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Bench Memos

NRO’s home for judicial news and analysis.

This Day in Liberal Judicial Activism—August 6



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1993—In a harbinger of nominations to come, President Clinton’s first batch of nominees to the federal courts of appeals includes Tennessee supreme court justice, and liberal judicial activist, Martha Craig Daughtrey. Among other things, as a state supreme court justice, Daughtrey never voted to affirm a death sentence, and she joined an opinion condemning the death penalty (see This Day for Apr. 26, 1987). In an opinion full of frolics and detours, she extrapolated a state constitutional “right of procreational autonomy” from the provisions of the state constitution that protect freedom of worship, that prohibit unreasonable searches and seizures, that guarantee freedom of speech, and that regulate the quartering of soldiers in homes. (See This Day for June 1, 1992.) She also found that the state constitution protects obscenity. (See This Day for May 17, 1993.)

2012—In an opinion for a divided panel of the Ninth Circuit (in Jackson v. Nevada), arch-activist Stephen Reinhardt, joined by Obama appointee Mary H. Murguia, rules that a man convicted of multiple charges relating to the sexual assault of his “on-again, off-again girlfriend” (Reinhardt’s indelicate phrase) was entitled to federal habeas relief because the state courts had supposedly unreasonably applied clearly established Supreme Court precedent regarding his constitutional right to present a defense.

But, as the unanimous Supreme Court will rule less than a year later in a per curiam summary reversal, the evidence that the defendant had sought to admit was inadmissible as a matter of state law, and the “constitutional propriety” of the rule that the state courts applied, far from being contrary to clearly established Supreme Court precedent, “cannot be seriously disputed.”

As the Court observes, by limiting federal habeas relief to cases in which there has been a violation of “clearly established Federal law, as determined by the Supreme Court,” the federal law known as AEDPA requires “substantial deference” to state convictions. The Court faults Reinhardt for instead “framing our precedents at such a high level of generality” that “even the most imaginative extension of existing case law” is mispresented as supposedly clearly established federal law.



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