1994—In the face of her manifestly terrible record, the Senate, by a vote of 61 to 37, confirms President Clinton’s nomination of Florida chief justice Rosemary Barkett (recognize the name yet?) to the Eleventh Circuit. Barkett wins high praise from Senate Democrats—for example, Teddy Kennedy labels her an “outstanding jurist”—and Robert Byrd is the only Democrat to vote against her.
1999—By a vote of 4 to 3, the Ohio Supreme Court (in Johnson v. BP Chemicals) rules that the state workers’ compensation law violates a state constitutional provision supposedly requiring that laws “further the ‘comfort, health, safety, and general welfare of all employees.’” But as Justice Deborah L. Cook, in dissent, points out, the constitutional provision, which was adopted in response to claims that the legislature did not have authority to legislate minimum wages, provides only that “[l]aws may be passed fixing and regulating the hours of labor, establishing a minimum wage, and providing for the comfort, health, safety, or general welfare of all employees.” Cook nicely summarizes the broader problem with judicial activism: “When judges declare governmental actions unconstitutional based upon a personal distaste for the policies adopted through the legislative process, we cease to be governed by democracy.”
2021—Fringe Democrats in the House and Senate announce their proposed bill to pack the Supreme Court by increasing the number of justices from nine to thirteen.
2025—Evidently intoxicated by transgender ideology, federal district judge Steven J. McAuliffe of the District of New Hampshire rules (in Fellers v. Kelley) that public-school officials did not violate the First Amendment rights of adults attending a girls’ soccer game when it ejected them merely for wearing pink wristbands that bore the mark XX.
The adults wore the wristbands as a quiet protest against the fact that a player on the opposing team was a biological male. As McAuliffe acknowledges, “They did not shout, chant, or otherwise call attention to themselves or their message.” In his view, it did not matter whether the adults meant to communicate only that “they opposed transgender girls or women [i.e., biological males] participating in girls’ or women’s sporting events.” School officials could reasonably conclude that “their message included a demeaning and harassing assertion—an assertion of inauthenticity, falsity and nonexistence with respect to some students’ core and immutable characteristics (i.e., their gender identities).” The XX symbol in this context could “reasonably be understood as directly assaulting those who identify as transgender women.” (Emphasis added.)
McAuliffe further implausibly maintains that the school’s policy—which would allow pro-transgender speech—doesn’t discriminate on the basis of viewpoint: It “is not viewpoint based. It is effects based.”
2025—Federal district judge Indira Talwani of the District of Massachusetts issues an order (in Doe v. Noem) that blocks DHS Secretary Kristi Noem from revoking the Biden administration’s categorical grant of parole to aliens from Cuba, Haiti, Nicaragua, and Venezuela.
Six weeks later, the Supreme Court will stay Talwani’s order through the entirety of the appellate process.