Tuesday, November 26, 2013

Meet the Worst Judge in America


To some, the answer may seem a no-brainer. The worst judge has to be one whose last name is Scalia, Thomas or Alito—the three jurisprudential horsemen of the right-wing apocalypse unfolding term by term at the Supreme Court. 

To others, the search for the worst may extend beyond the nation’s highest tribunal to the lower rungs of the national judiciary.

Perhaps the worst is Judge Priscilla Owen of the 5th U.S. Circuit Court of Appeals, who specialized in representing oil and gas industry interests as an attorney in Houston and was appointed to the federal bench by George W. Bush in 2001. Owens authored the recent 5th Circuit opinion overturning a lower court ban on a provision of the new omnibus Texas abortion law that requires doctors performing the procedure to have admitting privileges at a local hospital.

Or perhaps the search should range even more widely and focus on federal District Court trial judges, such as Loretta A. Preska, the New York-based jurist who recently sentenced Anonymous-affiliated activist Jeremy Hammond to a 10-year prison term, possibly the harshest penalty ever imposed for the offense of computer hacking.

All of the above would be excellent choices. My nominee, however, is Judge Diane S. Sykes, who sits on the 7th Circuit, which covers the states of Illinois, Indiana and Wisconsin, and is headquartered in Chicago.

In a 154-page split 2-1 decision handed down Nov. 8, Sykes authored the majority opinion in which she invoked the doctrine of corporate personhood—which she characterized as being “reinvigorated” by the Supreme Court’s Citizens United decision on campaign finance law—to invalidate the contraception mandate of Obamacare. How she managed to do so was nothing short of an exercise in judicial fantasy rivaling the most unhinged of Antonin Scalia’s rants against gay marriage, albeit without his flare for vitriol. 

The Obamacare case came before Sykes as a consolidated appeal involving separate complaints filed against Health and Human Services Secretary Kathleen Sebelius by an Illinois construction company with 90 full-time employees and an Indiana manufacturer of safety and lighting systems operating both in this country and abroad with 464 full-time U.S. employees. 

The Catholic owners of both closely held businesses argued that Obamacare’s mandate requiring inclusion of contraception benefits in their employee health care plans violated both the individual owners’ and the companies’ constitutional and statutory rights to the free exercise of religion.

Despite the fact that both businesses engaged in for-profit activity, Sykes concluded, citing Citizens United, that the term “person” includes corporations and as such, the businesses were “persons” whose religious rights not to practice or promote birth control were protected under the Constitution and an obscure piece of legislation—the Religious Freedom Restoration Act of 1993, a Clinton-era statute designed to protect religious liberty. Never mind that nothing about Obamacare forces anyone to practice birth control. Still, under Sykes’ ruling, if the employees of either company wanted contraception services, they had better look elsewhere.

In a pointed dissent, Judge Ilana Rovner wrote that Sykes’ opinion represented “an unprecedented and unwarranted re-conception of … what the free exercise of religion entails,” transferring “a highly personal right to a secular corporation” via “a man-made legal fiction.”

If the Obamacare ruling had been Judge Sykes’ first foray through the right-wing judicial looking glass she would hardly have made the final cut in the contest for the nation’s worst judge. But the Obamacare case is only one of many.

A Bush appointee to the 7th Circuit, the 56-year-old Sykes is the former spouse of Milwaukee right-wing radio personality Charlie Sykes and a prominent member of the Federalist Society. 

As a state judge in Milwaukee County, she presided over a 1993 case in which two protesters with long rap sheets were found guilty of blocking access to a reproductive health facility. 

Compelled by law to impose brief jail terms, Sykes went out of her way during sentencing to praise the defendants for having “the courage of [their] convictions and for the ultimate [anti-abortion] goals” they sought to further.


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