By Bill Blum
[...]
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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