Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 3

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

1979—Give Harry Pregerson credit for candor. At the Senate Judiciary Committee hearing on his nomination to a Ninth Circuit seat, Pregerson is asked what he would do “if a decision in a particular case was required by case law or statute … yet that [decision] offended your own conscience.” Pregerson responds: “I would try and find a way to follow my conscience and do what I perceived to be right and just.” (No, he isn’t talking about recusing.)

Over the ensuing four decades up to, and even beyond, his death in November 2017, Pregerson, though less flamboyantly outspoken than his colleague (and fellow Carter appointee) Stephen Reinhardt, will prove himself nearly Reinhardt’s match in his feats of lawless judicial activism.

2013—“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

A sound observation, to be sure. But what’s remarkable is that the person uttering it is Justice Anthony Kennedy, who throughout his tenure on the Supreme Court has done as much as any justice to intrude willy-nilly on the democratic processes on the “most serious issues of the day.”

2018—Federal district judge Edward Chen issues a preliminary injunction barring the Department of Homeland Security from implementing its decisions to terminate its Temporary Protected Status designations for Sudan, Nicaragua, Haiti, and El Salvador. Never mind that the statute governing TPS designations specifically provides: “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Never mind that these supposedly temporary designations had been in place for many years (since 1997 for Sudan). Never mind that DHS had determined that the conditions that initially justified the designations no longer existed.

In September 2020, a divided panel of the Ninth Circuit will vacate Chen’s injunction.


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