Daniel Collins and Patrick Bumatay have a lot in common. Both went to exceptional schools, clerked for multiple federal judges, and have dedicated themselves to serving the public. And of course, both were nominated by President Trump to fill vacancies on the Ninth Circuit and are playing a role in remaking that court.
Since becoming judges, Collins and Bumatay have shared another thing in common: a commitment to interpreting the Constitution based on its text and original meaning rather than on partisan policy preferences. Take for example Edmo v. Corizon, Inc. In that case, a prisoner who identified as transgender demanded that the prison treat the gender dysphoria with sex-reassignment surgery. After a consultation with the prison doctor, the request was denied. Instead, the doctor concluded that the prisoner had coexisting mental-health issues that required counseling and treatment before surgery could be considered. A three-judge panel of the Ninth Circuit held that the doctor’s decision constituted “cruel and unusual punishment” under the Eighth Amendment. The Ninth Circuit then rejected a request to have the full court reconsider the panel’s decision.
Judge Collins and Judge Bumatay both dissented from the rejection of the rehearing request. Judge Collins noted that under binding Supreme Court precedent, for a decision to be “cruel and unusual” under the Eighth Amendment, prison officials must have acted with “deliberate indifference” to the prisoner’s “serious medical needs.” A doctor’s decision to prescribe a different treatment plan than the one a prisoner requests, Judge Collins explained, does not amount to “deliberate indifference” merely because a court disagrees with the doctor’s approach.
Judge Bumatay agreed. He explained that “our duty . . . to faithfully interpret the Constitution. . . . commands that we apply the Eighth Amendment, not our sympathies.” Reviewing the Amendment’s text and history, he found no support for the notion that declining to provide gender-reassignment surgery could be considered “inhuman,” “barbarous,” or “so out of line with longstanding practice as to be forbidden by the Eighth Amendment.” Indeed, as Judge Bumatay noted, there is still considerable disagreement within the medical community about how best to treat gender dysphoria. Particularly given this lack of consensus, a court cannot substitute its own judgment for that of the medical community by holding that any treatment other than reassignment surgery constitutes cruel and unusual punishment.
As the dissents by Judges Collins and Bumatay emphasize, it is not the role of judges to use the Constitution as a vehicle to enact their preferred health-care and prison policies into law. Rather, judges are empowered only to say what the law is, by faithfully and honestly interpreting the text and the original meaning of that law. Collins and Bumatay’s commitment to this judicial philosophy is quite a refreshing change on the Ninth Circuit.