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This Day in Liberal Judicial Activism—October 1



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2008—The Supreme Court denies the state of Louisiana’s petition for rehearing in Kennedy v. Louisiana, the case in which the Court held, by a 5-4 vote, that imposition of the death penalty for the crime of raping a child violates the Eighth Amendment. The basis for the state’s petition for rehearing was the Court’s failure, in discerning a supposed “national consensus against capital punishment for the crime of child rape,” to take account of a federal law enacted in 2006 that authorized military courts to impose the death penalty for child rape. The Court had instead mistakenly stated that federal law does not authorize the death penalty for child rape.

Chief Justice Roberts and Justice Scalia—both dissenters from the original ruling—vote against rehearing on the ground that the majority was just making it up all along anyway.  As Scalia puts it, in an opinion that Roberts joins:

I am voting against the petition for rehearing because the views of the American people on the death penalty for child rape were, to tell the truth, irrelevant to the majority’s decision in this case. The majority opinion, after an unpersuasive attempt to show that a consensus against the penalty existed, in the end came down to this: “[T]he Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” Of course the Constitution contemplates no such thing; the proposed Eighth Amendment would have been laughed to scorn if it had read “no criminal penalty shall be imposed which the Supreme Court deems unacceptable.” But that is what the majority opinion said, and there is no reason to believe that absence of a national consensus would provoke second thoughts.

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This Day in Liberal Judicial Activism—September 29



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1958—In a joint opinion of all nine justices in Cooper v. Aaron, the Supreme Court for the first time asserts the myth of judicial supremacy.  The case concerns an application by Little Rock, Arkansas, school authorities to suspend for 2-1/2 years the operation of the school board’s court-approved desegregation program.  After stating that “[w]hat has been said, in light of the facts developed, is enough to dispose of this case” (by denying the school board’s application), the Supreme Court nonetheless proceeds to purport to “recall some basic constitutional propositions which are settled doctrine.”  Among these supposedly basic propositions are the false assertions that the Court’s 1803 ruling in Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and that “that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.”

Properly understood, Marbury stands at most for the limited proposition that the courts, in exercising their judicial function, may review the constitutionality of statutes that they are asked to apply.  As leading liberal scholar Laurence Tribe has acknowledged, Marbury in no way establishes that the federal judiciary in general—or the Supreme Court in particular—is supreme over the President and Congress in determining what the Constitution means:  “presidents have never taken so wholly juricentric … a view of the constitutional universe—a view that certainly isn’t implied by the power of judicial review as recognized in Marbury v. Madison.”  Contrast Cooper’s brazen dictum with these words from Abraham Lincoln’s First Inaugural Address:

“[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”

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This Day in Liberal Judicial Activism—September 26



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2006—At the Senate Judiciary Committee hearing on the nomination of Michael B. Wallace to the Fifth Circuit, Roberta Liebenberg, chair of the ABA’s judicial-evaluations committee, commits multiple acts of flat-out perjury in defending her committee’s “not qualified” rating of Wallace—a rating that resulted from a scandalous process marked by bias, a glaring conflict of interest, incompetence, a stacked committee, the ABA’s violation of its own procedures, and cheap gamesmanship.  (See here for documentation.)

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This Day in Liberal Judicial Activism—September 24



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1992—By a vote of 4 to 3, the Kentucky supreme court rules (in Commonwealth v. Wasson) that Kentucky’s statutory prohibition of homosexual sodomy, dating from 1860, violates a right of privacy and a guarantee of equal treatment implicit in Kentucky’s 1891 constitution.  In the words of one of the dissenting justices:

“The issue here is not whether private homosexual conduct should be allowed or prohibited. The only question properly before this Court is whether the Constitution of Kentucky denies the legislative branch a right to prohibit such conduct. Nothing in the majority opinion demonstrates such a limitation on legislative prerogative.…

“Perhaps the greatest mischief to be found in the majority opinion is in its discovery of a constitutional right which lacks any textual support.…  When judges free themselves of constitutional text, their values and notions of morality are given free rein and they, not the Constitution, become the supreme law.”

1993—President Clinton nominates This Day Hall-of-Famer Rosemary Barkett, chief justice of the Florida supreme court, to the U.S. Court of Appeals for the Eleventh Circuit.  

