JUDGE WENDELL GRIFFEN: Thinking about Brown v. Board. And more.

The 8th U.S. Circuit Court of Appeals today rejected Circuit Judge Wendell Griffen’s request that the entire court review a three-judge panel’s decision dismissing his lawsuit against the Arkansas Supreme Court for removing him from all cases related to the death penalty.

The decision came in a brief order without explanation. Judge Jane Kelly, who’d voted in favor of Griffen originally, would have granted the request for an en banc hearing by all members of the appeals court.

Griffen said his 1st Amendment rights were violated by the Supreme Court’s decision to remove him from death penalty cases on account of his participation in a demonstration against the death penalty. The 8th Circuit said the Arkansas court could make rules on his duties as a public official and that his 1st Amendment rights as a citizen had not been abridged.

Michael Laux, Griffen’s lawyer, said they would seek a review by the U.S. Supreme Court. He issued a statement:

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“The law on this is rather clear. In 2002, the U.S. Supreme Court stated that the ‘appearance’ of bias is not a compelling state interest. Here, the defendants presented zero evidence of actual bias by Judge Griffen, because there is none. Therefore, today’s unfortunate 8th Circuit decision–one which elevates appearances to the level of actual bias–is inconsistent with well-settled precedence. We anticipated this and we will continue the fight to SCOTUS.”