This Day in Liberal Judicial Activism—February 2

Judge Stephen Reinhardt

2009—Ninth Circuit judge Stephen Reinhardt, acting in his administrative capacity as designee of the current Chair of the Ninth Circuit’s Standing Committee on Federal Public Defenders, opines that the federal Defense of Marriage Act is unconstitutional insofar as it requires that federal benefits available to spouses of federal employees not be extended to same-sex spouses. Disguising his administrative misdetermination as a Ninth Circuit judicial order, Reinhardt purports to direct the Administrative Office of the United States Courts to add an employee’s same-sex spouse as a beneficiary.

2017—Evidently unfamiliar with the humor of high-school yearbook editors, the Daily Mail and the New York Post trumpet a ridiculous claim that Supreme Court nominee Neil Gorsuch, while he was a high-school student, founded a student club named “Fascism Forever.”

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2018—In Hill v. Anderson, a Sixth Circuit panel, in an opinion by Carter appointee Gilbert Merritt, rules that Danny Hill is entitled to federal habeas relief because the rulings of the Ohio courts against him in 2008 and earlier were contrary to Supreme Court precedent that was clearly established at the time of those rulings. But the Supreme Court precedent that the panel relies on most heavily is from 2017—years after the state rulings. The panel tries to cover its tracks by asserting that the Supreme Court’s 2017 ruling was “merely an application of what was clearly established by” a 2002 ruling.

Less than a year later, the Supreme Court will summarily reverse the Sixth Circuit for its “plainly improper” reliance on the 2017 ruling.

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