve the status quo” and “the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative.”
There are two substantial flaws in this analysis. First, hESC researchers will suffer more harm from a preliminary injunction than non-hESC researchers will suffer from the lack of an injunction. The plaintiffs still might win NIH grants if an injunction is not granted — the NIH funds all kinds of disease research, including the type of adult stem cell research the plaintiffs apparently do, not just hESC research. But hESC researchers have no chance at all of winning funding if the injunction is issued. Judge Lamberth points out that hESC researchers can seek private funding even if an injunction is in place, but it is equally true that non-hESC researchers can seek private funding if the injunction is not in place!
Second, it is inconsistent, to say the least, to dismiss the potential harm to disease-sufferers as the result of an injunction as speculative because “it is not certain whether ESC research will result in new and successful treatments for diseases,” while saying that the harm alleged by the plaintiffs is “not speculative.” hESC research might or might not cure diseases, and an injunction prior to a final decision on the merits might or might not slow down progress. But it is just as uncertain whether the lack of an injunction will actually cost the plaintiffs grants they would otherwise win. And while both types of harm are uncertain, the severity of the possible harm to disease-sufferers, who might lose their lives in the meantime, is clearly is much worse than the severity of the possible harm to the plaintiff-grant applicants.
Finally, Judge Lamberth finds that “the public interest weighs in favor of a preliminary injunction.” Why? Because it is the public interest for the courts and agencies to carry out the will of Congress. All Judge Lamberth does here is reiterate the first prong of the analysis; that is, because Lamberth believes the plaintiffs are right on the merits, it is the public interest to give them a preliminary injunction. Whatever factors the judge should take into account to determine the “public interest,” logic dictates that the inquiry must be something different than who the judge thinks is likely to prevail on the merits, a point that is already captured elsewhere in the analysis.
At the end of the day, the balance of hardships tilts strongly in the direction of hESC researchers and the patients who hope their work will lead to cures, not in the direction of the plaintiffs who might see their chances of winning a grant reduced. Regardless of who is right on the merits, the preliminary injunction should not have been granted. I am very confident that the D.C. Circuit will quickly reverse Judge Lamberth on this issue and allow the NIH to continue to make grants to hESC researchers while the case winds its way to a final judgment, first in Judge Lamberth’s court and then in the D.C. Circuit.
J. Aldridge says:
I think the entire question should be limited to whether govt funds are going to be used for the “creation of a human embryo or embryos for research purposes” or “research in which a human embryo or embryos are destroyed.”
If the answer is clearly yes to the above then the signed executive order is void on its face.
August 25, 2010, 10:13 pmzuch says:
Prof. Korobkin:
I agree that the case will wind its way to the D.C. Circuit on the merits, but I’m less sanguine than you that today’s preponderance of conservative judges will overturn Lamberth’s preliminary injunction. After watching what the courts did in Louisiana on the administration’s drilling moratorium, I think that there’s a fair bit of chance that conservatives on the appeals court will find similar to Lamberth in favour of the result they want, in disregard of common and established law.
I say this after watching seemingly a whole thread of people accepting Lamberth’s insane reasoning as being perfectly acceptable.
Cheers,
August 25, 2010, 10:19 pmRich B. says:
What makes the matter move beyond “shocking” to “bizarre” is that less than a year ago, Judge Lamberth denied Plaintiff’s standing in the matter, writing:
“Last, even if the competitive standing doctrine did apply, Drs. Sherley and Deisher would not have standing because the guidelines will not “almost surely cause [Drs. Sherely and Deisher] to lose” funding. The application process to receive NIH funding is extremely competitive. Only about 22% of applications receive NIH funding. Thus, even if the guidelines did not exist, Drs. Sherley and Deisher are not assured of receiving funding for adult stem cell research.”
Judge Lamberth was reversed by the D.C. Circuit, so next had to consider the merits. But how could an injury that was so weak that it didn’t even confer standing suddenly become “irreparable”?
August 25, 2010, 10:30 pmJAB says:
In this post you seem to count the possible benefits to people who suffer from diseases that might be cured by stem cell research, but not to people who suffer from diseases that might be cured by whoever gets the grant instead of the stem cell researchers. Presumably the advantages to beneficiaries of the research done by the runner-up for the grant has only marginally smaller potential health benefits, if at all smaller.
August 25, 2010, 10:37 pmll says:
“clearly”–a sign that one is promulgating his own opinion without regard to any facts.
There have been, over the past ten (10) years, numerous stories about breakthroughs in creating embryonic-type or pluripotent stem cells from adult stem cells.
August 25, 2010, 11:07 pmSoronel Haetir says:
If this post is an accurate summary of the ruling it is one more sign that balancing tests allow judges to come to whatever decision they desire.
