This Day in Liberal Judicial Activism—January 21

by Ed Whelan

2014—Arch-activist Stephen Reinhardt sets the stage for the judicial invalidation of state marriage laws throughout the Ninth Circuit. Writing for a liberal panel, Reinhardt rules in SmithKline Beecham Corp. v. Abbott Laboratories that equal-protection principles prohibit discrimination based on sexual orientation in jury selection. In particular, Reinhardt construes the Supreme Court’s recent decision in Windsor v. United States to require that heightened scrutiny, rather than deferential rational-basis review, be applied to classifications based on sexual orientation that are alleged to violate equal-protection principles.

Reinhardt’s ruling reflects his usual wiliness and mischief. Reinhardt acknowledges that circuit precedent before Windsor applied rational-basis review to equal-protection challenges to classifications based on sexual orientation. He further acknowledges that Windsor did not hold what standard of review should generally apply to such classifications. But he determines that Windsor implicitly established that heightened scrutiny must be applied to equal-protection claims involving sexual orientation.

In fact, the Windsor majority’s reasoning was directed at the specifics of the Defense of Marriage Act, so it was unnecessary for the Windsor majority to adopt, explicitly or implicitly, a general level of scrutiny for classifications based on sexual orientation. Thus, Reinhardt should have ruled that the circuit precedent applying rational-basis review to equal-protection challenges to classifications based on sexual orientation remains in force.

AG Sessions Resists the Resistance

by Carrie Severino

The Supreme Court agreed yesterday to hear a challenge to the third iteration of the Trump administration’s travel ban. It had been struck down by lower courts—a Hawaii district court and affirming Ninth Circuit—that seemed to place their hostility to the president above the law, which grants the chief executive clear discretion on such matters relating to immigration and national security. Back in February 2017, after the Ninth Circuit struck down the first version of the travel ban, Eric Posner, a liberal critic of both President Trump and his policy, recognized that the courts may be creating a “‘Trump exception’ to settled law on presidential powers,” holding the current president to a different standard from that of his predecessors. He recognized this aberration from the law could come back to bite us.

One year later, it is clear that judicial resistance to this administration is alarmingly broad and almost entirely unmoored form the law. In an editorial this morning, the Wall Street Journal reports that “there have been 19 nationwide injunctions against Administration initiatives ranging from sanctuary cities to new rules on contraceptive coverage. Many of these rulings reject longstanding legal understandings or refer to Mr. Trump’s campaign statements rather than the language of the regulation.”

As a Senator and now as Attorney General, Jeff Sessions has been a fierce advocate for the rule of law and separation of powers, so it was not surprising that he directed his Justice Department to fight this new left-wing legal resistance. His office took the significant step of asking the Supreme Court to bypass the Ninth Circuit and overturn a pervasively political district court opinion that held untenably that Trump lacked authority to end the Deferred Action for Childhood Arrivals program, and the Court’s decision to grant could signal that a majority of the justices are sympathetic to his concerns.

It is highly disconcerting that so many judges have aligned with this new political “resistance,” allowing their personal views about President Trump to overcome their independence and threaten our Constitution’s separation of powers. Attorney General Sessions deserves kudos for recognizing that threat, and for directing an extraordinary team of lawyers to resist the resistance.

This Day in Liberal Judicial Activism—January 20

by Ed Whelan

1983—Eight years after the New Jersey supreme court (in Mount Laurel I) read into the state constitution an obligation on the part of each city to use its land-use regulations to “make realistically possible the opportunity for an appropriate choice of housing for all categories of people who may desire to live there,” the court (in Mount Laurel II) declares the need for “a strong judicial hand” to “rectify the ineffective [municipal] administration” of its concocted doctrine. To that end, the court invents a set of judicial “remedies” that deprive cities of the ordinary procedural rights that litigants enjoy.

This Day in Liberal Judicial Activism—January 19

by Ed Whelan

1972—The judicial takeover of school funding in New Jersey commences as state trial judge Theodore Botter rules (in Robinson v. Cahill) that New Jersey’s funding system, which relies heavily on local property taxes, violates the state constitutional provision, dating from 1875, that declares that the legislature “shall provide for the maintenance and support of a thorough and efficient system of free public schools” and also violates the equal-protection guarantees that are supposedly implicit in the state constitution and that are in the federal Constitution.

