Bench Memos

A Master of Judicial Activism Trains an Acolyte

Judge Stephen Reinhardt, of the U.S. Court of Appeals for the Ninth Circuit, has been refining his craft as a liberal activist judge for 35 years, and in that time has become the indubitable master. For a budding activist judge, there is no better mentor. And in Judge Jon Tigar, of the U.S. District Court for the Northern District of California, Reinhardt has found the perfect protégé.

Tigar, the son of radical lawyer Michael Tigar, graduated from U.C. Berkeley School of Law in 1989, was appointed to the Alameda County Superior Court by Democratic governor Gray Davis in 2002, and was then promoted to a life-tenured seat on the federal bench by President Obama in 2013. So far, Tigar’s most notable decision as a federal judge is his April 2, 2015 ruling in Norsworthy v. Beard, in which he ordered the state of California to provide a male transgender prisoner (Jeffrey Norsworthy, a convicted murderer serving a life sentence) a sex-change operation (vaginoplasty) on the ground that such surgery is medically required pursuant to the Eighth Amendment (i.e., that failing to provide “sex reassignment surgery” (SRS) to a prisoner with “gender dysphoria” constitutes “cruel and unusual punishment”).

Tigar’s ruling raised eyebrows for several reasons. First, it was totally unprecedented; no federal appellate court in America has ever reached this result. Second, it overturned the longstanding practice of the California Department of Corrections and Rehabilitation, which specifically disallowed vaginoplasty as “not medically necessary”; no California inmate had ever received SRS while in custody. The vaginoplasty could cost up to $100,000, and there are almost 400 transgender inmates in California prisons receiving hormone therapy. Third, and most importantly, Tigar refused to stay his decision pending the state of California’s appeal. Even though Norsworthy was a 51-year-old man who had lived with male genitals all his life, and had begun “identifying” as a woman 20 years earlier, Tigar concluded that Norsworthy’s SRS could not await the outcome of the state’s appeal. Tigar ordered the vaginoplasty to proceed “as promptly as possible.”

Tigar’s refusal to stay his decision (technically a preliminary injunction) was too much for even the Ninth Circuit, which quickly issued an order staying the ruling, pending appeal. At this point, things got interesting. After five previous denials (based on prison rule violations), Norsworthy was granted parole, having served 28 years of his life sentence. Before the appeal could be heard (and before the taxpayer-funded SRS could be performed), Norsworthy was released from prison.

In a normal world, this would render the entire case moot, but since we are dealing with the Ninth Circuit, things are a bit more complicated. Following Norsworthy’s release, the state filed a routine “motion for vacatur” with the Ninth Circuit to dismiss the appeal, cancel oral argument, and vacate the preliminary injunction. The motion was referred to a three-judge panel consisting of Judges Reinhardt, A. Wallace Tashima, and Consuelo Callahan. In a per curiam (unsigned) opinion issued on October 5, the panel unanimously agreed that the case was rendered moot by Norsworthy’s release. However, the panel declined to vacate Tigar’s preliminary injunction.

By a 2-1 vote (Reinhardt and Tashima in the majority, with Callahan dissenting), the panel opined that while automatic vacatur of a mandatory injunction is the “established practice” whenever mootness prevents appellate review, “an exception to this practice exists when a case is mooted not due to happenstance but when the appellant has by his own act caused dismissal of the appeal” (emphasis added). The state argued that the determination of parole eligibility was independent and not “caused” by the state of California. Reinhardt and Tashima demurred, stating that the facts surrounding Norsworthy’s release were “not sufficiently developed in the record” to support that conclusion. Accordingly, the majority remanded the case “to the district court [i.e., Tigar] so that it can determine whether this appeal became moot through happenstance or the defendants’ own actions.” If the latter, the district court could conceivably keep the injunction in effect — requiring the state to provide Norsworthy with a vaginoplasty even after he was released on parole. Callahan dissented from the remand, calling the majority’s rationale “sophistry.” Callahan would have vacated the injunction as moot.

Now, it is not clear whether the unsigned per curiam opinion was written by Reinhardt or Tashima, but based on Reinhardt’s activist track record, and proclivity for such sly maneuvers, my instinct tells me that Reinhardt is behind the remand. Knowing that Tigar strongly favored a vaginoplasty for Norsworthy, and that Tigar wrote an unusually bold — and unprecedented — opinion to support that result, Reinhardt’s per curiam opinion is a not-so-subtle invitation (wink, wink) for Tigar to engage in activist mischief on remand.

It remains to be seen whether Tigar will “take the bait.” However, the fact that Reinhardt is still busy concocting procedural machinations at age 84 demonstrates his indefatigable commitment to judicial activism, a powerful lesson to Judge Tigar and other acolytes.


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