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This Week in Liberal Judicial Activism—Week of November 3



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Unseating miscreants, smearing chocolate, Pryor restraints, and more:

 

 

Nov. 4

1986—What do actual citizens think of liberal judicial activists?  By large margins, the people of California unseat state chief justice Rose Bird (66% no) and justices Cruz Reynoso (60% no) and Joseph Grodin (57% no).  All three justices had been appointed by Jerry (“Moonbeam”) Brown, California’s governor from 1975 to 1983.  Bird had voted to overturn death sentences in all 61 capital cases that had come before her, and all three were widely regarded as activists who imposed their own liberal policy preferences, particularly on crime and business issues.

Nov. 5

1996—If the First Amendment means anything, surely it must mean that the government must be open to funding a piece of “performance art” in which the performer smears chocolate on her breasts and another in which the performer urinates on the stage and turns a toilet bowl into an altar by putting a picture of Jesus on the lid.  Or so some minds imagine.  In Finley v. National Endowment for the Arts, a divided panel of the Ninth Circuit rules that the NEA’s governing statute violates the First Amendment by providing that NEA grant decisions shall “tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public.”  As Judge Andrew Kleinfeld marvels in dissent:

“First Amendment law has taken some odd turns lately. We now live in a legal context prohibiting display of a cross or menorah on government property. But if a cross is immersed in urine, a government grant cannot be withheld on the ground that the art would offend general standards of decency and respect for the religious beliefs of most Americans. The government, under today’s decision, cannot even consider ‘general standards of decency and respect for the diverse beliefs and values of the American public’ when it gives artists grants. Yet we penalize private employers for slowness in firing employees who do not show decency and respect for other employees. This self-contradictory silliness is not built into the Bill of Rights. The First Amendment does not prohibit the free exercise of common sense.”

On review, the Supreme Court reverses the Ninth Circuit, with only Justice Souter in dissent, though the approaches of Justice O’Connor’s majority opinion and Justice Scalia’s opinion concurring in the judgment differ dramatically.  As Scalia puts it:  “Those who wish to create indecent and disrespectful art are as unconstrained now as they were before the enactment of the statute.  Avant-garde artistes such as [the chocolate-smearer and the urinator] remain entirely free to epater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it.” 

Nov. 6

2003—Senate Democrats continue their unprecedented measures of obstruction against judicial nominees, as they defeat for the second time an effort to end their filibuster of President George W. Bush’s nomination of William H. Pryor, Jr., to a seat on the Eleventh Circuit.  Only two Democrats—Zell Miller of Georgia and Ben Nelson of Nebraska—vote in favor of the cloture motion, and forty-three oppose it. 

In February 2004, President Bush recess-appoints Pryor to the seat.  And in June 2005, after the Senate finally confirms Pryor’s nomination (by a 53 to 45 vote), President Bush appoints him to a lifetime seat.

Nov. 7

2000—So much for respecting a capital inmate’s final wishes.  Don Jay Miller, sentenced to death in Arizona for first-degree murder and kidnapping, states that he wishes his execution to proceed as scheduled the next day, declines to seek federal habeas relief, and refuses to authorize any attorney to represent him in seeking habeas relief.  But, in an action brought by a public defender seeking to represent Miller against his will, a divided Ninth Circuit panel, in an opinion by Judge Stephen Reinhardt (in Miller v. Stewart), blocks the execution on the ground that a hearing that established Miller’s competency to represent himself in state post-conviction proceedings did not suffice to establish his competence to “choose to die.”  Judge Pamela Rymer, in dissent, criticizes “the unprecedented view that there is a difference of constitutional magnitude between what [Reinhardt] characterizes as ‘competency to choose to die …’ and competency to make legal decisions.”

Later the same day, the Supreme Court lifts the Ninth Circuit stay.  

For an explanation of this recurring feature, see here.

 


Tags: This Day in Liberal Activism


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