Ninth Circuit judge tees off on colleagues’ environmentalism

As green czars go, the powers of the Environmental Protection Agency and its administrator are at least circumscribed by law, the powers of the Ninth Circuit U.S. Court of Appeals much less so. When a majority of the circuit ruled the other day that California could not resume permitting suction panning of riverbeds for traces of gold, Judge Milan Smith Jr. along with three colleagues dissented with some asperity. “Here we go again,” he began, and went on to cite Gulliver bound by the Lilliputians. To quote the WSJ Law Blog:

No legislature or regulatory agency would enact sweeping rules that create such economic chaos, shutter entire industries, and cause thousands of people to lose their jobs. That is because the legislative and executive branches are directly accountable to the people through elections, and its members know they would be removed swiftly from office were they to enact such rules,” he wrote.

“Unfortunately,” he added, “I believe the record is clear that our court has strayed with lamentable frequency from its constitutionally limited role.”


  • Smith’s charge that the world would be a better place if judges were “directly accountable to the people through elections” might be true in some cases, but it would fail in many more. Putting civil rights in the hands of someone who is beholding the majority of voters doesn’t sound like a good idea.

  • Justice system should be about justice, law and fair treatment, not a popularity contest. Elections influence criminal system – the sentences are higher in the elections year.

    Whether an action broke a law is not the same thing as whether it is a good public policy to allow that action. Nor it is the same thing as whether people like it to be legal. Elected judges care less about the former and more about the latter.

  • Interesting stuff but I think it’s much ado about nothing. What the Mayor is doing is mostly banning 64 ounce cups, not drinks. I have an insulated 64 ounce mug that I refill with ice and soda every day. I was amazed to discover that if I bought a 16 ounce coke and poured it in my already full of ice cup the 16 ounces fills it nearly to the top. I doubt anyone is actually drinking 64 ounces of anything.

  • if judges were to enforce the law, rather than write it, having elected judges would be a bad thing. But what the 9th is doing is writing law, something they’re of course not legally allowed to do but no one is seemingly even trying to stop them, and that is (or should be) the sole responsibility of elected bodies.

  • All hail our black-robed masters!

  • Judges can be impeached. And…”Article III of the United States Constitution, Section 1, which says that federal judges hold office during good behavior.”
    That ‘good behavior’ is important. And if they are abusing their power, overstepping their bounds, that is ‘bad’ behavior.
    “Good behavior is not only a standard, but it is also a remedy that’s available to us for judges who are usurping, particularly usurping legislative power.”
    So, one has to wonder why this remedy isn’t used.