Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 13

Florida Supreme Court Building (Wikimedia Commons)

1993—In dissent in University of Miami v. Echarte, Florida chief justice Rosemary Barkett flouts U.S. Supreme Court precedent as she opines that a statutory cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the federal Constitution. Nominated a few months later by President Clinton to the Eleventh Circuit, Barkett concedes at her confirmation hearing that she “should not have done that.” But, hey, activism happens—when, that is, reckless judges like Barkett are involved.

To make matters even worse: Barkett’s dissent adopts the position taken in an amicus brief submitted in the case by the Academy of Florida Trial Lawyers. While the case was pending and while Barkett was facing a retention election, this same group created an annual award named after her, the Rosemary Barkett Award. In November 1992, one week after her successful retention election, Barkett presented the first annual Rosemary Barkett Award at the group’s annual convention. So much for the fact and appearance of impartiality.

2019—Don’t be suckered by opportunistic invocations of the importance of stare decisis (adherence to precedent).

In dissent in Franchise Tax Board v. Hyatt, the four liberal justices, objecting to the majority’s overruling of a 1979 precedent, gravely warn that “stability in the law” requires that the Court “overrul[e] prior precedent only when the circumstances demand it.” Their dissent triggers the usual media alarms that the Court will—as it certainly should—overrule Roe v. Wade. Just a week later, the same justices will be part of a five-justice majority (in Herrera v. Wyoming) that, without any sign of hesitation, overrules a precedent from 1896.

2019—In Kayer v. Ryan, a divided panel of the Ninth Circuit grants federal habeas corpus relief to a state prisoner who was convicted of first-degree murder and sentenced to death more than two decades earlier. In his majority opinion, Judge William Fletcher, joined by Judge Michelle Friedland, holds that the prisoner’s counsel was deficient at the penalty phase of the trial and overturns the death sentence.

In dissent, Judge John B. Owens (an Obama appointee) explains that the majority’s reversal of the death sentence flouts the highly deferential standard of the Antiterrorism and Effective Death Penalty Act (AEDPA) and ignores that the critical facts “are remarkably similar” to a previous case in which the Supreme Court summarily reversed the Ninth Circuit.

In December 2019, twelve judges, including Owens, will dissent from the Ninth Circuit’s denial of rehearing en banc. Judge Carlos Bea’s 32-page dissent laments that “[l]ike clockwork, practically on a yearly basis since the Millennium, we have forced the Supreme Court to correct our inability to apply the proper legal standards under [AEDPA]” and credits the panel majority with taking “that tradition one step further … by re-writing AEDPA entirely.”

One year later, the Supreme Court will issue a per curiam ruling overturning the Ninth Circuit panel and slamming its shoddy reasoning.


The Latest