Bench Memos

Law & the Courts

Judge Kim McLane Wardlaw Makes Her Mark

When the Supreme Court summarily reverses a lower court’s ruling—that is, when it reverses without seeing any need for briefing on the merits and oral argument—that’s ordinarily* quite a black mark for the judge who authored the opinion below. Most federal appellate judges go through their entire careers without such a summary reversal.

And then there’s Ninth Circuit judge Kim McLane Wardlaw (appointed to that court by President Clinton).

The Supreme Court’s unanimous summary reversal two weeks ago in Kernan v. Cuero marks at least the fourth such reversal of a Wardlaw ruling, on top of those in McDaniel v. Brown (2009), Whitman v. Dep’t of Transportation (2006), and Gonzales v. Thomas (2006). It’s almost as if she’s deliberately competing against her colleague Stephen Reinhardt for the Lifetime Summary Reversal Award. (My thanks to the reader who called Wardlaw’s feat to my attention.)

Perhaps not coincidentally, one feature that three of the four Wardlaw rulings share is that Judge Diarmuid F. O’Scannlain—one of the few very bright spots on a dismal court—was in dissent.

* I say ordinarily because there might be instances when the judge below is compelled by badly mistaken circuit precedent to rule as he did.

Ed Whelan — Ed Whelan is a leading commentator on nominations to the Supreme Court and the lower courts and on issues of constitutional law.

Most Popular

U.S.

Two Minnesota Republican Candidates Assaulted

Two Republican candidates for state office in Minnesota have been physically assaulted in recent days, leading prominent Republican lawmakers to caution their Democratic colleagues against employing inflammatory rhetoric. Republican state representative Sarah Anderson was punched in the arm last week after ... Read More
PC Culture

Warren Is a Fraud

Senator Elizabeth Warren (D., Mass.) has been telling a story for years. It’s a deeply romantic story about her parents and their young love, fraught with the familial bigotry of an earlier time. Here’s how she told it this week in a video she released in preparation for her 2020 run: My daddy always said he ... Read More
Elections

The State of the Race for the House

Way back in January, I went through the then-34 seats where a Republican incumbent was retiring and concluded that most were in deeply red districts and not likely to flip to Democrats. Pollsters and media organizations are less inclined to conduct surveys of House races, both because there’s less public ... Read More