1989—Call it the Case of the Surprised Burglar. Two months after breaking up with his girlfriend, Timothy C. Hudson, armed with a knife, broke into her home during the night. The former girlfriend, having received threats from him, was spending the night elsewhere. But her roommate was at home. When she began screaming at him to leave, Hudson stabbed her to death, put her body in the trunk of her car, and dumped her in a drainage ditch in a tomato field. Hudson was convicted and sentenced to death.

In her dissent from the Florida supreme court’s affirmance of the death sentence (in Hudson v. State), Rosemary Barkett concludes that the death penalty was disproportionate to the offense—because Hudson “was apparently surprised by the victim during [his] burglarizing of [her] home.”

This Day in Liberal Judicial Activism—January 17

by Ed Whelan

2007—In a house editorial, the Los Angeles Times encourages Senate Democrats to display a “cooperative spirit” rather than “obstructionism”, and it specifically recommends that they confirm D.C. Circuit nominee Peter Keisler. But over the next two years Senate Democrats instead confirm only 10 appellate judges, and Keisler’s nomination is one of many to expire from inaction.

2014——Retired Sixth Circuit judge Boyce F. Martin Jr.’s career of zany lawlessness ends in rank public disgrace, as the Judicial Conference of the United States denies his request to keep confidential the results of a Judicial Council investigation into up to $138,500 of “questionable travel reimbursement expenses.”

By suddenly retiring in May 2013, Martin succeeded in obtaining a dismissal of the misconduct proceedings against him. But the Judicial Council decided that the public interest required disclosure of the charges against Martin.

Further, in an action that one federal judicial expert called “stunning,” the Judicial Council referred the matter to the Public Integrity Section of the Department of Justice for possible criminal prosecution of Martin.

2014—The judicial butchering of the Constitution continues. In Kosilek v. Spencer, a divided panel of the First Circuit affirms a district-court order that holds that the Eighth Amendment’s bar on cruel and unusual punishments requires the Massachusetts prison system to provide sex-reassignment surgery to a prisoner. The particular prisoner, whose legal name has been changed to Michelle Kosilek, “was born and still is anatomically male” but, suffering from gender-identity disorder, has long believed himself to be “a woman cruelly trapped in a man’s body.”

Eleven months later, the en banc First Circuit will overturn the panel ruling by a 3-2 vote.

This Day in Liberal Judicial Activism—January 16

by Ed Whelan

2002—It turns out that there are limits to the courts’ overreaching interpretations of the religious guarantees of the Establishment Clause—at least when the rights of religious conservatives are at stake.

When various religious groups sponsored an advertising campaign offering “healing for homosexuals,” the San Francisco board of supervisors sprang into action. It sent a letter to the groups “denounc[ing] your hateful rhetoric” and alleging a “direct correlation” between that rhetoric and the “horrible crimes committed against gays and lesbians,” including the brutal murder of Matthew Shepard. It also adopted two formal resolutions. One called for the “Religious Right to take accountability for the impact of their long-standing rhetoric, which leads to a climate of mistrust and discrimination that can open the door to horrible crimes such as” a recent murder. The second resolution stated that the groups’ ad campaign encouraged maltreatment of homosexuals and urged local television stations not to broadcast the groups’ ads.

In American Family Association v. City and County of San Francisco, a divided panel of the Ninth Circuit rules that the city government’s actions did not violate modern Establishment Clause doctrine. But as Judge John T. Noonan observes in dissent: “To assert that a group’s religious message and religious categorization of conduct are responsible for murder is to attack the group’s religion.… [H]ere the city had a plausible, indeed laudable purpose, to decrease vicious violence on account of sexual orientation. [But it] used a means that officially stigmatized a religious belief as productive of murderous consequences.”

This Day in Liberal Judicial Activism—January 14

by Ed Whelan

1989—“Kreimer’s odor prevents staff member from completing copying task.” So reads the day’s entry in the logbook that the Morristown, New Jersey, public library has set up to chronicle the disturbances caused by Richard R. Kreimer, a homeless man who frequently camped out in the library, was belligerent and disruptive, stared at and followed library patrons, talked loudly to himself and others, and had an odor so offensive that it prevented areas of the library from being used by patrons and from being worked in by library employees.

Some two years later, poetically pronouncing that “one person’s hay-fever is another person’s ambrosia,” federal district judge H. Lee Sarokin will rule that the library is a traditional public forum like a street or sidewalk, that the library’s policies are overbroad and vague in violation of the First Amendment, and that they violated substantive due process, equal protection, and the New Jersey constitutional guarantee of free expression. (See This Day for May 22, 1991.) The stench produced by Sarokin’s opinion will ultimately be dispelled by a unanimous Third Circuit ruling rejecting each of Sarokin’s grounds.