August 25, 2010, 11:23 pmPES says:
While I tend to agree that there are a lot of cases where one could reach either of two opposing decisions in good faith and consistent with prior law, I don’t think this particular case is a good example of that phenomenon. I have to think the judge will be reversed in this case because he is so obviously wrong — not necessarily in his interpretation, but in his meta-decision that it is the only reasonable interpretation (getting rid of Chevron deference). The case doesn’t serve as evidence of the pliability of balancing tests so much as evidence that a district court judge sometimes makes a blatant mistake of law involving a balancing test and deservedly gets smacked down by the appellate court.
August 25, 2010, 11:34 pmOrenWithAnE says:
Perhaps you should read some of the comments by Dickey or Wicker about it. Then see if you can square Lamberth’s reasoning with their statute.
August 25, 2010, 11:58 pmArthur Kirkland says:
Laying on of hands?
August 26, 2010, 12:12 amzuch says:
I dunno. It’s an election years, and the crazy is out like there’s a blue moon?
Cheers,
August 26, 2010, 12:49 amzuch says:
Not here. Here the facts support Prof. Korobkin. Getting killed is — by almost anyone’s account (except perhaps a hard-core Libertarian’s) — worse (more “sever[e]“) than losing grant money.
Cheers,
August 26, 2010, 12:54 amzuch says:
Why? They are only two Congresscritters of many. Plus, plain language trumps intent, moreso “fondest wishes”.
Cheers,
August 26, 2010, 12:58 amAndrew says:
Think of it this way: suppose federal funds are prohibited for research in which a polka-dotted test tube is created. In a laboratory, Person A is a glassblower who creates a polka-dotted test tube, without federal funds, specifically for use by Person B (and others). Then Person B, in the same (or a different) laboratory, uses the polka-dotted test tube for various experiments with federal funds. I think Person B is illegally participating in “research” in which a polka-dotted test tube is created. So I tend to be with Judge Lamberth here.
August 26, 2010, 1:06 amzuch says:
I suppose I could look at some of the things that Dickey has said and see what he has in mind. Ummm, lessee:
So far so good. As Dory would say, “Nope, nuttin’ in my noggin.”
Yes, these two might insist that their amendment not only prescribes the death penalty for any doctor that even reads articles about ESC research, but also provides for the impeachment of Obama for sumptin’ or anudder if he even dares to issue a single presidential directive. SFW?
Cheers,
August 26, 2010, 1:12 amDw says:
Reminds me of the injunction stopping counting of the ballots in Bush v Gore. IIRC, Bush’s “irreperable injury” was that the legitimacy of his victory might be brought into question!
Regardless of one’s views of the overall merits the final decision in the case, the decision to issue the injunction was an absolute travesty
August 26, 2010, 3:05 amIAdmitIAmCrazy says:
Maybe we need to analyze the reversal of the Court of Appeals.
Could it be that instead of directing the wrath to the District Judge who was after all bound by the remand order we should deal more closely with the D.C. Circuit?
(Sorry, if I get the legalese wrong, I am a complete layman!)
August 26, 2010, 5:56 amIAdmitIAmCrazy says:
Many thanks, Zuch! I am always eager to learn. However I haven’t gotten too far in finding something about this rule – I am neither a US citizen/resident nor a lawyer. Any suggestions?
August 26, 2010, 6:41 amSteve says:
Even in that analogy, which is simply terrible, the plain meaning of the words indicates the opposite interpretation.
August 26, 2010, 7:39 amAndrew says:
I admit that no analogy is good that involves polka dots. But aside from that, what’s the problem?
August 26, 2010, 8:19 amOrenWithAnE says:
Yes, they were very stupid men. All the more reason to believe that the amendment that bears their name works very stupid policy.
August 26, 2010, 9:09 amCMH says:
Nope, and here’s why: The Court of Appeals was addressing the Plaintiffs’ standing to sue, one element of which is whether or not they have suffered an injury-in-fact.
The question on a preliminary injunction is whether the Plaintiffs have demonstrated that they will suffer “irreparable” harm. Just from looking at the terms on their face, “injury” does not equate to “irreparable.”
It’s a very well established principle that harm or injury is not “irreparable” if it can be compensated with an award of monetary damages after the fact. So looking back at the quote you cited, the DC Circuit makes several references to loss of funding, competitive disadvantage in seeking funding. If the injury Plaintiffs are complaining of is defined as impacts on their “funding” then it seems that they can be compensated at the end of the case with money (assuming they win), including interest to account for the delay. So long as that’s the case, an injunction is unwarranted – regardless of whether one agrees with the Court’s interpretation of the statutory language or not.
August 26, 2010, 9:12 amburrow owl says:
This is not really on point, but I think it’s worth mentioning, if only because crazies are teh funny. The plaintiffs in this case had, at an earlier stage of litigation, submitted a motion to have themselves appointed the guardians ad litem of that embryos that may be destroyed in the research process.
