Bench Memos

This Day in Liberal Judicial Activism—December 16

2014—The First Circuit’s en banc ruling (in Kosilek v. Spencer) that the Eighth Amendment does not require the Massachusetts prison system to provide sex-reassignment surgery to a prisoner triggers a histrionic dissent from Judge O. Rogeriee Thompson. Thompson states that she is “confident that this decision will not stand the test of time, ultimately being shelved with the likes of Plessy v. Ferguson … and Korematsu v. United States.” Her litany of how “damaging” the ruling is culminates in the charge that it will—hold on to your seats!—“enable[] correctional systems to further postpone their adjustment to the crumbling gender binary.”


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