Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—May 31

1990—In an otherwise insignificant case (Shriners Hospitals v. Zrillic), Florida chief justice Rosemary Barkett, completely botching case law governing the federal Equal Protection Clause, asserts that “underinclusive or overinclusive classifications fail to meet even the minimal standards of the rational basis test” and, on that misunderstanding, invalidates a six-month statutory time period. There is, she says, “no rational distinction” between a period of “five months and twenty-eight days” and a period “a few days longer.” Somehow that same insight escaped her in a separate case (LeCroy v. State) in which she concluded that the Constitution imposes a bright-line age minimum for offenses that can result in the death penalty.

Barkett’s proposition would go far towards transforming supposedly deferential rational-basis review into strict scrutiny and thus invites judicial activism. Indeed, because it is difficult to imagine that the review would be applied consistently (few laws would survive if it were), her approach would lead to arbitrary and selective application. (In 1994, President Clinton appoints Barkett to the Eleventh Circuit.)

2017—A sharply divided limited en banc panel of the Ninth Circuit rules (in U.S. v. Sanchez-Gomez) in favor of four criminal defendants who challenged a court’s policy of routinely having pretrial detainees shackled for pretrial proceedings. In his six-judge majority opinion, Judge Alex Kozinski concludes that the challenges are not moot even though the defendants’ cases have ended because the defendants were seeking “class-like relief” in a “functional class action.” The majority opinion further holds that the court’s policy violates the Fifth Amendment.

In her five-judge dissent, Judge Sandra Ikuta complains that majority “ignores Article III’s limitations on federal judicial power, conjures up an unsupported and unprecedented exception to mootness, chastises district judges for following our case law, brushes aside inconvenient Supreme Court reasoning, creates an unjustifiable circuit split, and discovers a one-size-fits-all courtroom security policy in the Constitution.”

Less than a year later, a unanimous Supreme Court will agree with Ikuta that the case should have been dismissed on grounds of mootness. Even the defendants who brought the challenge decline to defend the Ninth Circuit’s reasoning.

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