Path 2

Diane Sykes

Diane Sykes is yet another anti-abortion judge that Trump might promote to the nation’s highest court in a second term.

Diane Sykes On Abortion

Sykes Ruled Against Access To Contraception

Sykes Ruled Against The Contraceptive Mandate In The Affordable Care Act

Sykes’ Opinion In Korte v. Sebelius Ruled That Employers Should Not Have To Provide Contraceptives In Their Employee Insurance Plans. According to Newsweek, “As a federal judge in 2013, Sykes wrote an opinion in Korte v. Sebelius, which ruled in favor of employers in the fight over the Affordable Health Care Act’s contraceptive mandate that requires companies to cover some contraceptive costs in their health insurance plans.” [Newsweek, 12/13/16]

Sykes Praised Anti-Abortion Protesters

Sykes Praised Anti-Abortion Protesters As A Trial Judge 

As A Trial Judge, Sykes Said That Anti-Abortion Protesters Who Blocked Access To An Abortion Clinic Had “Fine Character” And That Their Motivations Were Pure. According to WEAU 13, “Diane Sykes, 58, served as a Milwaukee County circuit judge from 1992 to 1999. She handed down the sentence in 1993 after the protesters bound themselves to a car blocking an abortion clinic doorway. She told them their motivations were pure and they possessed ‘fine character’ — but their activities were illegal.” [WEAU 13, 5/18/16]

During Her 2003 Nomination Process, Sykes Dodged Questions About Abortion

Sykes Dodged Questions About Her Views On Abortion During Her Nomination Proceedings

Sykes Refused To Answer Her Views On Abortion During Her 2003 Nomination To The Federal Bench. According to Chicago Magazine, “George W. Bush nominated her to the federal bench in 2003 and she was confirmed by the U.S. Senate in 2004 by the wide margin of 70 to 27. She had the backing of Wisconsin’s two democratic senators, Russ Feingold and Herb Kohl. Illinois’s Dick Durbin was a no vote, blasting Sykes for refusing to answer his questions on her views on abortion and Miranda rights. He called her, among other things, biased against defendants.” [Chicago Magazine, 1/16/17]

Sykes On LGBTQ Rights

Sykes Ruled Against LGBTQ Rights

Sykes Ruled That A Religious Student Group Could Ban Gay Members

2006: Sykes Ruled That A Religious Student Group That Barred Gay Membership Had A Constitutional Right To Receive Government Subsidies. According to Newsweek, “In 2006, the Christian Legal Society v. Walker case involved a religious student group and Southern Illinois University’s School of Law. The dean said the group’s membership policies, which bar those who engage in or affirm gay conduct, violate the university’s nondiscrimination policies. The group sued the university for violating its First Amendment and 14th Amendment rights. In court, Sykes said the group didn’t violate the university’s affirmative action policy and has a constitutional right to continue receiving government subsidies. ‘Subsidized student organizations at public universities are engaged in private speech, not spreading state-endorsed messages,’ she wrote.” [Newsweek, 12/13/16

The Supreme Court Ruled In A Separate Case That Colleges Could Require Student Groups To Accept All Persons Wishing To Be Members 

2010: The Supreme Court Ruled In Christian Legal Society Chapter v. Martinez That Requiring An All-Comers Policy For Student Organizations Did Not Violate The First Amendment. According to Oyez, “Did the Ninth Circuit err when its holding runs directly contrary to the Seventh Circuit’s 2006 decision in Christian Legal Society v. Walker? No. The Supreme Court affirmed the Ninth Circuit, holding that the college’s all-comers policy is a reasonable, viewpoint-neutral condition on access to the student organization forum; and, therefore, did not transgress First Amendment limitations. With Justice Ruth Bader Ginsburg writing for the majority, the Court reasoned that the same considerations that have led the Court to apply a less restrictive level of scrutiny to speech in limited public forums, counseled the same result in this case. The Court further reasoned that, considering this constitutional inquiry occurs in the education context, Hasting’s all-comers policy is reasonable and viewpoint neutral.” [Oyez, viewed 6/24/24

