2014—Arch-activist Stephen Reinhardt sets the stage for the judicial invalidation of state marriage laws throughout the Ninth Circuit. Writing for a liberal panel, Reinhardt rules in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Reinhardt construes the Supreme Court’s recent decision in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles.
Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.
In fact, the Windsor majority’s reasoning was directed at the specifics of the Defense of Marriage Act, so it was unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.
2020—The Committee on Codes of Conduct of the Judicial Conference of the United States—a body of federal judges charged with providing ethics advice—circulates to all federal judges a poorly reasoned draft advisory opinion that concludes that federal judges can be members of the American Bar Association but can’t be members of the Federalist Society. The draft opinion rests heavily on its claim that the ABA “is concerned with the improvement of the law in general and advocacy for the legal profession as a whole.” But that claim is contradicted by the ABA’s aggressive advocacy of liberal causes, including by filing amicus briefs in federal court and by lobbying members of Congress. By contrast, the Federalist Society, which the draft opinion accuses of “advocating … conservative causes,” does not take institutional positions, has never filed an amicus brief in any case, and does not lobby.
In response, more than 200 judges, including several appellate judges appointed by Democratic presidents, will sign a letter explaining that the draft opinion “conflicts with the Code of Conduct, misunderstands the Federalist Society, applies a double standard, and leads to troubling consequences.” In July 2020, the Committee will abandon its draft opinion.