Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—June 30

The Supreme Court building in Washington, D.C. (Yuri Gripas/Reuters)

1993—In furtherance of his 1985 desegregation plan for the Kansas City, Missouri, School District—a plan that will become (according to the description embraced by Chief Justice Rehnquist) the “most ambitious and expensive remedial program in the history of school desegregation”—federal district judge Russell G. Clark orders the state of Missouri to fund salary increases for school-district staff in order to improve the “desegregative attractiveness” of the school district to non-minority students outside the district. By the time the Supreme Court reviews this and similar orders, the total salary assistance that Clark will have required the state of Missouri to provide will exceed $200 million.

In its 1995 decision in Missouri v. Jenkins, the Supreme Court will rule, by a 5-to-4 vote, that Clark’s orders of salary increases exceed his “admittedly broad discretion.”

2016—Federal district judge Carlton W. Reeves rules (in Barber v. Bryant) that a Mississippi law that provides protections against government reprisals for those who take various actions based on their conviction that marriage is the union of a man and a woman violates the Establishment Clause and the Equal Protection Clause.

One year later, a unanimous Fifth Circuit panel will reverse Reeves’s ruling on the ground that the plaintiffs in the case, having failed to show that they were injured by the law, lacked standing to challenge it.

2016—Perhaps Ninth Circuit judge Kim McLane Wardlaw is competing for a Lifetime Summary Reversal Award. As Judge Diarmuid O’Scannlain aptly sums it up in dissent, the panel opinion by Wardlaw in Cuero v. Cate “erroneously orders federal habeas relief to a state prisoner on the basis of a non-existent plea agreement and irrelevant state contract law.”

In 2017, a unanimous Supreme Court will summarily reverse Wardlaw’s ruling (in Kernan v. Cuero) and thus add to her record of dubious achievements.

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