Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—January 17

(Michał Chodyra/Getty Images)

2014—Retired Sixth Circuit judge Boyce F. Martin Jr.’s career of zany lawlessness ends in rank public disgrace, as the Judicial Conference of the United States denies his request to keep confidential the results of a Judicial Council investigation into up to $138,500 of “questionable travel reimbursement expenses.”

By suddenly retiring in May 2013, Martin succeeded in obtaining a dismissal of the misconduct proceedings against him. But the Judicial Council decided that the public interest required disclosure of the charges against Martin.

Further, in an action that one federal judicial expert called “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.

2014—The judicial butchering of the Constitution continues. In Kosilek v. Spencer, a divided panel of the First Circuit affirms a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name has been changed to Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”

Eleven months later, the en banc First Circuit will overturn the panel ruling by a 3-2 vote.

2020—Some judges are too willful or obtuse to take even the strongest hint from the Supreme Court. In Juliana v. United States, the Ninth Circuit panel majority sensibly, though “reluctantly,” discerns from an earlier Supreme Court order that a group of young people lack standing to pursue their legal claim that they have a substantive due process right to a stable climate. But Judge Josephine L. Staton, a district judge sitting by designation on the panel, dissents, hyperbolically asserting that “the government bluntly insists that it has the absolute and unreviewable power to destroy the Nation.”


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