Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—August 24

(Shutterstock)

1995—The citizen-suit provision of the Endangered Species Act authorizes “any person” to sue for violations of the ESA. Demonstrating why liberal judicial activists should be an endangered species, Ninth Circuit judge Stephen Reinhardt, joined by two other Jimmy Carter appointees (Harry Pregerson and William C. Canby, Jr.), rules in Bennett v. Plenert that the so-called “zone of interests test” that courts have developed (beyond Article III’s constitutional requirements) as a prudential limitation on standing overrides the broad language of the citizen-suit provision. Therefore, the court concludes, “plaintiffs who assert no interest in preserving endangered species”—in this case, ranch operators and irrigation districts who alleged that they would be harmed by reservoir levels designed to protect two species of sucker fish—cannot challenge violations of the ESA.

On review by the Supreme Court, not even the Clinton Administration will defend the Ninth Circuit’s reasoning. In a unanimous opinion (in Bennett v. Spear), Justice Scalia explains that the zone-of-interests test is a judicially self-imposed limit on standing that Congress is free to negate—and that Congress did so through the ESA’s citizen-suit provision.

Most Popular

U.S.

How to Bend the News

This, from ABC, is a nice example of a news organization deliberately bending the truth in order to advance a narrative that it wishes were true but is not: Venerable gun manufacturer Colt says it will stop producing the AR-15, among other rifles, for the consumer market in the wake of many recent mass ... Read More
Education

George Packer Gets Mugged by Reality

Few journalists are as respected by, and respectable to, liberals as The Atlantic’s George Packer. The author of The Assassin's Gate (2005), The Unwinding (2013), and a recently published biography of Richard Holbrooke, Our Man, Packer has written for bastions of liberal thought from the New York Times Magazine ... Read More
U.S.

Trump’s Total Culture War

 Donald Trump is waging a nonstop, all-encompassing war against progressive culture, in magnitude analogous to what 19th-century Germans once called a Kulturkampf. As a result, not even former president George W. Bush has incurred the degree of hatred from the left that is now directed at Trump. For most of ... Read More
World

Iran’s Act of War

Last weekend’s drone raid on the Saudi oil fields, along with the Israeli elections, opens a new chapter in Middle Eastern relations. Whether the attack on Saudi oil production, which has temporarily stopped more than half of it, was launched by Iranian-sponsored Yemeni Houthis or by the Iranians themselves is ... Read More