Thread by @EdWhelanEPPC

This Day in Liberal Judicial Activism—July 14
2009—In the opening day of questioning of Supreme Court nominee Sonia Sotomayor, Senate Judiciary Committee chairman Patrick Leahy tells Sotomayor that her critics “have taken a line out of your speeches and twisted it, in my view, to mean something that you never intended.” Leahy then proceeds to **misquote** Sotomayor’s notorious “wise Latina” line to eliminate the very elements of the comment that render it controversial: “You said that you ‘would hope that a wise Latina woman with the richness of her experiences **would reach wise decisions**.’”

Here’s what Sotomayor actually said (in a prepared text that was turned into a law-review article and that she repeated, in substantially similar form, on other occasions):

"I would hope that a wise Latina woman with the richness of her experiences **would more often than not reach a better conclusion than a white male who hasn’t lived that life**."

Not to be outshone by Leahy in the category of brazen mendacity, Senator Schumer accuses Sotomayor’s critics of “selectively quot[ing]” an April 2009 speech by Sotomayor “to imply that you will improperly consider foreign law and sources in cases before you.” Schumer then selectively **misquotes** Sotomayor’s speech to obscure her blanket defense of freewheeling resort to foreign and international legal materials in determining the meaning of American constitutional provisions. Sotomayor colludes with Schumer in an effort to bamboozle Republican senators and the public about her views on this controversial issue.
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This Day in Liberal Judicial Activism—July 14
2021—In an apparent effort to evade en banc review, an Eleventh Circuit panel majority (in Adams v. School Board of St. Johns County) substitutes a new and very different opinion in place of its ruling eleven months earlier, but it continues to hold that a school board violated the Equal Protection rights of a transgender student when it barred her from using the boys’ restroom.

In her majority opinion, Judge Beverly Martin purports to apply intermediate scrutiny to a bathroom policy that “categorizes on the basis of sex.” But in what Chief Judge William Pryor in dissent calls “linguistic sleight of hand,” she uses sex as a synonym for gender identity and actually objects to the disparate impact that the bathroom policy has on the plaintiff student, who, unlike other students, can’t use a multi-stall bathroom that comports with her gender identity. Martin is really insisting that the Constitution requires that transgender students be given the unique right to use whatever bathroom they prefer.

The Eleventh Circuit will vote to rehear the case en banc and in December 2022 will rule that the Constitution and federal statutory law allow public schools to have separate bathrooms for students of each of the two sexes.
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This Day in Liberal Judicial Activism—July 14
2022—In dissent (in In re Nonhuman Rights Project v. Breheny), two judges on New York’s highest court reject the majority’s holding that the common-law writ of habeas corpus is a remedy available only to human beings. They would instead allow the writ to be granted on behalf of an elephant at the Bronx Zoo. For Judge Rowan D. Wilson, the critical inquiry is whether the detention of an elephant is “so antithetical to the essence of an elephant” that relief is warranted. Judge Jenny Rivera decries the “human/nonhuman binary relied upon by the majority.”
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This Day in Liberal Judicial Activism—July 14
1983—In a separate concurring opinion (in State v. Hunt), Judge Martha Craig Daughtrey of the Tennessee Court of Criminal Appeals offers her view that the Tennessee constitution is best read as protecting obscenity. Daughtrey recognizes, alas, that the state supreme court has rejected her reading and foreclosed the path she would pursue if the question were “open for me to decide.” Ten years later, President Clinton will appoint Daughtrey to the Sixth Circuit.
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This Day in Liberal Judicial Activism—July 14
2005—By a vote of 4 to 3, the Wisconsin supreme court, in an opinion by chief justice Shirley S. Abrahamson (in Ferdon v. Wisconsin Patients Compensation Fund), rules that a statutory cap on noneconomic damages in medical-malpractice cases violates the state constitutional guarantee of equal protection (which supposedly derives from the declaration in the state constitution that “All people are born equally free and independent”).

Purporting to apply deferential rational-basis review, the majority concludes that the cap is not rationally related to the legislative objective of lowering malpractice-insurance premiums. The rational connection between caps on noneconomic damages and lower premiums ought to be obvious. Further, the dissenters complain, the majority “ignore[s] the mountain of evidence supporting the effectiveness of caps.”
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