1962— President Kennedy’s appointment of Arthur Goldberg to replace the retiring Felix Frankfurter creates a clear liberal activist majority on the Supreme Court. As Seth Stern and Stephen Wermiel write in Justice Brennan:
Goldberg’s arrival meant that Brennan did not need to accommodate [Byron] White’s concerns [of judicial restraint]: the bloc had its fifth vote without him. After the very first Friday of the term, Brennan came back to his chambers with a look of triumph on his face—a look he would keep all term.
2018—Federal district judge Emmet G. Sullivan rules (in Blumenthal v. Trump) that individual members of the United States Senate and House of Representatives have standing to pursue their claim that President Trump has violated the Foreign Emoluments Clause of the Constitution.
In February 2020, an ideologically diverse D.C. Circuit panel will reject Sullivan’s ruling on the ground that it conflicts directly with Supreme Court (as well as circuit) precedent.
2020—In a divided panel ruling (in N.H. v. Anoka-Hennepin School District No. 11), a Minnesota appellate court rules that a girl, N.H., who identifies as male must be allowed to use the changing and showering facilities in the boys’ locker room. According to the majority, N.H. “is similarly situated to other [sic] males because [N.H.] identifies as male.”
2022— In the world of liberal judicial activism, every bad opinion provides an opportunity to make things worse. So it is that a divided Ninth Circuit panel, building on the court’s badly misguided ruling in 2018 in Martin v. City of Boise, rules in Johnson v. City of Grants Pass that the district court properly certified a plaintiff class of involuntary homeless persons and that the City of Grants Pass violated the Eighth Amendment when it enforced its anti-camping ordinances against the plaintiffs.
In dissent, Judge Daniel P. Collins complains that the panel majority “both misreads and greatly expands Martin’s holding” and “then combines its gross misreading of Martin with a flagrant disregard of settled class-certification principles.”
The Ninth Circuit will deny en banc review in July 2023, but seventeen judges—three of them in senior status, including Clinton appointee Susan Graber—will express their strong disagreement with the panel ruling. Here’s how Judge Diarmuid O’Scannlain opens his opinion:
“With this decision, our Circuit’s jurisprudence now effectively guarantees a personal federal constitutional ‘right’ for individuals to camp or to sleep on sidewalks and in parks, playgrounds, and other public places in defiance of traditional health, safety, and welfare laws—a dubious holding premised on a fanciful interpretation of the Eighth Amendment. We are the first and only federal circuit to have divined such a strange and sweeping mandate from the Cruel and Unusual Punishments Clause. Our jurisprudence in this case is egregiously flawed and deeply damaging—at war with constitutional text, history, and tradition, and Supreme Court precedent. And it conflicts with other circuits on a question of exceptional importance—paralyzing local communities from addressing the pressing issue of homelessness, and seizing policymaking authority that our federal system of government leaves to the democratic process.”
In June 2024, the Supreme Court, by a vote of 6 to 3, will reverse the Ninth Circuit panel decision’s in Grants Pass and repudiate Martin.