This Day in Liberal Judicial Activism—February 14

by Ed Whelan

1997—Ninth Circuit judge Betty B. Fletcher dissents from the panel ruling in Philips v. Perry upholding an application of the military’s so-called “don’t ask, don’t tell” policy (implementing the nearly identical federal statute governing homosexuals in the military). Purporting to apply deferential rational-basis review, Fletcher rejects the government’s argument that the policy reasonably promotes unit cohesion and concludes that it violates the federal constitutional guarantee of equal protection.

2000—In dissent in Rucker v. Davis, Ninth Circuit judge William A. Fletcher (and son of fellow Ninth Circuit judge Betty B. Fletcher) opines that a local public housing agency may not evict a tenant on the basis of drug-related criminal activity engaged in by a household member if the tenant is not aware of the criminal activity. Never mind that the lease provision required by governing law provided that “any drug-related criminal activity on or near such premises, engaged in by a public housing tenant [or] any member of the tenant’s household … shall be cause for termination of tenancy.” According to Judge Fletcher, the categorical express language of the lease provision was “silent” as to “innocent tenants”. Well, yes, it was “silent” in the sense that they were not specifically addressed since they plainly fell within the broader language.

The Ninth Circuit, insistent on being the Ninth Circuit, grants rehearing en banc and by a vote of 7 to 4 (with all members of the majority being, surprise!, Carter and Clinton appointees) embraces Judge Fletcher’s position.

Alas for Judge Fletcher, the Supreme Court grants review and, in a unanimous opinion issued in 2002—a mere five weeks after oral argument—rules that the statutory language “unambiguously requires” the very result that Judge Fletcher determined was prohibited. (The Supreme Court case is styled Department of Housing and Urban Development v. Rucker.)

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