Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 5

The U.S. Department of Homeland Security emblem. (Hyungwon Kang/Reuters)

1970—A three-judge district court, consisting of Seventh Circuit judge Otto Kerner Jr. and district judges John W. Reynolds and Myron L. Gordon, rules that a Wisconsin law, dating from 1858, that prohibits abortion before quickening violates the Ninth Amendment.

Never mind that the Ninth Amendment sets forth a mere rule of construction—“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”—and cannot plausibly be read as the font of any rights. Never mind, also, that the Wisconsin law merely codified the common-law rule in effect before and after the Ninth Amendment was adopted.

2012—Despite affirming the district court’s entry of a permanent injunction barring police from imposing content-based restrictions on roadside demonstrations by anti-abortion protesters, a Fourth Circuit panel (in Lefemine v. Wideman) rules that the plaintiff protesters are somehow not “prevailing parties” eligible for an award of attorney’s fees.

On a petition for review, the Supreme Court will summarily reverse the Fourth Circuit panel in a per curiam opinion.

2020—In Al Otro Lado v. Wolf, a divided Ninth Circuit panel denies the Department of Homeland Security’s motion for a stay pending appeal of federal district judge Cynthia Bashant’s preliminary injunction that bars DHS from enforcing its “Third Party Transit Rule” against a supposed class of some 26,000 asylum seekers. Dissenting judge Daniel A. Bress marvels:

“In a case that does not challenge it, the district court below partially enjoined an asylum rule that the Supreme Court just months ago ordered could go into effect pending appeal. How could this even happen?”

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