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NRO’s home for judicial news and analysis.

This Week in Liberal Judicial Activism—Week of August 20



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Aug. 23     2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Week for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.  Just as the supposed legal ethicists on the Left recklessly fling flimsy ethics charges against judicial conservatives, they race to dismiss more substantial charges against liberal judicial activists.

Consider, for example, law professor Stephen Gillers’s breezy assertion that “the fact that [Judge Taylor] sits on the board of a group that gives money to the plaintiff for an otherwise unrelated endeavor would not in my mind raise reasonable questions about her partiality on the issue of warrantless wiretapping.”  This is the same Gillers who, in the midst of Chief Justice Roberts’s confirmation process, offered the badly flawed opinion that Roberts, as a D.C. Circuit judge, should have recused himself from the Hamdan case because “the public can never know” how the prospect of a Supreme Court nomination might have affected his thinking.  The same Gillers who recklessly opined that Justice Scalia’s participation in a legal seminar sponsored by a group that does not litigate raised serious ethical concerns.  The same Gillers who, in advice that other ethics gurus questioned, advised Justice Breyer that Breyer could take part in a case presenting the question whether the sentencing guidelines are constitutional, notwithstanding Breyer’s own extensive involvement in creating the guidelines.  Anyone notice a pattern?

 

Aug. 24     1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA.  Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision.  Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning.  In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

For an explanation of this recurring feature, see here.


Tags: This Day in Liberal Activism


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