Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 1

2008—Wisconsin voters, presented the opportunity to alter what one commentator aptly called the “4-3 liberal majority [that had become] the nation’s premier trailblazer in overturning its own precedents and abandoning deference to the legislature’s policy choices,” defeat associate justice Louis B. Butler Jr.’s bid to remain on the court and elect Michael Gableman in his place.

2013—In a per curiam opinion (in Marshall v. Rodgers), the Supreme Court unanimously overturns a Ninth Circuit panel decision joined by Ninth Circuit judges Stephen Reinhardt and William A. Fletcher (and authored by a visiting district judge). The Ninth Circuit panel had granted the claim by a habeas petitioner that the state of California had violated his Sixth Amendment right to effective assistance of counsel. But, explains the Supreme Court, the panel’s conclusion that the habeas claim was supported by “clearly established Federal law” rested on its “mistaken belief that circuit precedent may be used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific rule that this Court has not announced.”

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