Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—July 19

(Photo Illustration: NRO)

2014—In Wood v. Ryan, a divided Ninth Circuit panel relies on the First Amendment as it awards Joseph Wood a preliminary injunction against his impending execution for the murders 25 years ago of his estranged girlfriend and her father. Specifically, Judge Sidney R. Thomas concludes in his majority opinion that Wood “has raised serious questions as to the merits of his First Amendment claim” that the public has a right of access to information regarding the source and manufacturer of the drugs to be used in his execution, the qualifications of the execution personnel, and the manner in which the state of Arizona developed its lethal-injection protocol.  

In dissent, Judge Jay S. Bybee marvels that the majority’s “newfound access is a dramatic extension of anything that we or the Ninth Circuit have previously recognized,” and he points out that the majority’s remedy of enjoining the execution is “equally novel,” as Wood “would have no more right to the information than any other member of the public.” 

Two days later, eleven members of the Ninth Circuit (including Obama appointee John B. Owens) will dissent from the court’s failure to grant en banc review of the panel ruling. And on July 22, the Supreme Court will issue a unanimous order vacating the preliminary injunction. 

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