Bench Memos

This Day in Liberal Judicial Activism—January 21

2014—Arch-activist Stephen Reinhardt sets the stage for the judicial invalidation of state marriage laws throughout the Ninth Circuit. Writing for a liberal panel, Reinhardt rules in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Reinhardt construes the Supreme Court’s recent decision in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles.

Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.

In fact, the Windsor majority’s reasoning was directed at the specifics of the Defense of Marriage Act, so it was unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.

Most Popular

Politics & Policy

A Bizarre and Revealing Biden Interview

William Voegeli of the Claremont Review of Books brought up a strange Joe Biden interview from 1974 I hadn't seen before in which Biden emerges as arrogant and determined to make more money, one way or another. Biden also speaks of his first wife Neilia, who had died two years earlier, in unusually frank ways: ... Read More
Politics & Policy

A Bizarre and Revealing Biden Interview

William Voegeli of the Claremont Review of Books brought up a strange Joe Biden interview from 1974 I hadn't seen before in which Biden emerges as arrogant and determined to make more money, one way or another. Biden also speaks of his first wife Neilia, who had died two years earlier, in unusually frank ways: ... Read More
Media

The Media’s Shameful Hunter Biden Abdication

In an interview with National Public Radio’s public editor today, Terence Samuel, managing editor for news, explained why readers haven’t seen any stories about the New York Post’s Hunter Biden email scoop. “We don’t want to waste our time on stories that are not really stories, and we don’t want ... Read More
Media

The Media’s Shameful Hunter Biden Abdication

In an interview with National Public Radio’s public editor today, Terence Samuel, managing editor for news, explained why readers haven’t seen any stories about the New York Post’s Hunter Biden email scoop. “We don’t want to waste our time on stories that are not really stories, and we don’t want ... Read More
Media

The Unseemly Urge to Excuse Jeffrey Toobin

Jeffrey Toobin, legal analyst for CNN and The New Yorker, was suspended from his jobs and subjected to a round of public mockery for visibly exposing himself while masturbating on a Zoom call with New Yorker colleagues. The call was designed to role-play post-election scenarios for a contested election; Toobin ... Read More
Media

The Unseemly Urge to Excuse Jeffrey Toobin

Jeffrey Toobin, legal analyst for CNN and The New Yorker, was suspended from his jobs and subjected to a round of public mockery for visibly exposing himself while masturbating on a Zoom call with New Yorker colleagues. The call was designed to role-play post-election scenarios for a contested election; Toobin ... Read More

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More

The Pollster Who Thinks Trump Is Ahead

The polling aggregator on the website RealClearPolitics shows the margin in polls led by Joe Biden in a blue font and the ones led by Donald Trump in red. For a while, the battleground states have tended to be uniformly blue, except for polls conducted by the Trafalgar Group. If you are a firm believer only in ... Read More