Sykes Wrote A Dissenting Opinion Arguing That The Civil Rights Act Did Not Protect An Employee Based On Sexual Orientation

Sykes Wrote A Dissenting Opinion For A Case That Ruled Title VII Of The Civil Rights Act Protected Employees Based On Their Sexual Orientation. According to the American Bar Association, “In an opinion praised by gay-rights advocates, an en banc federal appeals court has ruled that Title VII of the Civil Rights Act protects employees from discrimination on the basis of sexual orientation. The 8-3 decision on Tuesday by the 7th U.S. Circuit Court of Appeals at Chicago highlights differences in statutory interpretation. […] Judge Diane Sykes, who was on President Donald Trump’s list of potential Supreme Court nominees, wrote the dissent. She said Hively was treated unjustly if she was denied a job because of her sexual orientation, but Title VII doesn’t provide a remedy. Sykes said the statute should be interpreted, as a reasonable person would have understood it when adopted. The majority, however, ‘deploys a judge-empowering, common-law decision method that leaves a great deal of room for judicial discretion,’ she wrote. ‘The result is a statutory amendment courtesy of unelected judges,’ Sykes wrote. ‘Judge Posner admits this; he embraces and argues for this conception of judicial power. The majority does not, preferring instead to smuggle in the statutory amendment under cover of an aggressive reading of loosely related Supreme Court precedents. Either way, the result is the same: the circumvention of the legislative process by which the people govern themselves.’” [American Bar Association, 4/5/17]

The Supreme Court Disagreed With Sykes And Upheld Title VII Protections Based On Sexual Orientation 

June 2020: The Supreme Court Upheld The Decision By The Seventh Circuit In Bostock v. Clayton County And Validated Title VII Protections Based On Sexual Orientation. According to NBC News, “The Supreme Court’s landmark ruling in Bostock v. Clayton County, Georgia — which was widely praised by LGBTQ advocates but condemned by social conservatives — will likely have broad ramifications that go far beyond employment protections, according to several legal experts. In the 6-3 decision last Monday regarding the scope of ‘employment discrimination based on … sex,’ which is banned under Title VII of the Civil Rights Act of 1964, the high court stated that ‘it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.’” [NBC News, 6/23/20

Sykes Argued Against A Policy That Would Have Made It Easier For The Children of Same-Sex Couples To Enroll In School And Access Insurance 

2017: Sykes Argued From The Bench That A Same-Sex Couple Should Not Be Listed On A Child’s Birth Certificate Without Adoption, Saying, “You Can’t Overcome Biology.” According to the Indianapolis Star, “In oral arguments Monday, a panel of three judges for the Seventh Circuit Court of Appeals examined whether Indiana discriminates by not recognizing two married women both as parents on their children’s birth certificates without having to adopt. Judge Diane S. Sykes drew distinctions between biological parentage and parental rights, and which of the two should be represented on birth certificates. ‘You can’t overcome biology,’ Sykes said. ‘If the state defines parenthood by virtue of biology, no argument under the Equal Protection Clause or the substantive due process clause can overcome that.’ […] The state of Indiana is appealing a ruling by a district judge who sided with the same-sex couples and ordered the state to recognize both women as parents on birth certificates of children who are conceived through a sperm donor.” [Indianapolis Star, 3/23/17]

  • The Process Of Adoption Can Be Cost Prohibitive. According to the Indianapolis Star, “The adoption process, which can be costly, amends the birth certificate to recognize adoptive parents. The original record, Fisher said, is still retained.” [Indianapolis Star, 3/23/17]

