Bench Memos

This Day in Liberal Judicial Activism—November 22

2006—It’s monkey business as usual at the Ninth Circuit.  A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable.  Judge Kozinski concludes his thorough dissent with this summary:

The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

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