August 26, 2010, 9:24 amjf says:
I was once involved in a case involving an injunction for a medical device which was allegedly infringing another medical device; both were in clinical trials at the time. As we pointed out, this was a case in which granting the injunction would do irreparable harm — after all you’d have to cancel trials that were already underway and maybe the infringer’s device worked and the patentholders didn’t. Meanwhile, money damages could clearly compensate the patentholder. Nonetheless, the judge granted the injunction despite the potential for human suffering from the injunction. Never really understood that one.
August 26, 2010, 10:33 amKen Arromdee says:
Separating the research into two parts, one of which obtains the stem cells, and one of which uses them, is an attempt to make an artificial distinction to use as a loophole. It would be like having a law saying that a country can’t spy on its own citizens and getting around that by having another country do the spying and then trading the information to this country.
August 26, 2010, 10:48 amSmooth, like a Rhapsody says:
Maybe the judge decided to do the right thing and wait for the law to catch up.
August 26, 2010, 10:58 ampublic_defender says:
My sympathies are not with the judge, but I think this criticism is unfair. Why did he change his view? Because he was reversed. When an appellate judge reverses a trial judge’s legal determination, the trial judge must accept the reversal and move on from there.
August 26, 2010, 11:19 amRoger says:
Obama’s policy only increased the number of available hESC lines from 21 to 75. Did anyone try to show that there is any public benefit to the Obama policy?
August 26, 2010, 11:22 amCynical says:
“Getting killed” and “being flushed down the drain to die” differ in what practical way?
There are multiple other practical differences.
1. The blastocyst is not a person under the law; it is legal to kill it as well as to allow it to die. The blastocyst is not a person in any other normal sense either; it has no consciousness, no position in society, or other standing not contrived for the purposes of the anti-abortion movement. Using language like “being killed” assumes a falsehood.
2. A stem cell line derived from a blastocyst is not a blastocyst.
Yes, there are plenty of things which can be done with adult human stem cells. This begs the question: we don’t know what makes adult stem cells, and adult cells in general, different from the embryonic stem cells from which they came. The only way we can learn that is to study embryonic stem cells. This study is necessary and proper, QED.
August 26, 2010, 11:46 amJakeD says:
burrow owl seems to be mocking the appointment of guardians ad litem of the embryos, but maybe that wouldn’t have been such a bad idea. Could we all agree that said embryos, if destroyed, suffer “irreparable injury”?
August 26, 2010, 11:49 amJakeD says:
With the exception of “Cynical”, can the rest of us agree that said embryos, if destroyed, suffer “irreparable injury”?
August 26, 2010, 11:53 amOrenWithAnE says:
Even if we accept that, it’s irrelevant since the embryos are not the plaintiffs here. The showing of “irreparable injury” has to be injury to the actual plaintiffs.
Our legal system does not allow parties to sue based on injuries to others.
It’s an open secret that MI6 spies on American citizens and the CIA spies on Brits…
August 26, 2010, 12:15 pmCMH says:
It’s irrelevant whether that’s true or not. Injunctions are warranted when the plaintiffs themselves will suffer irreparable injury absent an injunction. The question isn’t whether irreparable injury will be suffered by either a third person or an item of property (depending on what the status of the said embryos is).
August 26, 2010, 12:18 pmzuch says:
All the more reason to think that they couldn’t write any coherent law.
Cheers,
August 26, 2010, 12:19 pmJakeD says:
Did you see the comment, above, about court-appointed guardians ad litem?
August 26, 2010, 12:21 pmarch1 says:
JAB says:
I had the same question, then noticed that, while criterion (3) (concerning the effects of an injunction) considers impacts to other affected parties, criterion (2) (concerning the effects of the absence of an injunction) does not.
This would appear to render the above observation irrelevant. Is that right (and if so can anyone provide a good rationale for the asymmetry in the criteria)?
August 26, 2010, 12:24 pmMark Horning says:
Having read the statute language, Judge Lamberth’s decision is certainly within the plain meaning of the statute language. And honestly so would the oposite ruling, or some sort of hybrid between the two.
This is of course the fault of Congress for not writing clear and explicit statutes.
August 26, 2010, 12:32 pmzuch says:
It’s described pretty well in the opinion (on pages 9-10) with respect to the Chevron case. Unfortunately for Lamberth (and us all), when he applies the Chevron rule, he just makes facts up (“no other definition of research is supported by the language of the statute”).
Cheers,
August 26, 2010, 12:32 pmzuch says:
I think those plaintiffs got dismissed for lack of standing.
Cheers,
August 26, 2010, 12:35 pmzuch says:
Because it is a multi-part balancing test, there’s always room to find that one factor (say, strong likelihood of success on the merits) outweighs the others.
