The Corner

Supreme Court Candidate Diane Wood

Kathryn:  I’d be wary of reading too much into rumors that U.S. marshals have been assigned to Seventh Circuit judge, and Supreme Court candidate, Diane Wood. But since you’ve kindly highlighted my posts on Wood, let me offer this summary:

Wood is a hard-left judicial activist and aggressor on culture-war issues:

·     Wood is clearly ready to invent a constitutional right to same-sex marriage:  “The right not to have the State prescribe a set of acceptable spouses, in the absence of the kind of powerful reason it would have for incest laws or laws designed to protect children, is implicit in the concept of liberty.”  (Wood, “Reflections on the Judicial Oath” (8 Green Bag 2d 177, 184 (2005).)


·     Wood evidently believes that the inclusion of “under God” in the Pledge of Allegiance violates the Establishment Clause and that a Supreme Court ruling permitting that phrase would “announce that the United States is a nation that has adopted monotheism as its official state dogma.”  (See my Part 5 post, point 3 here.)


·    Wood believes that it’s proper for the Supreme Court to revise the meaning of constitutional provisions to reflect contemporary international and foreign practices. (See my Part 5 post, point 2.) As Harold Koh’s transnationalism shows, that approach threatens cherished First Amendment rights of free speech and religion at the same time that it leads to the invention of new rights that entrench the agenda of international leftist elites.


·     No judge whom I’m aware of is more extreme than Wood on abortion. Her defiance of the Supreme Court’s mandate in NOW v. Scheidler (and her incurring successive 8-1 and 8-0 reversals by the Court) ought alone to be disqualifying. In addition, Wood has (in dissent) voted to strike down state laws banning partial-birth abortion and (again in dissent) voted to strike down an Indiana informed-consent law that was in all material respects identical to the law upheld by the Supreme Court in Planned Parenthood v. Casey.

Wood is aggressive in pursuing her ideological agenda. Her willful lawlessness on remand in NOW v. Scheidler is the starkest example. But consider also her behavior at oral argument in a case presenting the question whether a law school violated the rights of a Christian Legal Society chapter by revoking its official status as a student organization because of the chapter’s membership policies. Wood viciously maintained that the CLS chapter viewed homosexuals as “less than fully human,” conspicuously turned her back on CLS counsel as he explained CLS’s orthodox Christian beliefs, and turned back around to exclaim “Goodness!” 

In his Notre Dame speech last week, President Obama encouraged “fair-minded words” and opposed “reducing those with differing views to caricature.” That’s hardly what Wood’s conduct in the CLS case demonstrates.

More broadly, President Obama says that he wants to find “common ground” on abortion and other culture-war issues, and he says that he opposes same-sex marriage. If so, he wouldn’t nominate Diane Wood to the Supreme Court.

(For more detail on Wood, see my Parts 1, 2, 3, 4, and 5 and this post on Jeffrey Rosen’s praise for Wood.)


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