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This Day in Liberal Judicial Activism—September 22



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2005—Explaining his decision to vote against the confirmation of John Roberts as Chief Justice, then-Senator Barack Obama concocts his lawless “empathy” standard for judges, as he contends that judicial decisions in “truly difficult” cases require resort to “one’s deepest values, one’s core concerns, one’s broader perspectives on how the world works, and the depth and breadth of one’s empathy.…  [I]n those difficult cases, the critical ingredient is supplied by what is in the judge’s heart.”

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This Day in Liberal Judicial Activism—September 19



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1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton.  A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench.  As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering.  Here are a couple examples of Mikva’s creative opinions: 

In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless.  In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights.  A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.”  On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.

In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct.  In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.”  One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).

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This Day in Liberal Judicial Activism—September 17



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A mixed day for the Constitution:

1787—The Constitutional Convention unanimously resolves that “the preceeding Constitution be laid before the United States in Congress assembled, and that it is the Opinion of this Convention, that it should afterwards be submitted to a Convention of Delegates, chosen in each State by the People thereof, under the Recommendation of its Legislature, for their Assent and Ratification.…”

1939—David Hackett Souter is born in Melrose, Massachusetts.  In a tragic blunder, President George H.W. Bush appoints Souter to the Supreme Court in 1990.  As a justice, Souter misread into the Constitution the Left’s agenda on a broad range of issues—for example, abortion (including partial-birth abortion), homosexual conduct (including a virtual declaration of a constitutional right to same-sex marriage), and imposition of secularism as the national creed.  

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This Day in Liberal Judicial Activism—September 12



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2005—Supreme Court nominee John G. Roberts Jr. stoically endures the endless opening statements of Senate Judiciary Committee members as his confirmation hearing begins.  Roberts manages to keep a straight face throughout, including when hard-left Senator Charles Schumer, who (along with Teddy Kennedy and Dick Durbin) voted against Roberts in committee on his D.C. Circuit nomination, tells Roberts what he must do to win Schumer’s vote and presents himself as arbiter of the legal “mainstream.”

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This Day in Liberal Judicial Activism—September 9



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1993—Missouri 17-year-old Christopher Simmons plans a brutal murder and assures his friends that they can “get away with it” because they are minors.  In the middle of the night, Simmons and a friend break into the home of Shirley Crook, awaken her, cover her eyes and mouth with duct tape, bind her hands, put her in her minivan, drive to a state park, walk her to a railroad trestle spanning the Meramec river, tie her hands and feet together with electrical wire, wrap her whole face in duct tape, and throw her from the bridge.  Exactly as Simmons plans, Mrs. Crook drowns an unspeakably cruel death in the waters below.

Simmons confesses to the murder.  At the death-penalty phase of his trial, the judge instructs the jurors that they can consider Simmons’s age as a mitigating factor, and the defense relies heavily on that factor.  The jury recommends, and the trial judge imposes, the death penalty.

A dozen years after Simmons’s summary execution of Mrs. Crook, the Supreme Court, by a vote of 5 to 4, relies on “international opinion” to overturn its own precedent and to rule (in Roper v. Simmons) that execution of offenders who were 17 at the time of their offense violates the Eighth Amendment.  (See This Day for Mar. 1.)  In dissent, Justice Scalia observes that the majority’s “startling conclusion” that “juries cannot be trusted with the delicate task of weighing a defendant’s youth along with the other mitigating and aggravating factors of his crime … undermines the very foundations of our capital sentencing system, which entrusts juries with ‘mak[ing] the difficult and uniquely human judgments that defy codification and that ‘buil[d] discretion, equity, and flexibility into a legal system.’”   

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This Day in Liberal Judicial Activism—September 7



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2000—Nearly two years after Florida voters vote, 73% to 27%, to amend the state constitution to require that Florida’s ban on “cruel or unusual punishment” comport with U.S. Supreme Court decisions construing the Eighth Amendment, the Florida supreme court (in Armstrong v. Harris) rules, by a 4-to-3 vote, that the ballot title and summary for the amendment were defective and that the amendment is therefore invalid.  Using mixed metaphors in lieu of reasoning, the majority opinion asserts that the amendment was “flying under false colors” and “hiding the ball”.  You see, a portion of the ballot title (“United States Supreme Court interpretation of cruel and unusual punishment”) and a sentence in the summary (“Requires construction of the prohibition against cruel and/or unusual punishment to conform to United States Supreme Court interpretation of the Eighth Amendment”) “imply that the amendment will promote the rights of Florida citizens through the rulings of the United States Supreme Court”, but the amendment “effectively strikes the state Clause from the constitutional scheme.”  (Huh??  The ballot title and summary provide a far more accurate description of the amendment than the majority does.)  And, the majority continues, the ballot summary supposedly failed to “mention[]—or even hint[] at” the fact that the amendment would apply to “all criminal punishments, not just the death penalty.”  (Gee, isn’t that exactly what the general language of the summary sentence quoted above means?)

