Why Wood and Sotomayer Won't be Activist Enough . . . for the Right

Should the Supreme Court ban a repeat pedophile from city parks on the basis of the individual's thoughts? Slate's Emily Bazelon takes a look at this very question as it pertains to Diane Wood, a Clinton appointee to the 7th Circuit U.S. Court of Appeals and potential nominee to the Supreme Court.

To be clear, the case is not before the Supreme Court, nor is it scheduled to be. But in Doe v. City of Lafayette, in 2004, Wood joined a dissent that may mark her for targeting should she get the nod from Obama. Basically, Wood declared the banning of John Doe from city parks an infringement on Doe's First Amendment rights, since he was banned based on his thoughts, rather than his actions. (Doe's thoughts were made public after he caught himself wanting to molest a child, but he turned around and called his therapist instead. The therapist, concerned about the possibility of criminal behavior, called the authorities.)

Wood's dissent, along with Judge Ann Williams, who wrote the minority opinion, did not prevail. The ban was upheld. The article points out, in the end, that had the case been about dangerousness, then there likely would not have been a dissent. John Doe appears as a high risk to public safety.

[I]n other settings, the law does allow for punishment based on future dangerousness. In 2000 and 2002, the Supreme Court twice upheld a Kansas law that provides for the civil commitment of a convicted sex offender, after he has finished serving his criminal sentence, if a court finds that he "cannot control his dangerous behavior." The majority opinion in the Doe case relied on those Supreme Court rulings. When I called Yale law professor Robert Post, a First Amendment scholar, he brought up the Kansas law, too. "If you can be kept in jail because of future dangerousness, why couldn't you be kept out of a park?" Post said. "It's a mischaracterization to say this has anything to do with this man's thoughts. The case should be decided on the basis of his dangerousness."

Emphasis mine. That's how the case was decided, but Wood's position suggests that it actually shouldn't have been. Because Doe was brought as a First Amendment challenge, Wood's dissent suggests that the court had an obligation to treat the case as such. "By way of comparison, courts would not sanction criminal punishment of an individual with a criminal history of bank robbery (a crime, like child molestation, with a high rate of recidivism …) simply because she or he stood in the parking lot of a bank and thought about robbing it."

Bazelon's point is not to determine whether Wood's dissent was the right opinion to air, but to cast Wood as an excellent candidate who could cause the White House considerable angst were she nominated, precisely because she chose not to extend the role--and rule--of government from the bench. By dissenting, Wood refused to support the judicial activism that had played out at the state level.

One of the things I find most interesting about the discussion, however, is not about the thorny nature of the Doe case at all. There seems to be a narrative pattern emerging--albeit prematurely, given the absence of a nominee--that the right will target judges who don't take activist stances on particular issues, even though the right is screaming already about the risk of activist judges. Matt Yglesias makes the observation about short-lister Sonia Sotomayor, too. Yglesias points to Richard Cohen and others who say Sotomayer should have intervened from the bench when the issue at hand was affirmative action in Ricci v. DeStefano, in 2008. Instead, she sided with the majority to let the state decision stand. That case went to the Supreme Court and was heard last month.

In these two instances, Bazelon and Yglesias make the point that, really, there are some issues for which the right advocates for judicial activism. In other words, if Obama nominates a so-called activist judge, he'll get reamed. And if he doesn't nominate an activist (when he should, according to the right), he'll get reamed. Nice trick, huh?