Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—February 8

Supreme Court justice Brett Kavanaugh (Doug Mills/Pool via Reuters)

2016—By a vote of six to four (in Wesby v. District of Columbia), the D.C. Circuit denies en banc rehearing of a rogue panel decision authored by Judge Cornelia Pillard. As Judge Brett Kavanaugh objects in his lengthy dissent from the denial, the panel ruling subjects two police officers to liability for nearly one million dollars for “arresting for trespassing a group of people who were partying late at night with drugs and strippers in a vacant house that the partiers did not own or rent.” Kavanaugh argues both that the police officers had probable cause to make the arrests and that the panel’s holding that they were not entitled to qualified immunity “contravenes … emphatic Supreme Court directives.”

Nearly two years later, without any dissent, the Supreme Court will embrace Kavanaugh’s positions and reverse the panel ruling.

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