The Defense Argued Preventing Same-Sex Couples To Be Listed On The Birth Certificate Without Adoption Could Make It More Difficult To Access Insurance Coverage And Education. According to the Indianapolis Star, “Not recognizing the non-birth mother, the lawsuit said, could make it more difficult for families to be covered by insurance policies, or for the parent to enroll her child in school.” [Indianapolis Star, 3/23/17]

Sykes Ruled That A Strip Search By A Transgender Guard Of A Muslim Inmate Violated The Prisoner’s Free Exercise Rights 

September 2022: Sykes Ruled That A Strip Search By A Transgender Guard Of A Muslim Inmate Violated The Prisoner’s Right To Free Exercise Of Religion. According to the Milwaukee Journal Sentinel, “A Wisconsin prisoner who was strip-searched by a transgender male guard says the search unlawfully violated his Muslim faith, and a federal court has ruled it shouldn’t happen again. The search of Rufus West took place in 2016 at Green Bay Correctional Institution. West sued after he was denied exemptions from such future searches, and was threatened with discipline if he continued to complain. A federal district judge dismissed the lawsuit, finding West hadn’t shown a substantial burden to his free exercise of religion. Even if he had, the search was legal as the least restrictive way to further a compelling governmental interest, the judge found. The 7th U.S. Circuit Court of Appeals recently reversed, and granted relief to West. Writing for a three-judge panel, Chief Judge Diane Sykes found West is entitled to judgment under the Religious Land Use and Institutionalized Persons Act of 2000, and can pursue his second claim under the Fourth Amendment. ‘There’s no dispute (Rufus’s) objection to cross-sex strip searches is both religious in nature and sincere,’ Sykes wrote. ‘The prison has substantially burdened his religious exercise by requiring him to either submit to cross-sex strip searches in violation of his faith or face discipline.’” [Milwaukee Journal Sentinel, 9/20/22

Sykes On Guns

Sykes Ruled In Favor Of Gun Rights 

Sykes Ruled That Chicago’s Ban On Firing Ranges Was Unconstitutional 

2011: Sykes Wrote For A Unanimous Court That Chicago’s Ban On Firing Ranges Violated The Second Amendment. According to Newsweek, “In a post on its website in 2011, the National Rifle Association suggested that readers ‘put her on your Supreme Court shortlist for the next Republican administration’ because of the unanimous opinion she wrote in Ezell v. City of Chicago. In the majority opinion, she held that firing ranges are protected under the Second Amendment, and she granted a preliminary injunction against Chicago’s ban on firing ranges inside city limits.” [Newsweek, 12/13/16]

Sykes On Voting Rights

Sykes Ruled To Limit Voting Rights

Sykes Voted To Reinstate A Law That Had Been Found To Restrict Voting Rights “On Account Of Race Or C0lor”

April 2014: The United States District Court In Wisconsin Found That Wisconsin’s Voter ID Law Resulted In “The Denial Or Abridgment Of The Right To Vote On Account Of Race Or Color.” According to the majority decision for Frank, et al v. Scott Walker et al v Deininger, et al, “To summarize my findings of fact and conclusions of law regarding the plaintiffs’ Section 2 claim: Act 23 has a disproportionate impact on Black and Latino voters because it is more likely to burden those voters with the costs of obtaining a photo ID that they would not otherwise obtain. This burden is significant not only because it is likely to deter Blacks and Latinos from voting even if they could obtain IDs without much difficulty, but also because Blacks and Latinos are more likely than whites to have difficulty obtaining IDs.” [Majority Decision for Frank, et al v. Scott Walker et al v Deininger, et al, 4/29/14]

