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This Week in Liberal Judicial Activism—Week of November 17



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Mrs. Anthony Lewis, monkey business, and modern pioneering:

 

 

Nov. 18

2003—By a vote of 4 to 3, the Massachusetts supreme court (in Goodridge v. Department of Public Health) imposes same-sex marriage on the benighted citizens of Massachusetts, as the court rules that a state statute defining marriage as the legal union of a man and a woman—a statutory definition that dates back to colonial times and that is derived from English common law—somehow violates the “individual liberty and equality safeguards” of the state constitution.  The majority opinion by chief justice Margaret H. Marshall, wife of former New York Times columnist Anthony Lewis, is widely credited with helping to secure President George W. Bush’s re-election in 2004.

Nov. 22

2006—It’s monkey business as usual at the Ninth Circuit.  A divided panel, in an opinion by higher primate William Fletcher, disrupts established principles of administrative law as it rules both (1) that a plaintiff with a “particularly close emotional attachment” to a chimpanzee named Terry has standing to challenge the Department of Agriculture’s decision not to adopt a draft policy providing guidance on how to ensure the psychological well-being of nonhuman primates, and (2) that the decision not to adopt the draft policy is judicially reviewable.  Judge Kozinski concludes his thorough dissent with this summary:

“The majority expands the law of standing beyond recognition. It unmoors administrative law from sound principles of judicial review, and insinuates the federal courts into sensitive policy judgments that are the exclusive province of the Executive Branch. It ignores the teachings of the Supreme Court and misapplies the precedents it relies on. It will cause no end of mischief. Count me out.”

Nov. 23

1998—Purporting to be “mindful that a solemn act of the General Assembly carries with it a presumption of constitutionality that is overturned only when it is established that the legislation ‘manifestly infringes upon a constitutional provision or violates the rights of the people,’” the Georgia supreme court instead shows itself eager to continue its supposed legacy of being a “pioneer in the realm of the right of privacy.”  To that end, in Powell v. State, it concocts a state constitutional right to consensual sodomy:  as it puts it, the laws may not criminalize “the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent.”  Never mind that its supposed right recognizes, and is limited by, state authority to establish an age of consent (and to bar consent in cases of adult incest), and that the case before it involved a 17-year-old who, as it happens, testified that the defendant—her aunt’s husband—had sodomized her “without her consent and against her will.”  (The jury verdict of acquittal on two charges indicates that her testimony did not convince a jury beyond a reasonable doubt).  A concurring justice praises the majority opinion as “inspired”—perhaps, but by what?—and laments that some might criticize the opinion rather than “engag[e] in constructive ideological discourse.”

Justice Carley, in dissent, argues that the precedent on which the majority relies “clearly interprets the constitutional right of privacy as subject to compliance with this state’s criminal statutes.”  He faults the majority for “acting as social engineers rather than as jurists” and for “judicially repeal[ing] laws on purely sociological considerations.”  

For an explanation of this recurring feature, see here.

 


Tags: This Day in Liberal Activism


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