Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 6

2000—Liberal judicial activists eagerly seize opportunities to expand unsound or dubious precedents. In 1971, the Supreme Court had ruled in Bivens v. Six Unknown Federal Narcotics Agents that the Constitution confers a claim for damages against a federal agent for allegedly unconstitutional conduct. Writing for a Second Circuit panel in Malesko v. Correctional Services Corp., Judge Sonia Sotomayor rules that a Bivens claim may also be made against a private corporation acting under color of federal law.

One year later, the Supreme Court will reverse the Second Circuit ruling by a 5-4 vote.

2017—Senior federal district judge Barbara B. Crabb rules (in Gaylor v. Mnuchin) that the exclusion of housing allowances from ministers’ taxable income violates the Establishment Clause.

In March 2019, a unanimous panel of the Seventh Circuit will reverse Crabb. The panel will observe (among other things) that the exclusion “is simply one of many per se rules that provide a tax exemption to employees with work-related housing requirements” and that it comports with “a lengthy tradition of tax exemptions for religion, particularly for church-owned properties.”

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