August 2016: Despite A Trial Court’s Previous Ruling That The Voter ID Law Resulted In Denial Of The Right To Vote On Account Of Color, Sykes Voted For It To Be Reinstated. According to Think Progress, “In a boost to Republican presidential candidate Donald Trump, an especially conservative panel of three Republican-appointed judges stayed a trial judge’s decision weakening Wisconsin’s voter ID law. […] Wednesday’s order in Frank v. Walker is the Wisconsin voter ID law’s second trip before a conservative panel of the United States Court of Appeals for the Seventh Circuit. Although a federal trial court struck the law down prior to the 2014 election, a panel of three Republican judges reinstated the law just hours after hearing oral arguments. After some additional proceedings in the Seventh Circuit, the case returned to the trial court. Last month, Judge Lynn Adelman handed down another decision that significantly weakened the law’s ability to disenfranchise voters. Under Adelman’s decision, voters who lack ID may fill out an affidavit at the polls and then exercise their right to the franchise. […] The most recent Seventh Circuit panel consisted of Judges Frank Easterbrook and Michael Kanne, both Reagan appointees, and Diane Sykes, a George W. Bush appointee.” [Think Progress, 8/10/16]

The Seventh Circuit Denied An En Banc Hearing 

August 2016: The Seventh Circuit Denied A En Banc Hearing. According to the Seventh Circuit Court of Appeals in Frank v. Walker (2016), “The Western District has the authority to monitor compliance with its injunction, and we trust that it will do so conscientiously between now and the November 2016 election. On these understandings, the petitions for initial hearing en banc are DENIED.” [Frank v. Walker (2016), 163003 & 163052, 8/29/16

Sykes On Discrimination

Sykes Ruled In Favor Of Discrimination

Sykes Ruled That Extended Leave Was Not Protected Under The Americans With Disabilities Act

2018: Sykes Wrote The Majority Opinion For A Case Which Ruled That Extended Absences Were Not Classified As A Reasonable Accommodation Under The Americans With Disability Act. According to the Harvard Law Review, “Recently, in Severson v. Heartland Woodcraft, Inc., the Seventh Circuit broke rank with its sister circuits when it held that a leave of absence spanning multiple months is per se unreasonable under the ADA. […] The Seventh Circuit affirmed. Writing for the panel, Judge Sykes held that Heartland did not violate the ADA when it terminated Severson’s employment. The court’s opinion focused primarily on a single question: whether a multimonth extension of Severson’s leave of absence qualified as a ‘reasonable accommodation’ under the ADA. In answering that question with a resounding ‘no,’ the Severson court relied on the reasoning of a prior Seventh Circuit decision: Byrne v. Avon Products, Inc.”  [Harvard Law Review, 4/2/18]

The Supreme Court Denied Cert 

The Supreme Court Denied Cert. According to the U.S. Supreme Court, a petition for a writ of certiorari was denied on April 2, 2018. [Supreme Court of the United States, viewed 6/24/24

Sykes Sided With A Decision That Ruled A “Separate-But-Equal Arrangement” Was A Permissible Policy

2017: Sykes Ruled That A Company Attempting To Match The Racial Makeup Of Its Stores To The Demographics Of The Area By Transferring Employees Did Not Violate Federal Civil Rights Law. According to the Cook County Record, “On Nov. 21, the full panel of judges at the U.S. Seventh Circuit Court of Appeals in Chicago announced its refusal to reconsider a three-judge panel’s decision earlier this summer to reject the U.S. Equal Employment Opportunity Commission’s case against auto parts seller Autozone, in which the regulatory agency took up a former store employee’s accusations the retailer violated federal civil rights law by allegedly attempting to match racial makeup of its store’s workers to the demographic characteristics of the communities in which those stores may be located. In June, the panel, including judges Frank H. Easterbrook, Michael S. Kanne and Diane S. Sykes, rejected the EEOC’s appeal of Chicago federal district judge’s decision. In that decision, the Seventh Circuit judges unanimously shot down the EEOC’s contention federal civil rights law allows for discrimination actions to be brought, even if no employees suffered any loss in pay, benefits, job position or responsibilities as a result of the alleged discriminatory action.” [Cook County Record, 11/29/17