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This Day in Liberal Judicial Activism—September 5



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2001—In what the dissenting judge describes as “a seminal case in more ways than one,” a divided panel of the Ninth Circuit—with, surprise!, Judge Stephen Reinhardt in the majority—rules that a prisoner serving a life term has a federal constitutional right to procreate that encompasses (absent the prison’s showing countervailing penological interests) the right to mail his semen from prison so that his wife can be artificially inseminated.  An en banc panel of the Ninth Circuit later reverses that ruling by a 6-5 vote.  

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This Day in Liberal Judicial Activism—September 4



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1992—Recognizing that “only exceptional circumstances amounting to a judicial usurpation of power will justify the invocation of [the] extraordinary remedy” of a writ of mandamus, the Third Circuit finds in Haines v. Liggett that New Jersey federal district judge (and This Day all-star) H. Lee Sarokin has created such exceptional circumstances.  Ruling on a pre-trial discovery motion in a personal injury action against cigarette manufacturers, Sarokin had declared that “the tobacco industry may be the king of concealment and disinformation” and had charged that its members “knowingly and secretly decide to put the buying public at risk solely for the purpose of making profits and … believe that illness and death of consumers is an appropriate cost of their own prosperity!”  (Exclamation point in original.)  Relying on his “own familiarity with the evidence” adduced in a different case, Sarokin had ruled that the crime-fraud exception to the attorney-client privilege applied and ordered the requested documents produced.  Undermining defendants’ opportunity to appeal his ruling, he had quoted extensively from the very documents as to which privilege had been asserted.

The Third Circuit, in an opinion by LBJ appointee Ruggero Aldisert, not only vacates Sarokin’s discovery order but also takes the extraordinary step of removing Sarokin from the case.  The Third Circuit lambastes Sarokin for violating “fundamental concepts of due process,” for divulging the contents of assertedly privileged documents before avenues of appeal had been exhausted (“We should not again encounter a casualty of this sort”), and for destroying any appearance of impartiality. 

When President Clinton nominates Sarokin to the Third Circuit in 1994, Senator Patrick Leahy displays his usual denial of reality as he lauds Sarokin as “a judge of proven competence, temperament, and fairness” and “an excellent choice.”

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This Day in Liberal Judicial Activism—September 2



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2003—In Summerlin v. Stewart, the Ninth Circuit addresses whether the Supreme Court’s decision in Ring v. Arizona, which held that aggravating factors under Arizona’s death-penalty law need to be proved to a jury rather than to a judge, applies retroactively to cases already final on direct review.  The limited en banc panel of eleven judges (a creature unique to the Ninth Circuit), consisting in this case of ten Carter/Clinton appointees and one Reagan appointee, divides 8 to 3 in favor of a ruling that Ring applies retroactively.  In her dissent, Judge Rawlinson observes that the majority “wanders afield”—and contradicts a very recent Supreme Court precedent as well as rulings from other circuits—in holding that Ring announced a substantive rule.  She also disputes the majority’s alternative holding that Ring announced a watershed rule of criminal procedure.

On review, the Supreme Court (in Schriro v. Summerlin) reverses the Ninth Circuit.  Not a single justice expresses agreement with the Ninth Circuit’s holding that Ring announced a substantive rule, and Justice Scalia’s opinion takes four brief paragraphs to dispense with the “remarkable” analysis that covered 20 pages of the Ninth Circuit’s ruling.  By a vote of 5 to 4, the Court rules that Ring did not announce a watershed rule of criminal procedure.  

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This Day in Liberal Judicial Activism—August 30



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1971—By a vote of 6 to 1, the California supreme court rules in Serrano v. Priest that California’s “public school financing system, with its substantial dependence on local property taxes and resultant wide disparities in school revenue, violates the equal protection clause of the Fourteenth Amendment.”  Specifically, “the right to an education in our public schools is a fundamental interest which cannot be conditioned on wealth,” and the state financing system “invidiously discriminates against the poor because it makes the quality of a child’s education a function of the wealth of his parents and neighbors.” 

