Law Professors Say the Darnedest Things - Part 15,312 :: 12/24/2019

This Politico article on how President Trump’s appointments have changed the composition of the Ninth Circuit presents example after example of how that court “has been the go-to venue for activist state attorneys eager to freeze Trump policies on health care, immigration, and other social issues.” That, of course, is consistent with the decades-long reputation that the Ninth Circuit has earned as a bastion of liberal judicial activism—of judges in the mold of the late Stephen Reinhardt who override democratic enactments in pursuit of their own vision of the good.

So it was very amusing to find this passage near the end of the article:

“The asymmetry [in temperament] is what causes the problem,” said Jon Michaels, a UCLA law professor. “We have a quite forceful right flank, buttressed by a left flank that prizes judicial humility and judicial modesty.” [Emphasis added; brackets in original.]

Ah, yes, the “left flank” of the Ninth Circuit “prizes judicial humility and judicial modesty”!?! Reinhardt himself, who boasted that the Supreme Court “can’t catch them all”—that is, couldn’t reverse all of his mischief—and who celebrated the “expansive and humanitarian philosophy of the Warren/Brennan court,” would have scorned and ridiculed the proposition. And while they are less outspoken than Reinhardt was, the ten or so judges on the Ninth Circuit who were steadfast allies of his likewise can’t plausibly be depicted as champions of “judicial humility and judicial modesty.”

If I’m understanding it correctly, Professor Michaels’s claim that the Ninth Circuit has “a quite forceful right flank” means that its conservative judges supposedly have demonstrated a willingness to override democratic enactments in pursuit of a conservative agenda. Hmmm. I have no idea what Michaels might have in mind. The examples that the article provides of the new conservative influence on the Ninth Circuit involve deferring to the democratic processes, not overriding it. To be sure, I do not dispute the prospect that there might be some areas—religious liberty, racial preferences, and the Second Amendment are some possible examples—in which conservative Ninth Circuit judges will, applying Supreme Court precedent, override democratic enactments. But the idea that a broad pattern already exists, and that the left of the Ninth Circuit appears humble and modest by comparison, strikes me as beyond baseless.

Similarly, the article quotes Chris Kang of Demand Justice as claiming that “Republicans politicize the judiciary so they can accomplish policy goals that they wouldn’t be able to do through the democratically elected branches of government.” But, again, as the article shows, what the Left really objects to is that the conservative judges on the Ninth Circuit will be far more likely to defer to the “democratically elected branches of government.”

(The article, by the way, wrongly states that the Senate has confirmed nine Trump nominees to the Ninth Circuit; the correct number is ten. It also misidentifies the circuits that Trump has flipped to a majority of Republican appointees; those circuits are the Second, Third, and Eleventh, not the First and Eleventh.)

https://www.nationalreview.com/bench-memos/law-professors-say-the-darnedest-things-part-15312/