As to whether there’s injury from medical patents (and restrictions due to such) in the first place, that’s as different question. AFAIK, France prohibits medical [procedure, I think] patents as being against the public interest.
Cheers,
August 26, 2010, 12:38 pmzuch says:
Which is what the U.S. does. See James Bamford’s books.
Cheers,
August 26, 2010, 12:40 pmzuch says:
That means he has to accept standing. It doesn’t mean he has to issue a preliminary injunction for plaintiffs.
FWIW, the appeals court was Rogers-Brown, Kavanaugh, and Ginsburg, AFAIK, hard to find a more RW bunch than that…..
Cheers,
August 26, 2010, 12:44 pmKen Arromdee says:
Yes, I know. I was referring to it under the (perhaps unwarranted) assumption that people who disagree with this decision probably don’t like the surveillance state either and consider the loophole to be illegitimate.
August 26, 2010, 12:47 pmzuch says:
Didn’t say they did. But I agree with you (and the appeals court) that blastocysts don’t have standing. The people that may die are those whose health may depend on medical advances.
Cheers,
August 26, 2010, 12:47 pmzuch says:
They also suffer cognitive deficiencies and legal standing, amongst other things.
Cheers,
August 26, 2010, 12:49 pmJohn says:
First, the researches who are injoined have mimimal harm. They ONLY harm they suffer is to not be able to do this EXACT research. They can do similar research using either ASC or the induced pluripotent cell lines. The plantiffs are working in a mature field and are far more likely to develop cures for diseases and develop them sooner than are the plantiffs. In fact, the third type of stem cells exist almost exclusively because researchers couldn’t get federal funding for hESC. And again, the status quo is often given significant weight in determining whether preliminary injunctions are issued, and the status quo before this executive order prohibited funding of the defendants research projects.
As for those who are confident that the DC court will overturn the judge on this, remember he reached this decision only AFTER they rejected his opinion that the plantiffs didn’t have standing.
August 26, 2010, 12:53 pmJakeD says:
Perhaps Judge Lamberth found that “the public interest weighs in favor of a preliminary injunction” precisely because of that deficiency in the current law?
August 26, 2010, 12:55 pmzuch says:
FIFY. “[P]lain meaning” would seem to infer just a single, unambiguous possible result.
But, as noted by the opinion, pp. 9-10, Chevron says that when there is ambiguity or multiple possible interpretations, the court must bow to the administration’s interpretation if it is an “permissible construction of the statute” (which you just said is true).
Cheers,
August 26, 2010, 12:56 pmzuch says:
“Judicial activism! Judicial activism!!!”
Cheers,
August 26, 2010, 12:59 pmJakeD says:
zuch:
I don’t mind judicial activism if that’s what it takes to save innocent human life. Terri Schiavo suffered cognitive deficiencies and legal standing, amongst other things, too. I supported ALL legislative, executive, and judicial activism to save her life too.
August 26, 2010, 1:10 pmOrenWithAnE says:
I would clearly categorize Doug Ginsburg as a moderate-conservative to Janice Brown’s no-modifier-conservative.
FIFY.
August 26, 2010, 1:32 pmSarcastro says:
Yeah, I dunno when JakeD got so liberal, but first you endorse judicial activism to save a life, and then it’s dignity and suddenly you’re Justice Marshall.
August 26, 2010, 1:37 pmJakeD says:
No, that’s not “fixed” as UNDER CURRENT LAW, she was not a corpse until after she was starved to death. There are also cases where unborn children are treated as “people” (for instance, Scott Petersen was convicted of MULTIPLE murders in California).
August 26, 2010, 1:38 pmJakeD says:
Very funny, Sarcastro (NOT!)
August 26, 2010, 1:41 pmADF Alliance Alert » Russell Korobkin: Stem cell shock #2: The preliminary injunction says:
[...] Korobkin writing at The Volokh Conspiracy: “In a [post yesterday], I described why I think Judge Royce Lamberth’s decision on Monday [...]
August 26, 2010, 2:20 pmL says:
Scott Peterson wasn’t convicted of two counts of murder because a fetus is a person. Peterson was convicted of two counts of murder because the California Penal Code defines murder as “the unlawful killing of a human being, or a fetus, with malice aforethought.” Two separate and distinct categories: human being, and fetus.
In other words, he was convicted of murdering Laci because she was a human being, and he was convicted of murdering Conner because he was a fetus.
August 26, 2010, 2:23 pmMark Horning says:
Only if the court finds the wording ambiguous. This is different from me saying that the wording is such that different people could interperate it to support either side.
The fact that the congress cannot appear to write clear and explicit statutes on the other hand, surprizes nobody.
