1990—After nearly 34 years of liberal judicial activism on the Supreme Court, Justice William J. Brennan, Jr. announces his retirement. As Jan Crawford describes it in Supreme Conflict, “For conservatives, Brennan’s retirement gave George H.W. Bush the chance of a lifetime.… It was that rare moment when a conservative president was positioned to replace a liberal giant.… It would give conservatives a dramatic opportunity to cement their majority and firmly take ideological control of the Court.” But “the president did not want the kind of bruising fight over the Supreme Court that Reagan was willing to endure.”
Five days later, President Bush will nominate David H. Souter to fill Brennan’s seat.
1993—During her thirteen years as a D.C. Circuit judge, Ruth Bader Ginsburg had never hired a single black person as a law clerk, a secretary, or an intern. Confronted with her hiring record at her Supreme Court confirmation hearing, Ginsburg doesn’t make the obvious point that simple hiring statistics are often an unreliable indicator of discriminatory intent, all the more so when the pool of qualified candidates is very limited. Instead, she absurdly suggests that the reason that she had had no black law clerks is that black candidates didn’t find the prospect of a D.C. Circuit clerkship with her sufficiently attractive.
Over the course of her 27-plus years as a Supreme Court justice, Ginsburg will hire only a single black law clerk among her more than 100 law clerks.
2020—Displaying their obstinate refusal to clean up their messes, the liberal judges on the Ninth Circuit unite to deny en banc review of two panel rulings that threaten to undermine the state-secrets privilege. The ten judges who dissent from the denial of rehearing en banc in Fazaga v. FBI decry the panel’s “untenably broad interpretation” of a statute to displace the state-secrets privilege with respect to electronic surveillance. The twelve judges who dissent from the denial of rehearing en banc in Husayn v. United States object to the “serious legal errors in the [panel] majority opinion, and the national security risks those errors portend.”
In March 2022, the Supreme Court will reverse the Ninth Circuit in both cases, in a unanimous ruling in FBI v. Fazaga and in a lead opinion by Justice Breyer in United States v. Zubaydah.
2023—Federal district judge Jennifer G. Zipps issues a preliminary injunction (in Doe v. Horne) in favor of two prepubescent boys who identify as female. Under the injunction, Arizona officials may not enforce against plaintiffs a state law that bars boys from participating on public-school sports teams designated for girls. The law, Zipps rules, violates the Equal Protection Clause: “transgender girls” are “members of a quasi-protected class,” and the law “does not withstand heightened scrutiny” (indeed, it “fails even under the rational basis test”). The law, she rules, also violates Title IX by “discriminat[ing] against Plaintiffs based on their status as transgender girls.” Never mind that the law actually disregards transgender status and instead draws a line based on sex.