This Day in Liberal Judicial Activism—January 12

by Ed Whelan

1971—Justices Douglas, Brennan and Marshall dissent from the Court’s ruling (in Wyman v. James) that a state may condition a person’s receipt of benefits under the Aid to Families with Dependent Children program on that person’s permitting home visits by a caseworker. Douglas simplistically misstates the “central question” as “whether the government by force of its largesse has the power to ‘buy up’ rights guaranteed by the Constitution,” but the real difficulty comes in sorting out in a principled fashion why the answer to that overbroad question is in some circumstances yes and in others no.

Evidently oblivious to his own career of abusing power, Douglas, who clearly viewed himself as a great man, also quotes Lord Acton: “Power tends to corrupt and absolute power corrupts absolutely. Great men are almost always bad men, [especially] when you superadd the tendency or the certainty of corruption by authority.”

More Events on Scalia Speaks

by Ed Whelan

In case you’re interested: I have other upcoming book events on Scalia Speaks (and/or on Justice Scalia’s legacy) at BYU (Jan. 26), the University of Utah (Jan. 30), Charlotte (Feb. 2), Belmont Abbey College (Feb. 2), Villanova (Feb. 7), the National Constitution Center in Philadelphia (Feb. 7), Orange County (Feb. 13 and 15), Los Angeles (Feb. 14), San Diego (Feb. 16), Atlanta (Feb. 20), SMU (March 8), Georgetown (March 10), Vanderbilt (March 20), Nashville (March 20), Houston (March 21), Cincinnati (March 28), and Columbus (March 29). I will post more detailed information about these events a few days before they occur.

I’d be open to working in more events on my out-of-town trips, so contact me if you’d like to arrange something.

Jacksonville and Tallahassee Events on Scalia Speaks

by Ed Whelan

Next week I will be in Jacksonville and Tallahassee for three events on Scalia Speaks (which, in case you’ve forgotten, is the wonderful New York Times bestselling collection of Justice Scalia’s speeches that I’ve had the privilege of co-editing).

At lunchtime on Tuesday, January 16, I’ll speak to the Jacksonville lawyers chapter of the Federalist Society. Info here.

On Tuesday evening, I’ll speak to the Tallahassee lawyers chapter of the Federalist Society. Info here.

And on Wednesday, January 17, I’ll be Florida State University for a lunchtime event hosted by the law school’s Federalist Society chapter. (I’ll add a link.)

This Day in Liberal Judicial Activism—January 11

by Ed Whelan

1954—President Eisenhower nominates former California governor Earl Warren to serve as Chief Justice. Warren is already serving as Chief Justice pursuant to a recess appointment by Eisenhower in October 1953. Years later, Eisenhower will call his appointment of Warren “the biggest damned-fool mistake I ever made.” Those familiar with the legacy of Justice William Brennan, also appointed by Eisenhower, might vigorously dispute that proposition. But Eisenhower’s death in 1969 prevented him from fully comparing what he accurately labeled his two biggest mistakes.

2016—When is discrimination on the basis of sex just fine? When it operates against men to produce welcome results. Such is the lesson of the Fourth Circuit’s ruling (in Bauer v. Lynch) against an FBI trainee, Jay J. Bauer, who complained that the FBI discriminated against him on the basis of sex.

Bauer failed the FBI’s physical-fitness test (PFT) when he fell one push-up short of the minimum of 30 required for men. For women, the push-up minimum was only 14 (and the other thresholds were also easier to meet). So Bauer sued on the ground that the differential standards for men and women violated Title VII’s basic ban on discrimination on the basis of sex as well as its specific ban on the use, on the basis of sex, of “different cutoff scores for … employment related tests.” The federal district court granted summary judgment in his favor.

But the Fourth Circuit panel of Obama and Clinton appointees somehow sees things very differently. The Fourth Circuit accepts the Obama administration’s argument that the “PFT’s gender-normed standards actually require the same level of fitness for all Trainees” because “equally fit men and women possess innate physiological differences that lead to different performance outcomes.” Therefore, the PFT standards “do not treat the sexes differently.”

The Left seems to invoke “innate physiological differences” between the sexes only when doing so favors women. The “gender-normed standards,” by their very nature, “treat the sexes differently.” That is their very purpose. Further, they impose a differential “cutoff” on the basis of sex that the text of Title VII specifically forbids.

