Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 20

President Jimmy Carter at the White House, March 1977 (Library of Congress)

1978—President Jimmy Carter signs into law Public Law 95-486, which creates 35 new federal appellate judgeships (as well as 117 new federal district judgeships)—a 36% increase in the number of federal appellate judgeships. Among other things, the law raises the number of Ninth Circuit judges from 13 to 23.

With the aid of Senate Judiciary Committee chairman Teddy Kennedy, Carter will succeed in filling all those seats during his final two years in office. Carter appointees to new seats on the Ninth Circuit will include arch-activists Stephen Reinhardt, Harry Pregerson, Betty B. Fletcher, Warren J. Ferguson, and Mary M. Schroeder. Among the many judges Carter will appoint to new seats on other circuits are Abner Mikva and Patricia Wald (D.C. Circuit), Stephen Breyer (First Circuit), and Boyce F. Martin Jr. (Sixth Circuit).

 2006—Another Ninth Circuit ruling, another unanimous reversal by the Supreme Court. Fifteen days earlier, a two-judge motions panel of the Ninth Circuit, consisting of Clinton appointees A. Wallace Tashima and William A. Fletcher, had issued a four-sentence order enjoining Arizona from enforcing the voter-identification provisions of its Proposition 200 in the November 2006 election. In its per curiam reversal (in Purcell v. Gonzales), the Supreme Court observes that the Ninth Circuit panel “fail[ed] to provide any factual findings or indeed any reasoning of its own” and failed to give appropriate deference to—or even to await—the factual findings underlying the district court’s determination that a preliminary injunction was not warranted.

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