August 26, 2010, 2:26 pmJohn says:
The claims that research using embryonic stem cells doesn’t result in the destruction of embryoes ignores one important fact. You can’t get ESC lines WITHOUT destroying embryoes and there are no uses other than research for embryonic stem cells. Contracting out the destruction of the embryo to a third party doesn’t remove the destruction of the embryoe from the research, and saying it does means that NO restrictions on funding can ever stand because all you would have to do do ignore the restriction is to contract out the offending actions to a third party.
August 26, 2010, 2:27 pmJAB says:
I’m pretty sure Russell inaccurately cites the criteria. It’s a balance of harms analysis.
The best way to understand how it works is that it’s:
Likelihood of plaintiff winning (A) * irreparable Harm to (plaintiff & public) from injunctive error against him (B)
versus
Likelihood of defendant winning (C) * irreparable Harm to (defendant & public) from injunctive error against him (D)
Russell concludes the court is wrong by disagreeing on A/C and grossly undercounting B compared to D (they should be essentially equal). I’m pretty sure his analysis is deeply flawed. Or else I mislearned Civ Pro.
August 26, 2010, 3:08 pmloki13 says:
Sometimes humor hits a little too close to home, n’est-ce pas?
As has pointed out too many times, and as I’m sure is obvious to all, is judicial activism is awful (just awful!) when it reaches a result a that you don’t like. But it’s just ducky (quack quack) when you think the result is justified. Which means that you support the rule of law when the law favors your a priori policy choices (judges should be constrained to follow my beliefs!) and they should use empathy or judicial activism when it’s, um, really, really important to you, and there should be no constraints. The only guiding principle, of course, is that *you* should be judge deciding the cases. Because, really, who else knows when the right time is to break free from the fetters of the law are to reach the “right” result?
August 26, 2010, 3:27 pmAnthony says:
Medical use of an embryo doesn’t actually change the outcome for that embryo — those used for medical purposes would be slated for destruction anyway, since the usual source for embryos is surplus from fertility treatments. If you want embryos to not be destroyed, make IVF treatment illegal.
August 26, 2010, 3:36 pmJAB says:
People accusing opponents of judicial “activism” of hypocrisy here are a little confused, I think. Usually, the term’s used about judges who are making a decision of constitutional interpretation that trumps legislative action. (That can be good or bad, but that’s generally the sense in which people use the word.)
Here, the court is making a decision that a congressional law precludes an administrative agency action. That might be activist in some sense, but it’s surely distinguishable as a less clearly anti-democratic behavior than striking down laws as unconstitutional.
August 26, 2010, 3:53 pmAnthony says:
Why? In any case, where were the anti-judicial-activism people protesting Heller vs DC?
August 26, 2010, 4:17 pmpublic_defender says:
The appeals court may be “RW,” but they are the appeals court, and the district court is the subordinate court. You are right that standing does not resolve the preliminary injunction decision, but I was responding to someone who claimed that it was somehow wrong for the trial judge to have found no standing (because of lack of injury) but then granted a preliminary injunction. That criticism was unfair because a judge is supposed to change his opinion on any point he is reversed on. Maybe the appeals court was wrong, but that’s another question.
As Korobkin has demonstrated, there are plenty of fair criticisms of this decision. But it is possible to make incorrect criticisms of an incorrect decision.
August 26, 2010, 4:24 pmJAB says:
Anthony,
I explained why. And plenty of judicial minimalists criticized Heller; doesn’t sound like you were paying much attention then or now…
August 26, 2010, 4:27 pmJAB says:
Anthony:
To be clearer: a decision that a law is unconstitutional can only be overturned legislatively through a politically impossible constitutional constitutional amendment. A decision that agency action is not permitted by congressional legislation can be overturned by congressional action.
Moreover (though less significantly), agency heads tend to be less democratically accountable than members of congress. So strictly enforcing congressional limits on agencies is likely to be less anti-democratic, on the whole, than strong deference to agencies.
August 26, 2010, 4:35 pmZack says:
According to the Cambridge online dictionary:
So, how exactly is it different?
August 26, 2010, 5:29 pmarch1 says:
JAB,
Thanks for the pithy summary of (your understanding of) preliminary injunction criteria as a symmetrical balance-of-harms analysis. That seems very different from (and, I can’t resist opining, more sensible than) my reading of Russell’s criteria 1)-4), which are neither symmetrical nor balancing. I hope that Russell or others weigh in to help resolve this apparent discrepancy.
Assuming that your summary of the criteria is essentially correct, I agree that Russell undercounted B relative to D.
I don’t see where he disagreed with the court on A/C, however, and in any case Russell doesn’t appear to be basing his conclusion on that. E.g. in his concluding paragraph: “Regardless of who is right on the merits, the preliminary injunction should not have been granted.”
August 26, 2010, 5:56 pmloki13 says:
People accusing opponents of judicial “activism” of hypocrisy here are a little confused, I think. Usually, the term’s used about judges who are making a decision of constitutional interpretation that trumps legislative action. (That can be good or bad, but that’s generally the sense in which people use the word.)