This Day in Liberal Judicial Activism—January 10

by Ed Whelan

2006—Less than eight years out of law school, Berkeley law professor Goodwin Liu submits his written testimony to the Senate Judiciary Committee opposing the confirmation of Supreme Court nominee Samuel Alito. Liu concludes his testimony with this demagogic rant:

Judge Alito’s record envisions an America where police may shoot and kill an unarmed boy to stop him from running away with a stolen purse; where federal agents may point guns at ordinary citizens during a raid, even after no sign of resistance; where the FBI may install a camera where you sleep on the promise that they won’t turn it on unless an informant is in the room; where a black man may be sentenced to death by an all-white jury for killing a white man, absent a multiple regression analysis showing discrimination, and where police may search what a warrant permits, and then some.

Nominated a mere four years later by President Obama to a Ninth Circuit seat, Liu acknowledges at his confirmation hearing only that his testimony against Alito used “perhaps unnecessarily flowery language.” Pressed further in post-hearing questions, Liu evidently finally perceives it as in his interest to offer an apology of sorts, though he can’t do so without trying to depict himself as a victim:

[U]pon rereading and reflecting on this passage in response to this question, I believe the passage is unduly harsh and provocative and does not add to the fifteen pages of legal analysis that preceded it. What troubles me most is that the passage has an ad hominem quality that is unfair and hurtful to the nominee—a reality that, in all candor, I did not appreciate then nearly as much as I appreciate now.

In May 2011, Liu will abandon his Ninth Circuit nomination after Democrat Ben Nelson joins Senate Republicans in defeating a cloture vote. But California governor Jerry Brown will then appoint Liu to the state supreme court.

This Day in Liberal Judicial Activism—January 9

by Ed Whelan

1979—In Colautti v. Franklin, the Supreme Court rules unconstitutional, by a vote of 6 to 3, a Pennsylvania statute that requires that if an abortionist determines that a human fetus “is viable” or “if there is sufficient reason to believe that the fetus may be viable,” the abortionist must (except where “necessary in order to preserve the life or health of the mother”) use the abortion technique that “would provide the best opportunity for the fetus to be aborted alive” (i.e., to survive the abortion). Justice Blackmun’s majority opinion holds that the statute’s viability benchmarks “differ[] in some indeterminate way from the definition of viability as set forth in Roe” and in one other precedent and are unconstitutionally vague.

This being abortion litigation—in which the ordinary rules somehow don’t apply—the majority doesn’t see fit to adopt a sensible interpretation of the statute that would avoid its concerns, to limit the statute to permissible applications, or to obtain the Pennsylvania supreme court’s authoritative reading of the meaning of the statute. 

JFK-appointee Byron White, in dissent (joined by Chief Justice Burger and Justice Rehnquist), argues that the statute’s language is not measurably different from Roe’s discussion of viability (“potentially able to live outside the mother’s womb”) and complains of the majority’s “unalterable determination to invalidate” the statute by its “incredible construction.”

Judicial Nominations Update

by Carrie Severino

Though 2017 saw a record number of federal circuit court judges confirmed during a President’s first year in office, the number of judicial vacancies nevertheless continues to steadily rise; the total number of current and known future vacancies jumped to 172 over the Christmas recess. And the Democratic minority continues to require cloture votes for every judicial nominee: last week Senate Majority Leader Mitch McConnell filed cloture motions for four district court nominees. The four nominees are expected to receive confirmation votes this week.

Since my last update, the number of nominees awaiting Senate floor votes has dropped from 24 to 12 as a result of 26 judicial nominations being returned to the White House at the end of the Congressional session in December. Nearly all of these nominees are expected to be re-nominated and will require another Senate Judiciary Committee vote to be moved back to the Senate floor but not another hearing.

Here is this week’s full update on federal judicial nominations.

