Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 21

The U.S. Supreme Court in Washington, D.C., June 11, 2018. (Erin Schaff/Reuters)

2011—In Amnesty International v. Clapper, a Second Circuit panel rules that attorneys, journalists, and labor, legal, media, and human rights organizations have standing to bring an action facially challenging the constitutionality of a provision of federal law that creates new procedures for authorizing foreign electronic surveillance. The plaintiffs have standing, the panel rules, because the new procedures “cause them to fear that their communications will be monitored, and thus force them to undertake costly and burdensome measures to protect the confidentiality of international communications necessary to carrying out their jobs.”

As surveillance expert Orin Kerr puts it, “If this new decision is right, then challenging secret surveillance statutes would seem to be pretty easy—in stark contrast with the previous understanding that it was extremely difficult.”

In September 2011, the Second Circuit will deny rehearing en banc on an evenly divided 6-6 vote. The dissenters condemn the panel’s rule as contrary to Supreme Court precedent, and Chief Judge Dennis Jacobs adds:

“As best I can see, the only purpose of this litigation is for counsel and plaintiffs to act out their fantasy of persecution, to validate their pretensions to policy expertise, to make themselves consequential rather than marginal, and to raise funds for self-sustaining litigation.”

Two years later, the Supreme Court, by a 5-to-4 vote, will reverse the panel ruling on the ground that plaintiffs’ theory of future injury “relies on a highly attenuated chain of possibilities” and was thus too speculative to satisfy Article III’s standing requirement.

2012—By a vote of five to four, the Supreme Court rules in Lafler v. Cooper that a habeas petitioner who received a full and fair trial may nonetheless pursue a claim that his attorney’s allegedly incompetent advice regarding a plea-bargaining offer deprived him of his (supposed) Sixth Amendment right to effective assistance of counsel. Never mind (among other things) that assurance of a fair trial is what the right to effective assistance of counsel had been thought to protect and that the petitioner, having received a fair trial, therefore did not suffer any constitutional injury.

The majority’s “squeamishness in fashioning a remedy, and the incoherence of what it comes up with,” argues Justice Scalia in dissent, signal “its realization, deep down, that there is no real constitutional violation here anyway.”

2014—After encouraging plaintiffs, a same-sex couple, to recast their challenge to state adoption laws as a challenge to state marriage laws, federal district judge Bernard A. Friedman rules (in DeBoer v. Snyder) that the Michigan constitutional amendment that defines marriage as the union of a man and a woman is not “rationally related to any conceivable legitimate governmental interest.” Despite the fact that the Supreme Court, in the preceding month, had intervened to block a similar ruling against another state’s marriage laws from taking effect during the appellate process, Friedman refuses even to stay his own ruling pending appeal. (The Sixth Circuit, one day later, will stay Friedman’s ruling.)

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