Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—April 9

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2001—A Ninth Circuit panel, in an opinion by Stephen Reinhardt, rules in Doe v. Otte that application of Alaska’s Sex Offender Registration Act (commonly termed a “Megan’s Law”) to those whose crimes were committed before enactment of the Act violates the constitutional bar on ex post facto punishments. The Act requires sex offenders in the state to register with law-enforcement authorities, and it provides that a central registry of information about offenders will be made public. The Ninth Circuit concludes that the Act imposes criminal punishment and therefore may not be applied retroactively.

On review (styled Smith v. Doe), the Supreme Court in March 2003 reverses the Ninth Circuit by a 6 to 3 vote (with Stevens, Ginsburg, and Breyer in dissent). The Act, the Court determines, creates a regulatory scheme that is civil and nonpunitive. In his 39th and final argument before the Supreme Court, the attorney for Alaska, a fellow by the name of John G. Roberts, Jr., marks his last victory as an advocate.

2018—The Ninth Circuit issues a 6-5 en banc ruling in Rizo v. Yovino, with Judge Stephen Reinhardt listed as the author of the six-judge majority holding that an employer’s consideration of prior pay is impermissible under the Equal Pay Act. Never mind that Reinhardt died eleven days earlier and that his putative vote was essential to the outcome.

In February 2019, a unanimous Supreme Court will summarily reverse the Ninth Circuit on the ground that Reinhardt could not take part in the case after his death: “Federal judges are appointed for life, not for eternity.”

2018—Taking what it calls “an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders,” a Third Circuit panel rules (in United States v. Grant) that a man sentenced to a term of 65 years without parole for brutal crimes (including murder) that he committed when he was 16 years old has a presumptive right to be released from prison before he turns 65.

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