Number of current and known future vacancies: 172

Courts of Appeals: 23

District/Specialty Courts*: 149

Number of pending nominees for current and known future vacancies: 27

Courts of Appeals: 1

District/Specialty Courts: 26

* Includes the Court of Federal Claims and the International Trade Court

Nominees Awaiting Floor Votes: 12

Courts of Appeals: 0

District/Specialty Courts: 12

Nominees Confirmed by the Senate: 19

Supreme Court: 1

Courts of Appeals: 12

District/Specialty Courts: 6

This Day in Liberal Judicial Activism—January 8

by Ed Whelan

2010—Solicitor General Elena Kagan personally assigns her deputy Neal Katyal to be part of “a group to get thinking about how to defend against inevitable challenges to the health care proposals that are pending.” Katyal promptly informs the Associate Attorney General’s office that “Elena would definitely like OSG [the Office of the Solicitor General] to be involved in this set of issues,” that he will take the lead, and that “we will bring Elena in as needed.” Two months later, with litigation impending, Kagan and Katyal consult on who should attend a White House meeting on what Katyal calls “litigation of singular importance.”

But in connection with (and presumably to facilitate) her nomination to the Supreme Court in May 2010, Kagan will nurture the notion that she had somehow (for utterly inexplicable reasons) “been walled off from Day One” from the litigation over Obamacare, and, after her appointment to the Court, she will decline to recuse herself from deciding cases arising from that initial round of litigation in which she took part. Instead, she will provide the decisive fifth vote in NFIB v. Sebelius (2012) rejecting the constitutional challenge to Obamacare’s individual mandate.

This Day in Liberal Judicial Activism—January 7

by Ed Whelan

2006—Illustrating how deeply Democratic attacks on Republican judicial nominees have descended into farce, Senator Edward M. Kennedy fulminates in a Washington Post op-ed, two days before the start of Samuel Alito’s hearing on his Supreme Court nomination, that “credibility” is a “major issue” for Alito. (See here for more.)

‘Trump’s Stellar Judges’

by Ed Whelan

My new National Review article on President Trump’s great start on judicial appointments in 2017 and on the very challenging path ahead is freely available online. A brief excerpt:

For all the justified celebration of Justice Gorsuch and these twelve new appellate judges, however, the overall picture on judicial confirmations is far from rosy. Seven vacancies on the courts of appeals have gone nearly a year without any nomination being made to fill them. The situation on district-court nominations is much worse (and has very little to do with the three recently withdrawn nominations that caused the Trump administration some embarrassment). Only six district judges were confirmed in 2017. Twenty-two nominations were left languishing on the Senate floor at the end of the year, including twelve that had been awaiting action since October. And dozens of district-court vacancies that existed on Inauguration Day still await nominees.

Two big obstacles — one at the front end of the nomination process, the other at the back end — have caused these impasses and threaten to continue to stymie judicial confirmations.

This Day in Liberal Judicial Activism—January 4

by Ed Whelan

2010—Eager to broadcast his show trial against Proposition 8 and traditional marriage, Chief Judge Vaughn Walker undertakes his third inept and illegal effort—all within the space of two weeks—to amend the local rule that bars televising of trial proceedings. Days after setting a ridiculously short period for public comment on a “proposed” revision of the local rule, Walker now purports to have amended the rule “effective December 22, 2009,” “pursuant to the ‘immediate need’ provision” of the governing federal statute. Two days later, Walker will authorize broadcast of the trial via YouTube.

But on January 13, the Supreme Court will block Walker’s broadcasting order and rule that his purported revision of the local rule was unlawful. Walker’s desire to broadcast the anti-Prop 8 trial “does not qualify as an immediate need that justifies dispensing with the notice and comment procedures required by federal law,” the Court states. Further, even if the rule had been validly revised, the anti-Prop 8 trial, given the risks of harassment of witnesses, would not be “a good one for a pilot program.” The Court rebukes Walker for ignoring the governing federal statute, for “attempt[ing] to change its rules at the eleventh hour to treat this case differently than other trials,” and for failing to “follow regular procedures.”

The Year Ahead in Judicial Appointments: Four Big Questions

by Ed Whelan

In the forthcoming issue of National Review (out tomorrow, I believe), I have an article on President Trump’s great start on judicial appointments in 2017 and on the very challenging path ahead. Reworking some of the material in my article, I present here what I regard as the four big questions on the judicial-nominations front for 2018:

1. Will a Supreme Court vacancy arise?

Your guess is as good as mine. If the rumors are true that Justice Kennedy has been looking to retire, then it seems a reasonable bet that he would do so this spring. Indeed, the very real prospect that Democrats will win control of the Senate in the November 2018 elections might clinch his decision to do so. If he waits until next year, and if Democrats take control of the Senate, his seat would probably remain empty until 2021. That’s probably not a scenario that Kennedy would welcome.