JAB,
I do not doubt the good faith in your assertion. However, I believe that it is just a variation of the old, “When judges do things I don’t like, it’s judicial activism, when they do things I like, it’s not.”
What you’re referring to is something different entirely. You are referring to how “correctable” the decision is. It is inarguable that a ruling about the Constitution is almost infinitely harder to “overrule” than a ruling dealing with a mere law (or agency action). Amazingly enough, there’s a good deal of jurisprudence on this. ;) It’s also true that a court will keep a “bad” interpretation of a law in place (because Congress can change it if it so deems, but cf. Dr. Miles) more easily than a “bad” constitutional decision (because those are almost only ever changed by jurisprudence, but cf. reliance interests and Scalia concurrence in WRTL generally).
This, however, has little to do with the common perception of “judicial activism.” When the term is employed, it is used (when it is used with any thought) to mean that the judge has gone “beyond the law” to rule according to his or her own preferences. It doesn’t matter so much what the subject matter is; if a case was barred by a SOL, and the judge disregarded that because he felt that he case “just needed to be heard,” then most would be comfortable labeling that judicial activism. If a judge disobeyed a clear statute that said there was no privity in a certain relationship, and instead ruled there was privity to make it fair, that would be judicial activism. If a judge pierced the veil of BP and held the stockholders personally liable for damages caused by BP because he wanted to sock it to big oil, that would be judicial activism.
IOW, if you constrain your analysis of “judicial activism” to only cases you think are decided wrongly, the term loses meaning. If you define it to a subset of cases, then you have to ask what makes a judge “activist” about the Constitution, and merely “wrong” or “lawless” when it comes to other cases. Here’s a hint- if you are a partisan of one political side, and you think the other side is one doin’ all the judicial activism, you might want to re-evaluate your belief.
August 26, 2010, 5:58 pmJAB says:
Of course some people are more or less consistent in their use of the term. But careful/thoughtful people, I think, tend to use it in the sense in which I said, whether it is for or against their personal political positions. (Many of us pro-life people, for example, think Roe v. Wade is judicial overreach, but also think that an opinion declaring fetuses protected by the 14th amendment would be judicial overreach, because the meaning of “person” was fixed in the 19th century, and fetuses did not fall within its meaning at that time.)
It’s accurate to characterize it as “judicial activism” when a judge goes “beyond the law” to do something, of course. But as you say, that will turn almost entirely upon whether one agrees with the legal conclusion. It’s a less useful use of the term. But in any case, one could be not inconsistent even under this definition while believing that this decision doesn’t constitute judicial activism, but other decisions do.
August 26, 2010, 6:37 pmNick Patterson says:
I don’t wish to comment on the stem-cell decision as such, but the idea that a scientist has standing to sue, because some other
scientist got a NIH grant that they might have got, is borderline insane. If this stands this means that any
scientist whose grant application is rejected can sue the NIH. This is so silly that this part of the decision has no chance
of becoming settled procedure. Ot at least one hopes so.
Nick Patterson,
August 26, 2010, 6:59 pmloki13 says:
JAB,
But the problem with I see with your analysis is the following:
1. Labeling decisions a “more” or “less” (or a binary yes or no) activist based simply on the area of law or interpretation from which they spring seems like an artificial distinction; iow, you might want to investigate why you have made that distinction. Your basis that it is simply due to the “correctability” of the decision seems hollow; would a Supreme Court decision involving the inherent powers of the Federal Courts, or a conflict of law analysis, be just as “activist”? Is it based on “correctability” or do you save “activism” for constitutional decisions? If so, ask yourself the following question- do you feel that at some point the Court made a bunch of decisions you consider “wrong” or “activist” in the area of the Constitution? Do you feel the same way about other issues from the other side (I take it from your post you are a conservative; do you feel that the court was activist wrt. the 11th. Am, constitutionalization of standing, Bivens/(whether the Constitution is self-executing), 10th Am., weakening of basic procedural due process etc. etc. etc.)? Or do you believe it’s been somewhat one-sided?
2. Your analysis presumes a “correct” answer to constitutional questions. It’s funny, on many “activist” decisions, you often have many brilliant people (trial court judge, appeal panel, en banc panel, and SCOTUS) wrestle with the issue, and very bright people disagree. Some cases are hard. Heck, I remember struggling with Gasperini my first year, and I finally thought Scalia was right. It was the easy-to-follow opinion. It wasn’t until I had immersed my self in Conflict of Laws that I actually *understood* Ginsburg. But this presumes that Erie is correct, which presumes that it is okay to shift from the belief that the law arises from the soil around us and the common law is one unified law that all judges everywhere are trying to divine from the ether and work toward to, well, our more nuanced view. But there’s a *huge* difference between saying a decision is one you disagree with, and saying that it is unprincipled (or activist).
