Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—November 20

(Pixabay)

2018—In the course of applying the Supreme Court’s existing abortion regime to enjoin a Mississippi law that prohibits abortions after fifteen weeks of gestation, federal district judge Carlton W. Reeves can’t refrain from littering his opinion (in Jackson Women’s Health Organization v. Currier) with various injudicious and ill-considered remarks. He contends, for example, that the Mississippi legislature’s professed interest in women’s health “is pure gaslighting” and that the law he is reviewing “is closer to the old Mississippi—the Mississippi bent on controlling women and minorities.” He similarly opines that “[t]he fact that men, myself included, are determining how women may choose to manage their reproductive health is a sad irony not lost on the Court.” 

Reeves seems not to have contemplated that many women in Mississippi supported the law that he enjoined, or that the legality of abortion is a matter susceptible to moral reasoning by men and women, or that a permissive abortion regime might well multiply the instances in which a pregnant woman experiences “anxiety and turmoil.”  

This case, styled Dobbs v. Jackson Women’s Health Organization, is now pending in the Supreme Court.  

2020—Never mind the Supreme Court’s warning just three years earlier that “expanding the Bivens remedy” (i.e., judicial invention of an implied damages remedy for the violation of a constitutional right) “is now a ‘disfavored’ judicial activity.” In his opinion for a unanimous Ninth Circuit panel in Boule v. Egbert, Judge William Fletcher extends Bivens to two new contexts, one involving the First Amendment and the other involving the Fourth Amendment near the national border.  

In May 2021, twelve judges (including one Democratic appointee) will dissent from the Ninth Circuit’s denial of en banc rehearing.

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