Judge Diane Wood — more case studies

Even though Judge Wood reached the correct, non-empathetic result in the Ameritech case (as discussed here), she did not distinguish herself through her reasoning. Moreover, Ed Whelan has identified several other cases in which he found Judge Wood’s reasoning to be sloppy and/or well wide of the mark.

In Hinrichs v. Speaker of the House, 506 F.3d 584 (7th Cir. 2007), Wood wrote a “dissent” in which she concluded that, contrary to the view of the panel but in agreement with the District Court decision under review, the plaintiffs had standing to seek a permanent injunction, on Establishment Clause grounds, against the Indiana House of Representatives’ practice of legislative prayer. However, she did not then proceed to the merits to determine whether she would affirm the district court’s injunction, reverse and vacate it, modify it, or take some other action.

As Ed explains:

If she were to reverse the injunction on the merits, her opinion, rather than being a straight dissent, would be an opinion concurring in the judgment in part (in its reversal of the district court) and dissenting in part (from the remand instructions). In other words, Wood never completed her appellate review of the district court’s order, and she thus didn’t do the work necessary to render her opinion a dissent.

In French v. Duckworth, 178 F.3d 437 (1999), Judge Wood took a position on a separation of powers issue that, when the case reached the Supreme Court, failed to command the vote of a single Justice even though the Justices collectively generated three quite distinct positions. (You can learn the details here). As in the Hulteen case I discussed today, the liberal Justices split down the middle between two positions. This time, neither was the position Wood had taken.

In Ed’s words: “Quite an unimpressive and troubling performance by Wood.”


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