But to say with certainty that you “know” the right answer to a difficult constitutional questions smacks of epistemological hubris. To even say, if you are an originalist, that you *know* the original expected application of how the Constitution was to be interpreted is extreme arrogance.
So I am confortable labeling easy questions as “right” or “wrong” (like the SOL). Other question, well, I have my view, and others can disagree.
August 26, 2010, 7:12 pmJAB says:
Loki13,
Not an artificial distinction. Easier correctability = lower error costs. This is the chief rationale of most judicial minimalists.
Under this definition, the court has at different times been “activist” in different directions; the Warren court far to the left, the Lochner court to the right. I don’t have a sense of in which direction it’s been more activist on the whole (although I probably have the sense that the current net gain over the last 150 years is probably still with the Warren court).
Re your paragraph 2, you make it sound as if I disagree with you, but I don’t, and haven’t said anything to the contrary. The difficulty of identifying the correct answer (I think there is a correct answer, but I have a low degree of certainty that I’ve identified it in any given case) is why I think the definition of “activist” critics-of-critics-of “activism” seem to be employing is so useless. It’s useful only to the degree that the question is easy. (For example, most people would agree that Roe was obviously judicial activism in that sense, because it was obviously bad legal reasoning by nearly everyone’s standards–fairly easy. But there would be a lot more disagreement about whether Seminole Tribe or Citizens United or Heller or Lawrence were judicial activism in that sense, because the correctness of those decisions are much more difficult questions–the decision and dissent were both extremely compelling.)
August 26, 2010, 7:40 pmArthur Kirkland says:
Sure, just as good beers and excellent sandwiches, when consumed, suffer “irreparable injury.” Should we we appoint counsel for them, too?
(If the answer is yes — and in a country in which candidates endorsed by Sarah Palin get elected, not much can be safely dismissed — I call dibs on the beers.)
August 26, 2010, 7:48 pmArthur Kirkland says:
The plaintiffs’ apparent distaste for competition suggests they disagree.
August 26, 2010, 7:53 pmArthur Kirkland says:
I gather you would have supported an injunction to prevent the invasion — and, later, to discontinue the botched invasion — of Iraq?
August 26, 2010, 7:55 pmzuch says:
Huh? How so? If different (reasonable) people can interpret it differently, how can it not be ambiguous? I mean, other than on the ipse dixit of an activist extreme RW judge….
Cheers,
August 26, 2010, 8:46 pmzuch says:
Do you know this for a fact?… Cites, please.
Nonsense. People like Elmer Fudd can wall-paper his woom with them. Or something.
But who cares?
Cheers,
August 26, 2010, 8:50 pmzuch says:
Who’s “contracting out” the hESC cell line establishment? And if they are, and doing it with grant money (or we take the tack that money is fungible), that’s a violation of D-W. But they aren’t. So it’s not.
Cheers,
August 26, 2010, 8:53 pmzuch says:
“Judicial activism” is the complaint against judges writing “new law” as well as their striking down laws duly written by legislatures. It sweeps both positive and negative usurpations of legislative prerogative under its ambit.
Cheers,
August 26, 2010, 8:58 pmzuch says:
That’s one meaning of “ambiguous”. Others are: “clear as dishwater, cryptic, doubtful, dubious, enigmatic, enigmatical, equivocal, inconclusive, indefinite, indeterminate, inexplicit, muddy, multivocal, obscure, opaque, polysemous, puzzling, questionable, tenebrous, uncertain, unclear, unintelligible, vague”….
Not sure which one Mark Horning had in mind here.
;-)
Cheers,
August 26, 2010, 9:05 pmzuch says:
But such is often the complaint in reverse discrimination cases. The U. Texas Law School case (Hopwood, IIRC), for instance, was brought by people who would not obviously have gotten in but for the affirmative action admissions. All they said was that their scores were better than those of candidates who got in; not that if those candidates had been dropped, they would have been chosen rather than someone else with even better scores than theirs….
Cheers,
August 26, 2010, 9:11 pmll says:
zuch says:
Not so fast studmuffin. The premise of the conclusion is that the only stem cells that are available are embryonic stem cells from embryos, therefore if those cells are not available to researchers disease sufferers will die because there are no other stem cells available for research.
That is reasoning from a false premise, which is: the only “embryonic” pluripotent stems cells there are are from embryos.
“clearly”–a sign that one is promulgating his own opinion without regard to any facts.
“Embryonic” type pluripotent stems have been and are being made from adult stem cells, and even from adult nonstem cells. Disease sufferers are, therefore, not in any greater danger by prohibiting the use of embryonic stem cells from embryos.
August 27, 2010, 12:07 amMac says:
Interesting discussion. I think Obama would be disappointed with the arrogance displayed here that disease sufferers will die if American researchers are not granted the money for this particular research.