Two years later (in San Antonio Independent School District v. Rodriguez), the U.S. Supreme Court, by a vote of 5 to 4, rejects Serrano’s analysis, as it  rules that Texas’s similar system of financing public school education does not violate equal-protection guarantees.  Citing Serrano, Justice Powell’s majority opinion adds this prescient “cautionary postscript”:

“[T]here is nothing simple or certain about predicting the consequences of massive change in the financing and control of public education.… The complexity of these problems is demonstrated by the lack of consensus with respect to whether it may be said with any assurance that the poor, the racial minorities, or the children in overburdened core-city school districts would be benefited by abrogation of traditional modes of financing education.…   Additionally, several research projects have concluded that any financing alternative designed to achieve a greater equality of expenditures is likely to lead to higher taxation and lower educational expenditures in the major urban centers, a result that would exacerbate rather than ameliorate existing conditions in those areas.”

Ah, the unintended consequences of liberal judicial activism:  According to experts, the Serrano decision “overlooked the fact that 75% of poor children lived in high spending districts,” and it thus “actually led to lower school spending for most poor children” and to “equalized mediocrity.”  Further, Serrano and its follow-on rulings are credited with triggering the property-tax revolt that culminated in California’s Proposition 13—“After all, the logic goes, if increased property taxes don’t help our schools, why should we be for increased property taxes”—and helped lead to Ronald Reagan’s election as president in 1980.   

2006—In a front-page story in the New York Times, Supreme Court reporter Linda Greenhouse reports a “sudden drop” in the number of female law clerks for the first full year of the Roberts Court.  Justice Souter, who has no female clerks for that year, attributes the reduction to random variation, but Greenhouse observes that Justice Ginsburg had considered the drop sufficiently significant to take note of it in a speech to the American Sociological Association.  Whatever Ginsburg’s sociological musings might have been, she ought to have had a keener understanding of the consequences of nondiscriminatory merit-based selection and random variation.  In her 1993 Supreme Court confirmation hearing, it was learned, much to Ginsburg’s visible embarrassment, that in her 13 years on the D.C. Circuit she had never had a single black law clerk, intern, or secretary.  Out of 57 employees, zero blacks. 

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This Day in Liberal Judicial Activism—August 24



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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.

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This Day in Liberal Judicial Activism—August 23



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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?  

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This Day in Liberal Judicial Activism—August 19



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2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.”  In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.

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This Day in Liberal Judicial Activism—August 17



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2006—In what one expert commentator aptly labels a “transparently political screed,” Michigan federal district judge (and Carter appointee) Anna Diggs Taylor rules that the National Security Agency’s Terrorist Surveillance Program is unconstitutional.  Displaying its usual regard for the truth, the next day the New York Times editorial page praises Taylor’s “careful, thoroughly grounded opinion.”  Alas for the paper’s poor editorialists, the following day the Times runs a front-page article—“Experts Fault Reasoning in Surveillance Decision”—that reports that “[e]ven legal experts who agreed with [Taylor’s] conclusion” say that her opinion “overlooked important precedents, failed to engage the government’s major arguments, used circular reasoning, substituted passion for analysis and did not even offer the best reasons for its own conclusions.”  (How’s that for “careful” and “thoroughly grounded”?)  Even Harvard law professor Laurence Tribe, in the course of self-indulgently criticizing Taylor’s critics for self-indulgent criticism, complains that her opinion “seems almost to have been written more to poke a finger in the President’s eye than to please the legal commentariat or even, alas, to impress an appellate panel.”  But Tribe concludes that “her bottom line is very likely to survive appellate review.”

In July 2007, the Sixth Circuit overturns Taylor’s ruling, as a divided panel rejects her threshold determination that the plaintiffs had standing to pursue their claims.

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This Day in Liberal Judicial Activism—August 16



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1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent.  In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay.  Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review.  

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.” 

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule.

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This Day in Liberal Judicial Activism—August 15



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1938—Stephen Gerald Breyer is born in San Francisco.  An expert on regulation and a professor at Harvard Law School, Breyer serves from 1979 to 1980 as chief counsel to Teddy Kennedy on the Senate Judiciary Committee.  His reward:  On November 13, 1980—after Ronald Reagan has defeated Jimmy Carter in his bid for re-election and after Republicans have won control of the new Senate—Carter nominates Breyer to a newly created seat on the First Circuit.  His nomination is promptly confirmed.  In 1994 President Clinton appoints Breyer to replace retiring justice Harry A. Blackmun on the Supreme Court.  (See This Week for July 29, 1994.)  His jurisprudence has been aptly described by one perceptive critic as “judicial willfulness masquerading as judicial deference.”    

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