Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 7

Supreme Court Justice Anthony Kennedy (Joshua Roberts/Reuters)

2013—Less than three weeks before oral argument in cases challenging the federal Defense of Marriage Act and California’s marriage laws, Justice Anthony Kennedy uses the dedication ceremony of a new court library (the “Anthony M. Kennedy Library and Learning Center”) to distribute a reading list that he has developed for young people.

Entitled “Understanding Freedom’s Heritage: How to Keep and Defend Liberty,” Kennedy’s list runs through many great selections—Pericles’ Funeral Oration, the Magna Carta, Lincoln’s Gettysburg Address and Second Inaugural, Martin Luther King Jr.’s “I Have a Dream”—only to culminate in Kennedy’s own opinion in Lawrence v. Texas (holding that there is a constitutional right to homosexual sodomy).

2019—A Ninth Circuit panel, in an opinion by Judge A. Wallace Tashima (in Thuraissigiam v. Department of Homeland Security), rules that statutory restrictions on the ability of asylum seekers to obtain review of their detention under the federal habeas statute unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process.

One year later, the Supreme Court will reverse the Ninth Circuit ruling (by a vote of 7 to 2).


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