“[I]t is the responsibility of the judiciary to declare the law that the government may not deprive the People of their Constitutional guarantee of the God-given right to life.” So declared a federal judge last week. But, no, she wasn’t recognizing the constitutional personhood of unborn human beings.
More than seven years ago, federal district judge Ann L. Aiken issued what I described as “perhaps the most pervasively lunatic ruling I have ever seen.” In Juliana v. United States, she denied the Obama administration’s motion to dismiss a lawsuit in which “a group of young people,” ages eight to nineteen, claim that they have a substantive due process right to a stable climate.
After the Ninth Circuit twice denied the federal government’s request for mandamus relief, the Supreme Court in 2018 strongly indicated that it agreed with the federal government that the lawsuit was (in the Court’s paraphrase) “beyond the limits of Article III,” and it not so subtly hinted that the Ninth Circuit should put an end to the lawsuit. Four years ago, a Ninth Circuit panel majority consisting of two Obama appointees proceeded to do exactly, directing Aiken to dismiss the lawsuit.
But Aiken refused to follow the Ninth Circuit’s direction, and (as I’ve learned from Jonathan Adler’s Volokh Conspiracy post today) she has just declined to dismiss the amended complaint that she invited the plaintiffs to file and has also granted the plaintiffs’ motion to set a pretrial conference. So it appears that the federal government will need to seek emergency relief from the Ninth Circuit. (Aiken refused even to certify her ruling for appeal.) This time the Ninth Circuit, in addition to directing that the case be dismissed, should remove Aiken from the matter and remand it to a different judge.
Aiken is so confused about the judicial role that she cites Marbury v. Madison (1803) five separate times, as if the judicial duty “to say what the law is” in justiciable cases overrides limits on what is justiciable. In complaining that “[s]ome may balk at [her] approach as errant or unmeasured”—understatement alert!—she brazenly cites the very Ninth Circuit opinion that directed her to dismiss the case.