2008—The California supreme court, by a vote of 4 to 3, invents a right to same-sex marriage under the state constitution. Chief justice Ronald M. George’s majority opinion offers the usual false assurances that he’s not just making it up and imposing his own policy preferences. Even more brazenly, George tries to defend his usurpation of the “people’s will” by arguing that the “provisions of the California Constitution itself constitute the ultimate expression of the people’s will.” In a sense, yes—when those provisions are faithfully and properly interpreted and applied. But not when judicial activists like George abuse them.
Six months later, California’s citizens vote to override the court’s ruling by approving Proposition 8, a measure that amends the state constitution to protect traditional marriage (but that will itself later become the victim of egregious acts of judicial activism).
2020—There they go again! Despite an extraordinary record of having its grants of federal habeas relief overturned by the Supreme Court, some Sixth Circuit judges seem unwilling to learn their lesson. In a divided panel ruling in Stermer v. Warren, the panel majority (opinion by Judge Eric Clay, joined by Judge Karen Nelson Moore) rules that a woman convicted of felony murder was entitled to relief on her claims of prosecutorial misconduct and ineffective assistance of counsel.
In dissent, Judge Jeffrey Sutton objects that there is no “plausible path for overturning Linda Stermer’s murder conviction”:
The evidence introduced in the state court trial left no doubt that she tried to burn her husband alive and ran him over with a car in the front yard of their house when that did not work. All that was missing was a film of the mariticide. None of the constitutional claims raised in her defense ever comes to grips with the reams of evidence against her. The path gets steeper and longer when one accounts for the strictures of the Antiterrorism and Effective Death Penalty Act. Today’s case, sad to say, explains why Congress felt compelled to tie the hands of federal judges in reviewing habeas claims in 1996 and why the U.S. Supreme Court should ensure that we adhere to it.