Wall Street Journal columnist Allysia Finley smeared "legal legend" federal Judge Thelton Henderson, the Department of Justice's first African-American civil rights attorney, and ignored Supreme Court precedent in order to attack a recent court ruling that re-affirmed California's prisons are unconstitutionally overcrowded.

On April 11, a three judge panel issued a "blistering" opinion that denied California's most recent request to be released from its court-ordered obligations to reduce unconstitutional overcrowding in its prison system, and warned the state it would be found in contempt if it continued to delay its compliance. The panel included Henderson, the judge who the state deferred to in the original class-action suit. From the WSJ, which characterized Judge Henderson as “dangerous to the constitutional system of checks and balances,” Finley wrote:

Judge Henderson is perhaps best known for his infamous decision in 1996 to block California's Prop. 209, a voter approved-initiative banning affirmative action in state government and institutions, on the pretext that the ballot measure was discriminatory and likely unconstitutional.

[...]

Judge Henderson boasted to the San Jose Mercury last year that the Prop. 209 opinion was “probably as careful a decision as I've ever drawn up.”

That sets a low bar for assessing a 2006 Henderson decision which held that sub-standard medical care in California prisons violated the 8th amendment's prohibition against cruel and unusual punishment.

[...]

When [Governor Jerry] Brown suggested he would appeal the panel's court order to the Supreme Court, Judge Henderson and his liberal peers on the panel (also appointed by Mr. [Jimmy] Carter) threatened to hold him in contempt and dun the state.

Mr. Brown has in the past favored using the courts to redress social inequities, but perhaps his judicial thinking will evolve after getting mugged by liberal judges and the plaintiffs bar.

For more than 10 years, the state of California has been the defendant in lengthy litigation over the consequences of the extreme overcrowding at its prisons. Conceding early on that this overcrowding constituted cruel and unusual punishment under the Eighth Amendment for prisoners with serious medical conditions, the state has been under various forms of court supervision due to its inability to rectify the constitutional violations. The April 11 opinion was the latest attempt of the courts to bring California into constitutional compliance.

But Finley not only chooses to smear Judge Henderson for an unsurprising panel opinion that included another senior district judge and U.S. Court of Appeals for the Ninth Circuit Judge Stephen Reinhardt, she also ignores the fact that of the two Henderson opinions she criticizes as judicial “legislat[ing],” one is part of a doctrine currently under review by the Supreme Court, and the other was resoundingly upheld by the Court in an opinion written by conservative Justice Anthony Kennedy.

Judge Henderson's reasoning on holding the affirmative action ban in California unconstitutional, although reversed in the Ninth Circuit in 1997, was recently accepted in the Sixth Circuit in the wake of the Supreme Court's Grutter v. Bollinger (2003) decision, and is now currently before the Court in Schuette v. Cantrell. The findings of Henderson's other referenced opinion - that Finley unfavorably compares to a “low bar” - were upheld in the 2011 Supreme Court opinion of Brown v. Plata.

In fact, in Brown v. Plata, Justice Kennedy directly quoted the opinion of Judge Henderson that Finley criticizes, in support of the Supreme Court's affirmation of orders requiring California cease its violations of the Eighth Amendment and promptly address its overcrowding crisis. As explained by Henderson, "[t]he harm already done in this case to California's prison inmate population could not be more grave, and the threat of future injury and death is virtually guaranteed in the absence of drastic action." From Justice Kennedy's majority opinion, which approvingly quoted Henderson:

After this action commenced in 2001, the State conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights. The State stipulated to a remedial injunction. The State failed to comply with that injunction, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that “the California prison medical care system is broken beyond repair,” resulting in an “unconscionable degree of suffering and death.” App. 917. The court found: "[I]t is an uncontested fact that, on average, an inmate in one of California's prisons needlessly dies every six to seven days due to constitutional deficiencies in the [California prisons']medical delivery system." Ibid.

The WSJ's attack on "an activist jurist in California appointed by Jimmy Carter" (as described by the editorial page) smears the integrity of Judge Henderson's jurisprudence without mentioning that both opinions referenced have been validated by higher levels of judicial review, including the Supreme Court. Furthermore, Henderson is most definitely not "best known" for his 1996 opinion that struck down the California affirmative action ban. From an inaugural statement for the Thelton Henderson Center for Social Justice at Boalt Hall at UC Berkeley School of Law:

One of only two African-American students in the Boalt Hall class of 1962, Thelton started his legal career as the first black attorney at the Civil Rights Division of the US Department of Justice. He went South to investigate voting rights abuses and soon confronted the challenge of being a black man in authority within the largely white world of the American legal system. He became a bridge between the Kennedy Justice Department and the leaders of the civil rights movement whom he came to know when they were all forced to lodge in the same segregated motels throughout the South. As a young lawyer and a representative of the federal government, Henderson grappled with many tough choices, including the decision to loan his car to Dr. Martin Luther King, Jr. one fateful night, a crucial act which ultimately cost him his job.

Returning to California , Henderson became the first legal aid attorney in East Palo Alto once again forging a new path. Distressed to learn that neighboring Stanford Law School had only graduated its first black attorney in 1968, Thelton became its Assistant Dean in charge of recruiting students of color. When he left Stanford in 1976 to practice law, twenty percent of the entering class were students of color and Henderson 's program became a nationwide model. While Henderson was in private practice with partners Sandy Rosen and Joe Remcho and teaching at Golden Gate Law School , he was nominated to the federal bench. Selected by President Jimmy Carter in 1980 to sit in the Northern District of California, Thelton Henderson became the only African-American judge on that court for ten years. He was selected as its first black Chief Judge in 1990 and served in that post until 1997.