Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 27

(Jonathan Ernst/Reuters)

2015—Federal district judge Jon S. Tigar denies the state of California’s request for a stay, pending appeal, of his preliminary injunction ordering the state (supposedly pursuant to the Eighth Amendment) to provide prisoner Jeffrey Norsworthy “sex reassignment surgery as promptly as possible.”

Tigar agrees that the state’s appeal raises a serious legal question but he concludes that the state can’t show irreparable injury from denial of the stay. Never mind that, if the mutilation-as-surgery goes forward, the state will never be able to recover the costs of surgery that it incurs. Tigar’s denial of the stay is evidently designed to render the matter moot—what relief could the state obtain post-surgery?—and thus immunize his own ruling from appellate review.

A Ninth Circuit panel will promptly issue an order staying Tigar’s injunction pending appeal. But one day before oral argument on the Ninth Circuit appeal, the state will release Norsworthy on parole.

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