The Seventh Circuit Denied An En Banc Hearing, With Sykes In The Majority  

Sykes Joined The Majority Decision To Deny EEOC Petition To Rehear The Case. According to the majority decision in the case of the United States Equal Employment Opportunity Commission v. Autozone, “Before WOOD, Chief Judge, and FLAUM, EASTERBROOK, KANNE, ROVNER, SYKES, HAMILTON, and BARRETT, Circuit Judges. On Petition for Rehearing En Banc.  PER CURIAM. On consideration of the EEOC’s petition for rehearing, the panel has voted unanimously to deny rehearing. A judge in active service called for a vote on the request for rehearing en banc. A majority of judges in active service voted to deny rehearing en banc. Chief Judge Wood and Judges Rovner and Hamilton voted to grant rehearing en banc. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.” [United States Equal Employment Opportunity Commission v. Autozone (2017), 15-3201, 11/21/17]

The Dissent Said That The Majority Opinion Made “Separate-But-Equal” Arrangements Permissible 

The Dissent Argued Sykes And The Majority Permitted Autozone To Operate Under A “Separate-But-Equal Arrangement.” According to the majority decision in the case of the United States Equal Employment Opportunity Commission v. Autozone, “Title VII makes it unlawful for any employer to ‘limit, segregate, or classify his employees … in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.’ 42 U.S.C. § 2000e-2(a). The Equal Employment Opportunity Commission argues that AutoZone violated this provision when it used race as the defining characteristic for sorting employees into separate facilities — in this case, a ‘Hispanic’ store located at South Kedzie Avenue and West 49th Street, and an ‘African-American’ store in Chicago’s Roseland neighborhood. The Commission, whose factual allegations we must credit at this stage, claims that AutoZone went so far as to transfer one African-American employee, Kevin Stuckey, from the Kedzie store to the Roseland store in order to ensure the racial homogeneity of both locations. Under the panel’s reasoning, this separate-but-equal arrangement is permissible under Title VII so long as the ‘separate’ facilities really are ‘equal.’ […] Because the panel’s opinion, as I read it, endorses the erroneous view that ‘separate-but-equal’ workplaces are consistent with Title VII, I respectfully dissent from denial of rehearing en banc” [United States Equal Employment Opportunity Commission v. Autozone (2017), 15-3201, 11/21/17]

Sykes On Terrorism Victims

Sykes Ruled Against Victims Of Terrorism Seeking Compensation 

Sykes Ruled That Victims of A 1997 Terrorist Attack Could Not Collect Their Judgment Because Iran Was Entitled To A Presumption Of Immunity 

Sykes Wrote The Majority Ruling Against Victims Of A Terrorist Attack In Israel Who Were Seeking Compensation From Iran. According to the State of Wisconsin Bar, “American victims of a 1997 terrorist attack in Israel recently lost an early appeals battle to satisfy a $71.5 million judgment obtained against the Islamic Republic of Iran. Specifically, the U.S. Court of Appeals for the Seventh Circuit ruled that Iran did not waive protections afforded to foreign nations with property in the U.S. by failing to appear, and plaintiffs seeking collection of a $71.5 million judgment against Iran must narrow their discovery request to identifiable property, not all Iranian-owned assets in the U.S. […] In Rubin et al., v. Iran, No. 08-2805 (March 29, 2011), a panel for the Seventh Circuit Court of Appeals reversed the district court. The panel – in an opinion written by Judge Diane Sykes – concluded that Iran was entitled to a presumption of immunity under the FSIA regardless of whether it appeared or not, and the district court could not issue a general-asset discovery order. ‘The statute cloaks the foreign sovereign’s property with a presumption of immunity from attachment and execution unless an exception applies,’ Judge Sykes wrote, ‘and immunity does not depend on the foreign state’s appearance in the case.’.” [State of Wisconsin Bar, 4/6/11]