Embryonic stem cell research is being conducted in many other countries. Surely, if disease sufferers are to be cured, other countries can do the job and the world will not, by definition, suffer because Americans are not also doing the research, one would think, unless we believe if we are not doing it, it can’t get done.
In addition, to my knowledge, even with all these other countries doing the research, there have been no breakthroughs and private money for this type of research has dried up as investors and companies who do this sort of thing are not interested in pursuing and paying for research that shows so little promise. Adult stem cells, on the other hand, are offering some very exciting results and show a lot of potential.
Only Governments, ours in this case for blatant political reasons regarding abortion, would want to fund something that is not showing any promise of cures for anything and would divert funds from more promising research to do so. So, in a sense, funding this very unpromising research could cause more disease sufferers to die because of the diversion of money and effort into this area and away from others.
As to the statement that they are only using embryos already slated for destruction, that is misleading. The issue is what happens when embryos are created for the express purpose of being destroyed? That complicates things for anyone who thinks at least.
Do we then create embryos to grow to a fetus, abort it and then harvest the parts, for example? What about clones for adults?
Science is moving pretty fast. There are serious ethical issues to be discussed and for our society to decide whether or not we want to take that road. Images of the Nazi’s and their medical experiments are not without merit in this issue and I don’t think we really want to emulate them. These issues need to be carefully studied, I think.
Just because we can do something, does not, by definition mean we should do it.
August 27, 2010, 1:08 amzuch says:
Yes, so fast. You’re changing the subject … you know, moving the goalposts. The question (and the only question) was whether losing one’s life is worse than losing a grant. You might cavil that it’s just a chance of losing one’s life. Nonetheless, still far worse than — maybe — losing a grant. Losing money is remediable. Dying is not. People tend to take that into account.
Cheers,
August 27, 2010, 1:27 amzuch says:
… but … but … but … “We’re Number One! We’re Number One!!!”
Is ‘Merkun Exceptionalism really in such dismal decline?
Cheers,
August 27, 2010, 10:59 amzuch says:
The NIH Guidelines that Lamberth ruled against (enjoined) prohibited funding of research using such. You happy now?
Cheers,
August 27, 2010, 11:01 amloki13 says:
JAB,
I appreciate the civil conversation. Ii is my view that the term “judicial activism” is a nearly (or completely) meaningless term. I appreciate your attempt to cabin it, however, I think your attempt is in vain from my point of view. I only have a second to make this post, but let me point out the following:
1. If you view is that it comes down to “correctability” (or to accountabilty) then you have the following problems. First, most decisions of a constitutional nature are not made by SCOTUS, but, rather, by district court judges and appellate panels (not including SCOTUS). Since these are all reviewable, then any constitutional decision handed down by them is not, by your definition, judicial activism. The recent prop 8 case would not be an example of judicial activism unless and until it is ratified by SCOTUS (as it is “correctable” until then). Which would seem odd. This also means that state courts, which can rule on constitutional questions, could never be judicially activist, which would surprise some who sling the term around.
2. You say that the decisions are not correctable (I assume meaning accountable as well as correctable) because of the difficulty of the amendment process. This brings up two related issues: as the process of passing bills becomes more difficult (see the near required use of the filibuster), does that mean more cases fall under the rubric of judicial activism? Second, since Congress has other ways to change the powers of the Court (both through jurisdiction, impeachment, and through increasing the membership of the Court) where does this factor in? Just because it has been our tradition not to do so does not mean it cannot be done, an through those methods, as well as amendment, any decision that was too far out of the mainstream would be repudiated (even controversial decisions have a great deal of popular support).
3. Despite your balanced assessment, the end result is that your attempt to define judicial activism is that you define it as a subset of cases (involving the Constitution) where you disagree with the result. While there is a certain larger question out there (what is the “truth” of the Constitution) it only matters that you are making a normative assessment. I can make descriptive assessments (the ruling extends, modifies, overrules or complies with precedent) but to say that it was “right” or “wrong” necessarily involves my normative view. Which is great! But it is different than using the term judicial activism. As for Roe v. Wade, while some of the reasoning might seem incorrect (including the trimester system) I think that if you try to understand their reasoning (balancing of governmental interest vs. woman’s right, as a sliding scale as time progresses) it will not seem as poorly reasoned. Unpersuasive, perhaps. But not completely stupid.
August 27, 2010, 12:06 pmBest of the Blogs : Marquette University Law School Faculty Blog says:
[...] Russell Korobkin examined Sherley v. Sebelius, the stunning stem cell research decision by Judge Royce Lamberth, in two posts this week, looking first at Judge Lamberth’s interpretation of the Dickey-Wicker Amendment, then at the dubious wisdom of granting the preliminary injunction. [...]
August 29, 2010, 1:57 am