This Day in Liberal Judicial Activism—April 29

1998—The Ninth Circuit’s hijinks in blocking the execution of Thomas M. Thompson for a 1981 rape and murder come to an end, with the Supreme Court’s 5-4 ruling in Calderon v. Thompson. Justice Souter’s dissent is joined by Justices Stevens, Ginsburg, and Breyer.

2005—In a precious 13-page “open letter,” law professor Laurence Tribe discloses that he has decided to abandon his plans to complete the second volume of the third edition of his treatise on constitutional law. No, the dog didn’t eat his drafts. Rather, Tribe grandiosely explains, he has “come to the realization that no treatise, in my sense of that term, can be true to this moment in our constitutional history—to its conflicts, innovations, and complexities.”

Among other things, Tribe tells the reader, “[t]here is an emerging realization that the very working materials of American constitutional law may be in the process of changing.” For example, “contemporary developments in Islamic constitutional thought, the windows already opening or soon to be opened to us by the work of the supreme courts of Israel, India and South Africa, and our imminent appreciation of Chinese counterparts—all this may well work a great change in the starting points and sensitivities of American constitutional scholars.” Ah, yes, of course.

2024—“Imperial judging at its least defensible.” That’s Judge J. Harvie Wilkinson’s damning assessment of the Fourth Circuit en banc majority’s ruling in Kadel v. Folwell.

By a vote of 8 to 6, the Fourth Circuit rules that health-care plans in North Carolina and West Virginia that (in the majority’s words) “cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients” violate the Equal Protection Clause. In other words, the Constitution somehow requires that a health-care plan that covers a double mastectomy for breast cancer must also cover a double mastectomy as treatment for gender dysphoria.

Wilkinson asks: “Why the rush to constitutionalize? Why the dash to create a substantive Fourteenth Amendment right to transgender surgery and treatment underwritten by the State?”