2005—A front-page Washington Post article reporting on the release of Reagan-administration documents relating to Supreme Court nominee John Roberts carries the inflammatory headline, “Roberts Resisted Women’s Rights.” In fact, the documents show merely that Roberts had combated highly controversial leftist proposals involving gender quotas and comparable worth.
2020—In a divided Ninth Circuit panel ruling in Kipp v. Davis, the majority (opinion by Judge Richard A. Paez, joined by Judge Mary H. Murguia) grants federal habeas relief that reverses Martin Kipp’s conviction and death sentence in state court 33 years ago for first-degree murder and attempted rape. In dissent, Judge Jacqueline Nguyen objects that the majority circumvents the deference to state-court decisions required by the Antiterrorism and Effective Death Penalty Act.
Months later, the Ninth Circuit will deny en banc rehearing by a vote of 15 to 14. Nguyen and her fellow Obama appointee John B. Owens will join twelve Republican appointees in voting for en banc review.
2021—In Camelot Banquet Rooms v. U.S. Small Business Administration, federal district judge Lynn Adelman enjoins the SBA from excluding live adult-entertainment businesses from eligibility for a loan program. The statutory exclusion that the SBA applies, Adelman concludes, is an “attempt to suppress a dangerous idea” and not rationally related to a legitimate government purpose.
A unanimous Seventh Circuit panel, in an opinion by Obama appointee David Hamilton, will reverse Adelman. Under established First Amendment doctrine, prurience is not a viewpoint that the government may not discriminate against, but a category of expressive conduct that may be subject to some regulation. And Adelman “applied an erroneous and unduly rigorous form of judicial review, second-guessing legislative decisions and compromises on policy grounds.”