The Supreme Court Upheld The Decision

The Supreme Court Unanimously Upheld The Seventh Circuit’s Decision. According to Oyez, “No, Section 1610(g) does not provide a freestanding basis for parties to attach and execute against the property of a foreign state. Justice Sonia Sotomayor delivered the opinion for the 8-0 unanimous Court.” [Oyez, accessed 6/24/24

Sykes On Criminal Defendants

Sykes Ruled Against The Rights Of Criminal Defendants  

Sykes Upheld A Confession That Had Been Previously Thrown Out By A Lower Court Due To Police Coercion 

2017: Sykes Voted To Uphold A Confession In The “Making A Murderer” Case That Had Previously Been Thrown Out For Being The Product Of Police Coercion. According to the Milwaukee Journal Sentinel, “A federal appeals court on Friday ruled 4-3 that Brendan Dassey’s conviction in what became known as the ‘Making A Murderer’ case shouldn’t be thrown out after all. The Chicago-based U.S. Seventh Circuit Court of Appeals decision reinstates Dassey’s conviction and sharply reduces his chances of getting out of prison, as his lawyers would have to get the U.S. Supreme Court to hear and reverse Friday’s decision. Judge David Hamilton wrote the majority opinion, joined by Judges Diane Sykes, Michael Kanne and Frank Easterbrook. They found that despite Dassey’s age (he was 16 at the time), his lower intellect and suggestibility, his confession that he helped his uncle, Steven Avery, kill Teresa Halbach at the family’s Manitowoc junkyard in 2005 was not coerced. […] A federal magistrate judge in Milwaukee had granted Dassey’s petition for release or a new trial, finding his confession had been unlawfully obtained and used against him. The state appealed, and a three-judge panel of the Seventh Circuit affirmed, 2-1, prompting prosecutors to seek review by the full Seventh Circuit court.” [Milwaukee Journal Sentinel, 12/8/17]

2016: A Federal Judge Previously Overturned Brendan Dassey’s Murder Conviction After Concluding That His Confession Was Involuntary Due To “Repeated False Promises” From Prosecutors, His Age, And His “Intellectual Deficits.” According to the Milwaukee County Sentinel, “Brendan Dassey, who was convicted along with his uncle, Steven Avery, in the murder of Teresa Halbach, had that conviction overturned Friday by a federal magistrate judge in Milwaukee.  The shocking ruling, in a case made famous in the Netflix series ‘Making A Murderer,’ could result in Dassey getting a new trial or being freed from prison. It gives prosecutors 90 days to decide whether to retry Dassey, although an appeal could extend the proceedings. In his 91-page decision, U.S. Magistrate Judge William Duffin was highly critical of investigators, Dassey’s pretrial attorney and the state courts on how they handled the case, concluding that Dassey’s constitutional rights were violated. He found that the prosecutor’s investigators made false promises to Dassey during multiple interrogations. ‘These repeated false promises, when considered in conjunction with all relevant factors, most especially Dassey’s age, intellectual deficits, and the absence of a supportive adult, rendered Dassey’s confession involuntary under the Fifth and Fourteenth amendments,’ Duffin wrote.” [Milwaukee Journal Sentinel, 8/12/16

The Supreme Court Denied Cert 

June 2018: The Supreme Court Denied Cert. According to SCOTUSblog, the Supreme Court denied a writ of certiorari on June 25, 2018. [SCOTUSblog, viewed 6/24/24

Sykes Wrote A Dissent Where She Argued A Conviction Should Not Be Overturned Because A Juror Did Not Understand English 

May 2003: Sykes Dissented From A Decision Where A Conviction Was Invalidated Because A Juror Indicated He Could Not Understand English. According to the Northwestern University Law Review, “While serving on the Wisconsin Supreme Court, then-Justice Sykes dissented from a decision invalidating a conviction because one of the jurors indicated he could not understand English. Justice Sykes reasoned that impaneling the juror was harmless error.” [Northwestern University Law Review, viewed 6/24/24


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