Bench Memos

Law & the Courts

Police Officer Dead from Liberal Judicial Activism?

[I am retracting this post, for the reasons stated here.]

This one hits close to home: Keith Boyer, a police officer in my hometown of Whittier, California, was shot to death on Monday at an intersection near my childhood home. Police have identified Michael Christopher Mejia as the suspect in Boyer’s killing. According to this Whittier Daily News article (emphasis added):

Mejia was released from state prison in April 2016 following a grand theft auto conviction in 2014. He was on county probation under Assembly Bill 109 when he allegedly shot and killed Boyer and Torres and also had been arrested multiple times in recent months for violating his probation, Corina said.

Signed into law in 2011, AB 109 mandated “realignment,” which shifted nonviolent offenders from state prisons to county jails, or placed them on probation under county supervision rather than parole under state supervision. It was a response to a U.S. Supreme Court order declaring the condition of California’s overcrowded prisons as violating the constitutional rights of inmates.

[Update (12:35 p.m.): According to an e-mail that has been forwarded to me, state prison officials are contesting (or at least attenuating) the causal connection between AB 109 and Officer Boyer’s death. By their account, AB 109 “did not impact time served” by Mejia, but only “the entity handling supervision of [him] following [his] release.”]

The Supreme Court ruling that the article refers to is the Court’s 5-4 decision in 2011 in Brown v. Plata. That decision affirmed what Justice Scalia in dissent called “perhaps the most radical injunction issued by a court in our Nation’s history: an order requiring California to release the staggering number of 46,000 convicted criminals” and to maintain its prison population below a certain threshold.  In his own dissent, Justice Alito lambasted the injunction as “unprecedented, improvident, and contrary to the [Prison Litigation Reform Act of 1995],” and he faulted the Court majority for “gambling with the safety of the people of California” in a way that “will lead to a grim roster of victims.”

And guess who issued the injunction that Justice Kennedy and his four liberal colleagues affirmed? A three-judge district court consisting of three hard-Left Carter appointees—Ninth Circuit judge Stephen Reinhardt and senior district judges Lawrence K. Karlton and Thelton E. Henderson.

On the assumption that it was Mejia who killed Officer Boyer, is it unfair of me to also lay blame for his death on Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan and Judges Reinhardt, Karlton, and Henderson? I certainly don’t think so. [This conclusion of mine is subject to the update above and is predicated on the article’s understanding that there is a traceable connection between Brown v. Plata and Officer Boyer’s death. I have added a question mark to the title of this post to reflect the uncertainty.]

Let me emphasize that I believe that a judge has a duty to interpret and apply the law faithfully, irrespective of the consequences. So if the court rulings were objectively faithful applications of the law, I would not fault any of the justices and judges who made those rulings. But for the reasons spelled out in Scalia’s and Alito’s dissents, I believe those rulings were glaringly wrongful exercises of judicial activism. And while I will happily assume that all the jurists were acting in subjective good faith, that doesn’t render their rulings objectively faithful to the Constitution.  

I’ll also note that so-called “living constitutionalists” routinely offer consequentialist justifications for their judicial inventions. As I’ve explained, I don’t believe that consequences provide the proper measure of the soundness of an interpretive methodology. But for those who do, they should be ready to accept responsibility for the adverse consequences of their rulings—including (so it appears) the murder of Officer Boyer.

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