I very much doubt that any other justice is considering stepping down. But, as Justice Scalia’s death reminds us, vacancies can arise when you’re not expecting them.

If a vacancy does arise this year, the White House ought to be able to obtain Senate confirmation of an outstanding candidate. Thanks to the Senate Democrats’ foolish obstruction of the Gorsuch nomination, Senate Republicans abolished the filibuster (the 60-vote threshold for cloture) for Supreme Court nominations. So the White House will know from the outset that the next nominee will need the support of only 50 senators, plus the tie-breaking vote of Vice President Pence, for confirmation.

2. How expeditiously will Senate Judiciary Committee chairman Chuck Grassley apply his newly clarified blue-slip policy?

The committee’s blue-slip privilege accords individual senators the opportunity to approve or disapprove of judicial nominations—both appellate and district-court—in their home states. Judiciary Committee chairmen in recent decades have varied on whether a negative blue slip flatly blocks a nominee. In November, Grassley clarified that he will not treat a negative blue slip as a veto but will instead have the blue-slip process encourage consultation between the White House and home-state senators. If that consultation occurs, Grassley says that he “won’t allow senators to block nominees for political or ideological reasons.”

There are 149 existing vacancies on the federal courts and an additional 20 declared future vacancies (instances in which a sitting judge has stated an intention to step down on a date certain or upon confirmation of a successor). There are nominees for only 50 or so of those vacancies. (I’ve excluded from my count the three district-court nominations that will not be resubmitted.)

The impact of the pre-November uncertainty about Grassley’s blue-slip policy can be seen in the deep divide between nominations in red-senator states (states with two Republican senators) and those in blue-senator or purple-senator states (states with two or one Democratic senators, respectively). As this spreadsheet shows, as Christmas approached, there were 70 district-court vacancies in blue-senator or purple-senator states—including nearly 50 that existed on Inauguration Day—and a grand total of only two nominations to those 70 vacancies. (An additional nine nominations were made just days before Christmas.) There were also eleven appellate vacancies in blue-senator or purple-senator states—including five that existed on Inauguration Day—and only two nominations to those eleven vacancies.

It’s of course no surprise that the White House and individual Democratic senators couldn’t come to agreement on acceptable nominees. Grassley’s clarified blue-slip policy ought to break the stalemate and encourage the White House to make nominations that home-state Democrats haven’t precleared. The big question is how long he allows the consultation process to play out before he is willing to proceed with committee hearings and votes on nominees.

3. Will Senate majority leader Mitch McConnell find a way to break the Democrats’ blockage of floor votes on judicial nominees?

Thanks to Harry Reid’s leadership, the 60-vote threshold for cloture on lower-court (and executive-branch) nominations was abolished in 2013. But Senate Democrats have been chewing up scarce Senate floor time by routinely requiring cloture votes on all nominations. The Senate’s executive calendar at year end had over 100 nominations (executive and judicial) awaiting a floor vote. This back-end clog needs to be cleared, one way or another, if the judicial-confirmation pipeline is going to flow smoothly.

4. Will Republicans retain control of the Senate after the November 2018 elections?

Contrary to expectations of a year ago, the Senate is now viewed by many as up for grabs in the next elections. The White House and Senate Republicans will be racing against the clock to confirm as many judges as possible before November, and Senate Democrats will be doing their best to run out the clock. If Democrats win control of the Senate, judicial confirmations will grind to a halt next year. But if Republicans retain control, President Trump will have at least two more years, on top of his first two, to work to achieve a genuine transformation of the American judiciary.

Judicial Activism from the Grave

by Ed Whelan

If you thought that Ninth Circuit judge Harry Pregerson’s death in November 2017 would mark the end of his long career of liberal judicial activism, you were wrong.

In a divided panel decision issued last Friday in Hernandez v. Chappell, Judge Stephen Reinhardt added Pregerson to his opinion to create a majority ruling vacating, on habeas review, the convictions in 1983 of Francis Hernandez on two counts of first-degree murder, two counts of rape, and two counts of forcible sodomy. A footnote to the opinion states: “Prior to his death, Judge Pregerson fully participated in this case and formally concurred in this opinion after deliberations were complete.” Judge Jacqueline Nguyen, an Obama appointee, dissented.

In fairness to Reinhardt, I will note that the question whether and when a judge who has died can nonetheless take part in a court’s ruling is a contested one. As Howard Bashman noted in this How Appealing post in 2006, in two separate Third Circuit cases, a judge who had died was the author of the majority opinion.