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More On The 9th Circuit


I’ll be on Fox News’ “Big Story Weekend” this Sunday at 10 pm to discuss the Ninth Circuit’s sex-survey-for-seven-year-olds case. I generally agree with Andy’s conclusion yesterday that the court was right in not finding a new or modified Substantive Due Process right in the Constitution for parents to control material to which their children are exposed at school (indeed, this properly limited understanding of Substantive Due Process is why I respectfully disagreed with Andy’s appeal to Substantive Due Process as a ground for relief in the Schiavo case). The problem with Judge Reinhardt’s opinion is that it quite simply does not comport with his own Substantive Due Process jurisprudence. This is a judge who has found a Substantive Due Process right to commit suicide and for prisoners to ship semen (with the facilitation of prison officials) to their girlfriends so that they can procreate while behind bars. Yet somehow when he is confronted with a case that seeks to extend in a far more modest way some of the earliest Substantive Due Process cases—cases which recognized a right to send your child to private school and preventing the state from dictating private school curricula—he finds religion. Again, I think that he reaches the right decision based on the law, but I also think that he is disingenuous when he states that the court makes this decision based on law rather than policy preferences. Based on the rank inconsistency in Judge Reinhardt’s Substantive Due Process jurisprudence, the only reasonable conclusion is that his decision was predicated specifically on his liberal policy preferences.


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