Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—December 3

2012—A Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt, rules that a police officer was not entitled to qualified immunity on a plaintiff’s claim that he had violated her constitutional rights by entering her yard in pursuit of a suspect. Under clearly established law, Reinhardt maintains, the police officer should have known that his entry was unconstitutional.

One year later, the Supreme Court summarily reverses Reinhardt in a per curiam ruling (in Stanton v. Sims). Here’s how the Court summarizes the actual state of this supposedly “clearly established” body of law:

“Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided.”

Most Popular

PC Culture

Women Lie Too

Elizabeth Warren says Bernie Sanders once told her that a woman couldn't win the presidency. Bernie Sanders says Elizabeth Warren is lying about the encounter. I have no idea whom to believe. Some notable people on Twitter have wondered if maybe, considering all that happened during the #MeToo movement, ... Read More
PC Culture

Women Lie Too

Elizabeth Warren says Bernie Sanders once told her that a woman couldn't win the presidency. Bernie Sanders says Elizabeth Warren is lying about the encounter. I have no idea whom to believe. Some notable people on Twitter have wondered if maybe, considering all that happened during the #MeToo movement, ... Read More
Politics & Policy

The Botched Democratic Case for Witnesses

The fate of the republic, we are now supposed to believe, hinges on whether there are witnesses at a Senate impeachment trial. Upon the long-anticipated transmittal of the articles of impeachment to the Senate, House Judiciary Chairman Jerry Nadler said if the upper chamber doesn’t obtain the witnesses and ... Read More
Politics & Policy

The Botched Democratic Case for Witnesses

The fate of the republic, we are now supposed to believe, hinges on whether there are witnesses at a Senate impeachment trial. Upon the long-anticipated transmittal of the articles of impeachment to the Senate, House Judiciary Chairman Jerry Nadler said if the upper chamber doesn’t obtain the witnesses and ... Read More
Elections

Bernie Is Not Normal

The most substantively outrageous presidential campaign in American history has some serious chance of success. Bernie Sanders is leading or near the top of most polls in the first two Democratic nominating states, Iowa and New Hampshire. He could plausibly win both, which would instantly transform the race ... Read More
Elections

Bernie Is Not Normal

The most substantively outrageous presidential campaign in American history has some serious chance of success. Bernie Sanders is leading or near the top of most polls in the first two Democratic nominating states, Iowa and New Hampshire. He could plausibly win both, which would instantly transform the race ... Read More