Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—August 16

1996—One reason that the Ninth Circuit is so dysfunctional is that it fails to make responsible use of its en banc procedures to override panel rulings that conflict with Supreme Court precedent. In his opinion in Wicklund v. Salvagni, Judge Stephen Reinhardt rules that the judicial-bypass provision of a Montana statute requiring parental notice for minors’ abortions is unconstitutional under the Ninth Circuit’s 1991 ruling in Glick v. McKay. Reinhardt rejects the argument that the Glick ruling was contrary to Supreme Court precedent and does not raise the possibility of en banc review. 

In a per curiam ruling (in Lambert v. Wicklund), the Supreme Court, seeing no need for briefing or oral argument, unanimously reverses the Ninth Circuit holding on the ground that it is “in direct conflict with our precedents.”

1999—By a vote of 4 to 3, the Ohio supreme court rules (in State ex rel. Ohio Academy of Trial Lawyers v. Sheward) that tort-reform legislation violates separation-of-powers principles and the ever-malleable single-subject rule. 

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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