Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 23

2013—More evidence that liberal Ninth Circuit judges regard their court as the real Supreme Court: Never mind that federal law provides that habeas relief is not available with respect to claims adjudicated on the merits in state court unless the decision “was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court.” In Smith v. Lopez, a Ninth Circuit panel, in an opinion by Sidney R. Thomas, instead cites Ninth Circuit precedent after Ninth Circuit precedent as supposed support for the state of “clearly established federal law, as determined by the Supreme Court.”

One year later (in Lopez v. Smith), the Supreme Court will summarily reverse the Ninth Circuit’s grant of habeas relief. With manifest exasperation, the per curiam opinion of the Court will state that the Court has “emphasized, time and again” what the statutory text makes clear: a federal court of appeals may not rely on its own precedent to conclude that a principle of law is “clearly established.”

2022—In an attention-grabbing ruling (in West 49th St. LLC v. O’Neill), Bronx housing court judge Karen May Bacdayan purports to extend noneviction protections to those in a polyamorous relationship. Never mind that it is utterly irrelevant under the city code governing eviction whether someone seeking protection against eviction is or is not in a polyamorous relationship. And never mind that Bacdayan strains to concoct polyamory from separate relationships that the deceased tenant had with two individuals who were not friendly with each other. Bacdayan won’t let the law or the facts get in the way of being a judicial pioneer on the untamed frontier of polyamory.

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