1994—D.C. Circuit chief judge Abner J. Mikva resigns from the court in order to pursue what for him might be a less political position—White House Counsel to President Clinton. A member of Congress when appointed to the D.C. Circuit by President Carter in 1979, Mikva transported his policymaking to the bench. As chief judge, he was widely blamed for destroying the collegial atmosphere on the D.C. Circuit through his partisan posturing and maneuvering. Here are a couple of examples of Mikva’s creative opinions:
In Community for Creative Non-Violence v. Watt (1983), Mikva authored the lead opinion in a 6-5 en banc ruling holding that the National Park Service’s no-camping regulations for the national Mall and Lafayette Park could not be enforced against demonstrators who were seeking to sleep in those parks in order to call attention to the plight of the homeless. In Judge Mikva’s view, the regulations violated the demonstrators’ First Amendment speech rights. A dissenting judge by the name of Scalia, joined by a fellow named Bork, disputed the notion that “sleeping is or can ever be speech for First Amendment purposes.” On review, the Supreme Court (in Clark v. Community for Creative Non-Violence) rejected Mikva’s conclusion by a 7-2 vote.
In Steffan v. Perry (1993), Mikva, purporting to apply rational-basis review, wrote a panel opinion ruling that Department of Defense Directives excluding homosexuals from military service could not constitutionally be applied to someone who had identified himself as a homosexual but who had not been shown to have engaged in homosexual conduct. In Mikva’s judgment, it was irrational for the Department of Defense to employ the rebuttable presumption that (in Mikva’s summary) “a person who, by his own admission, ‘desires’ to engage in homosexual conduct has a ‘propensity’ to engage in repeated homosexual conduct.” One year later—after Mikva’s resignation—the en banc D.C. Circuit reversed Mikva’s ruling (with three judges dissenting).
1996—A Ninth Circuit panel rules (in Federation of African American Contractors v. City of Oakland) that the Civil Rights Act of 1991 creates an implied cause of action against state actors under section 1981 of Title 42. According to the panel, the 1991 law statutorily overruled the Supreme Court’s 1989 decision in Jett v. Dallas Independent School District, which held that section 1983 of Title 42 provides the exclusive federal remedy against municipalities for violation of the civil rights guaranteed by section 1981.
Some twenty-seven years later, in July 2023, an en banc Ninth Circuit panel (in Yoshikawa v. Seguirant) will unanimously reject the 1996 ruling and instead join its “sister circuits [that] have uniformly held that Jett remains good law.” In a separate opinion, Judge Daniel P. Collins will observe that the 1996 ruling “has no basis in the statutory text, is inconsistent with current Supreme Court doctrine concerning the recognition of implied causes of action, and has been rejected by every other circuit to consider the question.”