Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—August 23


2006—The New York Times reports that Michigan federal district judge Anna Diggs Taylor, who issued a wild ruling the previous week declaring that the National Security Agency’s Terrorist Surveillance Program is unconstitutional (see This Day for August 17, 2006), is a trustee and officer of a group that has given at least $125,000 to the Michigan ACLU, the plaintiff in the NSA case.

2019—A Ninth Circuit panel rules (in Edmo v. Corizon, Inc.) that the Eighth Amendment requires that the state of Idaho provide—euphemism alert!—“gender confirmation surgery” to a “male-to-female transgender prisoner” suffering from gender dysphoria.

Months later, when the Ninth Circuit denies en banc rehearing in the case, Judge Diarmuid O’Scannlain, joined by eight of his colleagues, will object that the panel decision “is as unjustified as it is unprecedented”:

“To reach such a conclusion, the court creates a circuit split, substitutes the medical conclusions of federal judges for the clinical judgments of prisoners’ treating physicians, redefines the familiar “deliberate indifference” standard, and, in the end, constitutionally enshrines precise and partisan treatment criteria in what is a new, rapidly changing, and highly controversial area of medical practice.”


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