Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 29

1965—In Scenic Hudson Preservation Conference v. Federal Power Commission, a Second Circuit panel abandons the traditional requirement that a plaintiff, in order to establish standing, must allege a concrete and particularized injury that is actual or imminent. In a ruling authored by Judge Paul R. Hays, the court declares that “those who by their activities and conduct have exhibited a special interest” in “the aesthetic, conservational, and recreational aspects of power development” have standing to challenge the Federal Power Commission’s grant of a license to a company to construct a hydroelectric project on the Hudson River.

2014—Twenty-five years after Eric Owen Mann murdered two men in cold blood, Ninth Circuit judges Sidney R. Thomas and Stephen Reinhardt combine to rule (in Mann v. Ryan) that Mann is entitled to habeas relief on his claim that his counsel’s performance at the sentencing phase of his trial was constitutionally deficient. In dissent, Judge Alex Kozinski observes:

Time and again, we have been admonished for disregarding Congress’s clear instruction that federal judges in habeas proceedings must adopt a “highly deferential standard” under which “state-court decisions [are] given the benefit of the doubt.” In clear violation of this principle, the majority today seizes upon imprecise language in a single sentence of a state court’s otherwise well-reasoned and comprehensive opinion, and uses it to sweep aside AEDPA’s restrictions on the scope of our review. The majority not only fails to faithfully apply Supreme Court precedent, it also creates a split with two other circuits.

In August 2015, the Ninth Circuit will grant en banc review of the panel ruling, and in July 2016, it will repudiate the panel ruling.

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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