Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 15

A group of firefighters look on as a house burns in the wind-driven Kincade Fire in Healdsburg, Calif., October 27, 2019. (Stephen Lam/Reuters)

2008—In Ricci v. DeStefano, a Second Circuit panel that includes Judge Sonia Sotomayor buries the claims of 19 white firefighters and one Hispanic firefighter that New Haven city officials engaged in racially discriminatory practices by throwing out the results of two promotional exams.

As Judge José Cabranes, Sotomayor’s fellow Clinton appointee, later puts it in his blistering dissent from denial of en banc rehearing, even though the case presented “significant constitutional and statutory claims of first impression,” the parties “submitted briefs of eighty-six pages each and a six-volume joint appendix of over 1,800 pages,” and oral argument “lasted over an hour (an unusually long argument in the practice of our Circuit),” the panel somehow “affirmed the District Court’s ruling in a summary order containing a single substantive paragraph”—which Cabranes quotes in full and which gives the reader virtually no sense of what the case is about.

Cabranes’s opinion expresses his “hope that the Supreme Court will resolve the issues of great significance raised by this case” and his judgment that plaintiffs’ claims are “worthy of [Supreme Court] review.” Cabranes’s hope is fulfilled, as the Court grants review of the panel ruling and, in June 2009, reverses it.

2017—In a majority opinion written by Judge Karen Nelson Moore and joined by Judge Jane Stranch, a divided Sixth Circuit panel rules (in Bormuth v. County of Jackson) that a county board of commissioners’ practice of beginning its monthly meetings with a prayer violates the Establishment Clause. In dissent, Judge Richard Griffin objects that the practice of legislative prayer dates back to the founding of the Republic and that the Supreme Court has twice held that it does not violate the Establishment Clause.

Five months later, the en banc Sixth Circuit will reject the panel ruling by a vote of 9 to 6.

2019—There is evidently no truth that liberal judges won’t disparage as a negative stereotype when it suits their cause.

In Free the Nipple-Fort Collins v. City of Fort Collins, a divided panel of the Tenth Circuit enjoins, on equal-protection grounds, a city ordinance that prohibits women from baring their breasts in public (other than for purposes of breastfeeding) but imposes no restrictions on male toplessness. In his majority opinion (joined by Judge Mary Beck Briscoe), Judge Gregory A. Phillips heroically combats the “stereotype engrained in our society that female breasts are primarily objects of sexual desire whereas male breasts are not.” (He’s approvingly quoting the district court.)

In a classic false dichotomy, Phillips concludes that the city’s “professed interest in protecting children derives not from any morphological differences between men’s and women’s breasts but from negative stereotypes depicting women’s breasts, but not men’s breasts, as sex objects.” Ditto for “notions of morality” that might underlie the law.

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